Abolish Death Penalty India: Borkar

Wednesday, May 29, 2019

Supreme Court commutes death penalty to man, says his poems show he’s reformative (Maharashtra)

By Express News Service |New Delhi |Updated: March 4, 2019 3:52:05 am

The Bombay High Court had confirmed the death sentence in June 2006 against which Borkar approached the Supreme Court. His counsel told the apex court that he had realised his mistake.

THE SUPREME Court has commuted the death sentence of a man — convicted of killing a child for ransom — to life imprisonment, relying among others on poems that he wrote in jail to conclude that he “would not be a continuing threat to society”. A bench of Justices A K Sikri, S Abdul Nazeer and M R Shah, which perused the file of Dnyaneshwar Suresh Borkar, held that capital punishment was not warranted in the facts and circumstances of the case as “mitigating circumstances are in favour of the accused”. These “mitigating circumstances”, the court said, were that at the time of commission of the offence, he was 22, that he had already spent 18 years in jail, his good conduct in jail and that he had tried to join society and become a civilised man and completed his BA while in prison.

The court said that “from the poems, written by him in the jail, it appears that he has realised his mistake which was committed by him at the time when he was of young age and that he is reformative” and added that “therefore the appellant can be reformed and rehabilitated”. It concluded that although the offence was “undoubtedly… brutal”, it “does not warrant death sentence”. “It is required to be noted that the accused was not a previous convict or a professional killer,” the judgment said. The Bombay High Court had confirmed the death sentence in June 2006 against which Borkar approached the Supreme Court. His counsel told the apex court that he had realised his mistake.

Source: https://indianexpress.com/article/india/sc-commutes-mans-death-penalty-to-life-term-referring-to-his-reformative-poems-5608940/ (accessed on 29 May 2019)

How A Murder Convict's "Reformative" Poems Saved Him From Death Sentence

All India | ANI | Updated: March 02, 2019 14:56 IST

The poems show that the convict has realised his mistake and has reformed: Supreme Court

NEW DELHI: The Supreme Court converted death penalty of a murder convict into life imprisonment after taking note of the poems he wrote while serving his term in jail. The poems show that the convict has realised his mistake and has reformed, the court observed. “From the poems written by him (death row convict) in the jail, it appears that he has realised his mistake which was committed by him at the time when he was of young age and that he is reformative,” a bench of Justice AK Sikri, Justice S Abdul Nazeer and Justice MR Shah said in its recent judgement.

By changing death sentence to life imprisonment of Dnyaneshwar Suresh Borkar, who was accused of kidnapping and murdering a minor child for ransom, the bench said that it acknowledged the gravity of the offence committed by him but “unable to satisfy ourselves that this case would fall in the category of “rarest of rare case” warranting the death sentence. The top court also took into consideration that the accused at the time of the commission of the offence was of 22 years, by now, he has spent 18 years in jail and while behind bars, his conduct was good, and he is not a professional killer.

“The accused (Borkar) has tried to join the society and also tried to become a civilized man and has completed his graduation in BA from jail. He has tried to become reformative,” said the bench, adding that he can be reformed and rehabilitated. The judgement said, “The details show there is a possibility that accused would not commit similar criminal acts. The accused would not be a continuing threat to society. Considering the aforesaid facts and circumstances of the case, we are of the opinion that in the facts and circumstances of the case, the decision of capital punishment is not warranted.”

Senior Advocate Anand Grover, who appeared for the accused, had told the top court that during the span of 18 years in the jail, not only he has learned a lesson but he has realized the mistake committed by him. He has tried to become a civilized person, completed his graduation and has also undergone training of Gandhian thoughts undertaken by Gandhi Research Foundation, Advocate Grover added. He also submitted that the poems written by the accused in the jail reflect his current mind of state and by which it can be said that he has realized the mistake committed by him at the time when he was just 22 years of age.

The top court was hearing an appeal filed by Borkar against the Bombay High Court's confirmation of his death sentence awarded by the trial court.The top court also took into consideration that the accused at the time of the commission of the offence was of 22 years, by now, he has spent 18 years in jail.

Source: https://www.ndtv.com/india-news/delhi-murder-convicts-reformative-poems-saved-him-from-death-sentence-2001669 (accessed on 29 May 2019)

The Death Penalty Scenario in India

India is one of 193 countries that retains the death penalty. Some judges have delivered landmark verdicts upholding the rights of death row prisoners, while debates continue advocating abolition or reform of sentencing policies. The Indian government remains committed to retention, asserting executions occur only in “rarest of rare” cases. The death penalty applies to crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or mentally-retarded person, and in certain cases of rape. Outrage over child rape and murder has intensified these discussions. After an unofficial eight-year moratorium, the government executed Ajmal Kasab (Mumbai attacks) in 2012 and Afzal Guru (Parliament attack) in 2013, both covertly and immediately after mercy petitions were rejected. Prior to this, Dhananjoy Chatterjee was executed in 2004 after 13 years on death row. Following these, many mercy petitions have been rejected, creating fear among death row convicts. Courts continue to hand down death sentences at an increasing rate. Empirical studies highlight the plight of death row prisoners. The India Exclusion Report 2017-18 found fair trial rights largely denied, with convicts often marginalized by caste, religion, poverty, and education. The Death Penalty Research Project (2015) documented socio-economic profiles and experiences of death row prisoners. Dr. Reena Mary George’s studies (2014, 2009) emphasized poverty, social exclusion, and dignity as central to death row experiences, and examined the human rights impact of the penalty. According to the National Crime Records Bureau 2015, 101 prisoners were on death row, with many sentences commuted to life. The “rarest of rare” doctrine introduced by the Supreme Court in the 1980s has not substantially limited death sentences, which have increased over the decades. Justice Joseph (2018) reaffirmed the Bachan Singh judgment but urged restriction of the death penalty to only those cases meeting its criteria. 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