Supreme Court correcting itself? Supreme Court will re-hear the 2009 Death Appeal decided on the basis of a wrong precedent.

Finally Supreme Court of India has started its effort to rectify a grave error committed by some of its earlier benches in the interpretation of the doctrine of “rarest of rare”. A Bench of Justices A.K. Patnaik and Ibrahim Kalifulla admitted the petitions filed by Ankush Maruti Shinde and others, accepting the arguments of Senior Advocate Soli Sorabjee that the case –‘Ankush Maruti Shinde & Ors. vs State Of Maharashtra’ was decided relying on a wrong precedent- Ravji alias Ram Chandra v. State of Rajasthan [(1996) 2 SCC 175].Facts;Of the six accused, three were awarded life sentence by the High Court while for the remaining three, the death sentence was confirmed. The accused were found to have committed five murders and had raped a lady (who survived) and a child of 15 years of age (who died). Supreme Court awarded the death penalty to all the six accused. Supreme Court found the crime to be cruel and diabolic; the collective conscience of the community was shocked; the victims were of a tender age and defenseless; the victims had no animosity towards the accused and the attack against them was unprovoked. Considering these factors, a Bench of Arijit Pasayat.J and Mukundakam Sharma.J awarded the death penalty to all the accused .In Para-22 of the impugned Judgment it is held as follows;“Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance”.“The murders were not only cruel, brutal but were diabolic. The High Court has held that those who were guilty of rape and murder deserve death sentence, while those who were convicted for murder only were to be awarded life sentence. The High Court noted that the whole incident is extremely revolting, it shocks the collective conscience of the community and the aggravating circumstances have outweighed the mitigating circumstances in the case of accused persons 1, 2 and 4; but held that in the case of others it was to be altered to life sentence.“The High Court itself noticed that five members of a family were brutally murdered, they were not known to the accused and there was no animosity towards them. Four of the witnesses were of tender age, they were defenceless and the attack was without any provocation. Some of them were so young that they could not resist any attack by the accused. A minor girl of about fifteen years was dragged to the open field, gang-raped and done to death.“Above being the position, the appeals filed by the accused persons deserve dismissal, which we direct and the State's appeals deserve to be allowed. A-2, A-3 and A-5 are also awarded death sentence. In essence all the six accused persons deserve death sentence.”It was in the landmark judgment -Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [(2009) 6 SCC 498], Justice S.B.Sinha pointed out that Ravji's case and the six subsequent cases in which Ravji was followed were decided per incuriam, as the law laid down therein is contrary to the law laid by the Constitution Bench of the Supreme Court in Bachan Singh. In Bachan Singh , Court held that before giving death sentence Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but must also give due consideration to the circumstances of the criminal. It is also observed that it can be safely said that the Bachan Singh threshold of "the rarest of rare cases" has been most variedly and inconsistently applied by the various High Courts as also the Supreme Court.The following Judgments are held to be per-incurium in Santhosh bariyar Case(1) Shivaji @ Dadya Shankar Alhat v.. State of Maharashtra, [2008 (15) SCC 269](2) Mohan Anna Chavan v. State of Maharashtra, [2008 (7) SCC 561],(3) Bantu v. State of Uttar Pradesh, [2008 (11) SCC 113],(4) Surja Ram v. State of Rajasthan, [1996 (6) SCC 271],(5) Dayanidhi Bisoi v. State of Orissa, [2003 (9) SCC 310] and(6) State of Uttar Pradesh v. Sattan @ Satyendra and Others, [2009 (4) SCC 736]In a latest Judgment Mohinder Singh v.State...

Supreme Court correcting itself? Supreme Court will re-hear the 2009 Death Appeal decided on the basis of a wrong precedent.

M.A.Rashid

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