Abolish Death Penalty India: Calcutta HC commutes death sentence of child killer

Thursday, April 9, 2015

Calcutta HC commutes death sentence of child killer

TNN | Apr 3, 2015, 04.49AM IST

KOLKATA: Calcutta high court on Tuesday spared the life of a man sentenced to death for raping and murdering his 13-year-old stepson in September 2007. Sanjay Haldar alias Batul was on death row but will now spend 25 years in jail. He was the ninth prisoner awaiting execution in the state according to a January 2015 headcount. The trial court had sentenced him to death because it felt Sanjay would be a threat to society if allowed to walk free, but a high court division bench thought differently.

The case dates back to September 27, 2007, when a woman, Mamata Haldar, walked into East Jadavpur police station to file a complaint about her missing son. She said that the 13-year-old boy was last seen with her second husband, Sanjay, and that he always hated the child. She said Sanjay regularly abused him sexually and threatened to kill him. The child's body was found dumped in Dhapa and an autopsy confirmed that he had been raped and strangled to death. The prosecution fielded 14 witnesses, one of whom had seen Sanjay and the child just before the murder at Dhapa. The witness picked out Sanjay from a line-up and a trial court sentenced Sanjay to death, noting that it was a heinous crime. "The victim was helpless. The accused, his stepfather, was in a dominating position and had carnal intercourse with him for several days in a very cold and pre-planned way, concealed evidence and brutally strangled him.

The conduct of the accused proves that he is a man who cannot be rectified or reformed. His free movement in society will be dangerous. If this kind of crime is treated leniently, wrong signals will go out to society," the order read. A high court bench of Justice Ashim Kumar Roy and Justice Ishan Chandra Das agreed that the crime was "undoubtedly grave, serious and heinous". "He had a dirty and perverted mind and no control over his carnal desire. The victim was a helpless boy. Not only did he have carnal intercourse with the boy regularly but murdered him and destroyed evidence.

Nevertheless, it cannot be held that he is such a dangerous person that to spare his life would endanger the community," the bench said, adding that seen in the light of the principle laid down by Supreme Court, Sanjay should be jailed for 25 years rather than executed. SC guidelines on imposing death penalty 1) The court must consider every relevant circumstance relating to the crime and the criminal 2) If the court finds that the offence is of an exceptionally depraved and heinous character and constitutes a danger to society, it may impose the death sentence 3) The court should consider the probability of the accused repeating the crime and the likelihood of him/her being reformed and rehabilitated

Source: http://timesofindia.indiatimes.com/city/kolkata/Calcutta-HC-commutes-death-sentence-of-child-killer/articleshow/46790749.cms [last accessed 09 April 2015]

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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Thursday, April 9, 2015

Calcutta HC commutes death sentence of child killer

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