Abolish Death Penalty India: HIV rapist's death sentence commuted

Friday, February 6, 2015

HIV rapist's death sentence commuted

Asseem Shaikh, TNN | Jun 19, 2014, 01.37AM IST PUNE: The Bombay High Court has commuted to life the death sentence awarded to a 29-year-old HIV patient, from Pune. He had raped his seven-year-old niece and then strangled her at Kasegaon village in Sangli in 2011. The bench comprising justices V K Tahilramani and V L Achliya observed, "There can be no doubt that the offence committed by the accused deserves severe condemnation and it is a heinous crime, but on looking at the cumulative facts and on balancing the aggravating and mitigating circumstances of the case, we do not think that the case falls in the category of rarest of rare cases. Hence, we are not inclined to confirm the death sentence." On March 26, 2013, the district and sessions court at Islampur had convicted and sentenced him to death for raping and murdering the girl. The victim, a resident of Sangli, was studying in standard two in a local school. The prosecution's case is that on February 26, 2011, the man had taken the girl from school to Kalammawadi, near Kasegaon in Walva tehsil and raped her in a sugarcane field. He then strangled her and fled to Pune. When the girl did not come back from school, her mother told her husband. He inquired with the school teacher who had told him that she had gone with her maternal uncle. After a search, the girl's father registered a criminal case with the Kasegaon police station. The rapist was arrested after investigations revealed his involvement in the crime. The victim's body was recovered from the sugarcane field. The trial court had sentenced him to death under section 302 of the Indian Penal Code (IPC). He was sentenced to life imprisonment for rape under section 376 (2) (f) of the IPC. He was also sentenced to three years' rigorous imprisonment each for kidnapping and destroying evidence under sections 363 and 201 of the IPC. The trial court had sent a reference to the high court for confirming the death sentence. He had also filed a criminal appeal challenging the death sentence in the high court. Additional public prosecutor Mankuwar Deshmukh relied on aggravating circumstances to prove that the accused had brutally raped and murdered a defenceless girl. She pleaded to confirm death sentence as the girl was last seen in the company of the accused. She relied on the DNA report to prove that the blood stains found on the victim's frock matched his blood group. She submitted that the rapist was a habitual offender as he had two cases registered against him with the Chinchwad police station here in 2009 and 2011. The HC later found that he had been acquitted in both the cases. The HC appointed lawyer Abhaykumar Apte to represent the man from its legal aid committee. Apte argued that police had not recorded his statement to show that the dead body was recovered at his instance. He also challenged the identification parade of the accused on the grounds that the witnesses had seen him at the police station. The HC's observations Quoting several Supreme Court judgments, the HC bench said, "The man was suffering from HIV and this was the only mitigating circumstance in his favour for commuting his death sentence to life imprisonment." The HC also sought his doctor's advice on whether his life span will be that of an ordinary man if he continued with the medicines. While partly allowing his appeal, the HC on examining the evidence maintained his conviction under sections of the IPC, but commuted the death sentence given for murder to life imprisonment. The HC also commuted the life imprisonment awarded for rape to 10 years RI. However, both the sentences will run consecutively. The sentences of three years RI each awarded for kidnapping and destruction of evidence will run concurrently. The judgment was delivered on May 8 and posted on the HC website on June 18. Source: http://timesofindia.indiatimes.com/city/pune/HIV-rapists-death-sentence-commuted/articleshow/36781424.cms [last accessed 06.02.2015]

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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

Friday, February 6, 2015

HIV rapist's death sentence commuted

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