Jigisha murder case: Delhi High Court seeks death row convicts response

By PTI |New Delhi |Published: October 25, 2016 8:01:33 pm

It is mandatory for a trial court to refer a death penalty case to a high court for confirmation of the sentence within 30 days of the pronouncement of the verdict.

The Delhi High Court on Tuesday sought the reply of two death row convicts in the 2009 Jigisha Ghosh murder case, whose case file has been sent by the trial court here for confirmation of capital punishment. A bench of justices Gita Mittal and P S Teji also sought personal presence of convicts Ravi Kapoor and Amit Shukla, who were handed down death penalty by the trial court. The bench, which has fixed the matter for further hearing on November 24, also issued production warrants to the two. The sessions judge had sent the case record relating to the conviction and death sentence of Kapoor and Shukla to the high court.

It is mandatory for a trial court to refer a death penalty case to a high court for confirmation of the sentence within 30 days of the pronouncement of the verdict. The trial court had on July 14 held the duo guilty for murder of 28-year-old IT executive Jigisha Ghosh and other counts. While sentencing the two to death on August 22, the trial court had said the girl was killed in a “cold-blooded, inhuman and cruel manner” and “brutally mauled to death”. It had said the magnitude and brutality exhibited by the convicts made the case ‘rarest of rare’, warranting capital punishment for Kapoor and Shukla. The third offender Baljeet Malik was given reprieve from the gallows for his good conduct in jail. The three have challenged their conviction and order on sentence awarded by the trial court, on which the police were asked by the high court to file their response. Kapoor and Shukla in their appeal have said the trial court has “wrongly held that the case falls in the category of rarest of rare”.

Malik, challenging his conviction and sentence of life term through his counsel Amit Kumar, has said the trial court judge has “failed to appreciate that there were contradictions and discrepancies in the depositions of prosecution witnesses (PWs) and, therefore conviction and the sentence awarded to him is liable to be set aside”. Shukla said the trial court has committed grave error by awarding death penalty to him, simply on the basis of biased jail/probation report about his client. The trial court had imposed varying fines on the convicts. While Kapoor was slapped a fine of Rs 1.2 lakh due to his inability to pay, Shukla and Malik were directed to pay Rs 2.8 lakh and Rs 5.8 lakh respectively as the pre-sentencing report had suggested they were financially strong. The trio are also facing trial for the murder of TV journalist Soumya Viswanathan, killed a year before Jigisha.

It had also directed that out of the total fine of Rs 9.8 lakh, Rs six lakh be paid to the parents of the victim, and an adequate compensation amount be decided by the District Legal Service Authority (South). The three have challenged their conviction and order on sentence awarded by the trial court, on which the police were asked by the high court to file their response. Kapoor and Shukla in their appeal have said the trial court has “wrongly held that the case falls in the category of rarest of rare”. Malik, challenging his conviction and sentence of life term through his counsel Amit Kumar, has said the trial court judge has “failed to appreciate that there were contradictions and discrepancies in the depositions of prosecution witnesses (PWs) and, therefore conviction and the sentence awarded to him is liable to be set aside”. Shukla said the trial court has committed grave error by awarding death penalty to him, simply on the basis of biased jail/probation report about his client.

The trial court had imposed varying fines on the convicts. While Kapoor was slapped a fine of Rs 1.2 lakh due to his inability to pay, Shukla and Malik were directed to pay Rs 2.8 lakh and Rs 5.8 lakh respectively as the pre-sentencing report had suggested they were financially strong. The trio are also facing trial for the murder of TV journalist Soumya Viswanathan, killed a year before Jigisha. It had also directed that out of the total fine of Rs 9.8 lakh, Rs six lakh be paid to the parents of the victim, and an adequate compensation amount be decided by the District Legal Service Authority (South). The trial court had held the three guilty under several sections of IPC, including 302 (murder), 364 (abducting for murder), 201 (destruction of evidence), 394 (voluntarily causing hurt in committing robbery), 468 (forgery for purpose of cheating) and 471 (using as genuine a forged document). It, however, held that the charge of criminal conspiracy (120-B of IPC) could not be proved against them.

The police had filed the charge sheet in the case in June 2009, stating that Jigisha’s post-mortem report revealed that she was killed by smothering. The trial in the case began in April 2010. Recovery of the weapon allegedly used in Jigisha’s murder had led to cracking of the murder case of Soumya Vishwanathan, who was a journalist with a news channel. Soumya was shot dead on September 30, 2008 while she was returning home in her car from office in the wee hours. The police had claimed robbery as the motive behind the killings of both Jigisha and Soumya.

Source: https://indianexpress.com/article/india/india-news-india/jigisha-murder-case-delhi-high-court-seeks-death-row-convicts-response-3102521/ (Accessed 20 December 2018) 

Explained: In the Supreme Court, some questions of Life and Death

SC will hear Monday petitions challenging death warrants issued against Amroha couple Shabnam and Salim, who killed 7 of her family in 2008. 

Written by Utkarsh Anand | Published on:May 27, 2015 12:53 am

UTKARSH ANAND examines the laws, rules and issues around the death penalty, and the circumstances warranting execution in India.

Which crimes entail capital punishment in India?

Grave offences such as murder, rape with injuries that may result in the death of a victim and a repeat offender, waging war against the State, and terrorism-related offences causing death are some major crimes punishable with death under the Indian Penal Code. Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital punishment is prescribed as one of the punishments for serious offences. The now-repealed Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.

What has the Supreme Court ruled on the constitutional validity of the death sentence?

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.

While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan Singh vs State of UP (1973), then in Rajendra Prasad vs State of UP (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

What would constitute a “rarest of rare” case?

The principles as to what would constitute the “rarest of rare” has been laid down by the top court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Bachan Singh formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely left upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

What has been the Supreme Court’s view on mandatory death penalty?

The Supreme Court has always said that the death sentence should be given rarely. In Mithu vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case. The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murderes. It said all murders would come under the ambit of Section 302, where a court would have the discretion to award life term or death sentence.

Similarly, the Supreme Court ruled in State of Punjab vs Dalbir Singh in 2012 that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional. The government moved a Bill to amend the Act, which is currently pending. There are some other subsequent legislation prescribing the mandatory death penalty in drug cases, but the Supreme Court has not yet struck down the penalty as unconstitutional. A pertinent provision in the Narcotic Drugs and Psychotropic Substances Act, 1985, is currently under scrutiny of the apex court.

What are the avenues available to a death-row convict?

After a trial court awards the death penalty, the sentence requires to be confirmed by a High Court. The sentence shall not be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired. If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition and a curative petition, if the review petition is nixed, for reconsideration of the judgment.

A Constitution Bench ruled last year that a review petition by a death-row convict will be heard by a three-judge bench in open court. Such cases were earlier being heard by two-judge benches in the judges’ chamber. A curative petition is still heard in judges’ chambers. Opening another avenue, the Supreme Court, by yet another path-breaking verdict in 2014, ruled that unexplained delay in execution was a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.

Does the executive have a role in clemency?

Yes. If the Supreme Court turns down the appeal against capital punishment, a condemned prison can submit a mercy petition to the President of India and the Governor of the State. Under Articles 72 and 161 of the Constitution, the President and Governors have the power “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”. This power was without any conditions until the last year’s verdict by the Supreme Court, which held that judicial clemency could be granted on the ground of inordinate delay even after a mercy petition is rejected.

How is the execution of death sentence carried out in India?

Execution is carried out by two modes, namely hanging by the neck till death, and being executed by firing squad. The Code of Criminal Procedure calls for the method of execution to be hanging. It states: “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.” In Deena vs Union of India (1993), the Supreme Court adjudicated upon whether the execution of death penalty by hanging by rope is constitutional. It held the method prescribed under the CrPC was valid. Death by shooting is contemplated under the Army Act, Navy Act and Air Force Act. They provide for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death.

Can an order of execution be challenged in a court of law?

Yes. The procedure for carrying out the execution must also fulfill certain conditions as stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014), and by the Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). The guidelines hold that a death-row prisoner must get free legal aid for drafting a mercy petition and, if it is rejected, an intimation to the prisoner and his family is imperative. A minimum 14 days’ notice for execution must be given to let him “prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs”, besides also allowing him “to have a last and final meeting with his family members.” An execution can be stopped owing to a convict’s physical or mental ill health, the top court has held. The death warrants are issued by the trial court.

In the cases of Shabnam and Salim, the validity of the death warrants have been challenged, contending that the warrants did not specify any date of execution. Further, the convicts still had the legal remedies of filing review and curative petitions, apart from moving clemency petitions.

When was the last execution carried out in India?

The last execution to take place in India was in February 2013, the hanging of Afzal Guru who was convicted of plotting the 2001 attack on India’s Parliament. 26/11 terrorist Ajmal Kasab was hanged in November 2012. Prior to these, the last execution was in 2004, when Dhananjoy Chatterjee was executed for the murder and rape of a 14-year old girl. This was the country’s first execution since 1995, when Auto Shankar, who was convicted of six murders in Tamil Nadu, was executed. Therefore, while the courts sentenced more than 1,400 persons to death between 2001 to 2011, only four have been hanged since 1995. Many of these cases are under the consideration of the Supreme Court and the President for clemency. According to data compiled by the NGO Amnesty International, Indian courts handed down at least 64 death sentences in 2014, but no executions took place. A report by the Death Penalty Research Project of the National Law University in Delhi indicated that at least 270 people were on death row after exhausting all remedies available to them under the law.

Source: http://indianexpress.com/article/explained/explained-in-the-supreme-court-some-questions-of-life-and-death/ [last accessed 28.05.2015]

HC commutes death sentence of rapist, awards 25 years jail

Thursday, 18 September 2014 - 9:00pm IST | Place: New Delhi | Agency: PTI

The Delhi High Court on Thursday commuted the death sentence awarded to a 24-year-old youth for raping and murdering his minor neighbour but directed that he be kept behind the bars for 25 years in order to "guard the society from him".

A bench of justices Pradeep Nandrajog and Mukta Gupta commuted to life imprisonment the capital punishment given to convict Bharat Kumar in 2013, saying though he is a sexually dangerous person, he is "not a dangerous sexual predator" and the solution to the present case is not to remove him from the world. "The sexual offenders can be classified as criminal sexual psychopaths who are least dangerous, sexually dangerous persons and dangerous and violent sexual predators and offenders who lack empathy and remorse.

"The first category does not inflict any physical pain on the victim, the second category while perpetrating the crime cause grotesque suffering in the victim and the last category causes not only grotesque suffering in the victim but even defiles the victim after the crime." Bharat Kumar falls in the second category who not only perpetrated crime but caused grotesque suffering on the victim by raping a minor girl of tender age of 6 years and thereafter committing her murder by smashing her head with a stone. "Thus, Bharat Kumar is a sexually dangerous person and not a dangerous sexual predator and offender.

Hence, the solution to the present case is not by removing Bharat Kumar from the earth but guarding the society against him so that he does not act dangerously to other innocent lives," the court said. The court also said "no remission would be granted to him before completion of 25 years of actual imprisonment" and also imposed a fine of Rs one lakh on him. The fine, if recovered, will be paid to the parents of the victim as compensation, it said.

Source: http://www.dnaindia.com/india/report-hc-commutes-death-sentence-of-rapist-awards-25-years-jail-2019699 [last accessed 06.02.2015]

SC judgement on delay in execution of death sentences

NEW DELHI, September 2, 2014 In a few hours on Tuesday, a Five-Judge Constitution Bench of the Supreme Court will deliver judgment on whether inordinate delay in execution of death sentences amounts to, in effect, subjecting a death row convict to a double punishment of life imprisonment and death penalty. Justices J. Chelameswar and Rohinton Nariman, who authors the verdict for the Bench led by Chief Justice of India R.M. Lodha, would also primarily address the question as to whether review of death penalty awarded in rarest of rare cases should continue to be done in the privacy of the judges’ chambers or transparently in open court, while affording the death row convict the last opportunity to fight for his life. The judgment would be based on a batch of identical writ petitions filed by eight death row convicts, including three in the 2000 Dharmapuri bus burning case, Pakistani national Mohammed Arif alias Ashfaq in the Red Fort Attack case of 2000, 1993 Bombay serial blasts ‘mastermind’ Yakub Memon and B.A. Umesh and Sunder, both convicted in multiple murders. The Dharmapuri case relates to the death of three students – Kokilavani, Gayathri and Hemalatha – of the Tamil Nadu Agricultural University, Coimbatore, when the bus they were travelling in along with 44 other students and two teachers were torched by the three convicts — Nedunchezhian, Ravindran and Muniappan - on February 2, 2000, after the conviction of AIADMK leader Jayalalithaa in a criminal case. Memon and Arif had argued in their separate petitions that years of anticipating their executions while confined in their respective jail cells has led them to suffer both mental torture. They contended that an execution now after a long term in prison would amount to serving them with both life sentence and death penalty. The convicts' petitions have separately demanded that review petitions filed against death sentence should be heard in open court by a Bench comprising from three to five judges as the issue involves taking a person’s life. They challenged the constitutional validity of the practice of judges being able to hear and dismiss review petitions by “circulation” — in judges’ chambers — rather than in open court with the convict allowed to make oral arguments. “The convict must be left with no doubt in his mind that every possible opportunity was given to him under the Constitution of India before his life was taken away following the procedure established by law,” Memon had argued in his petition. However, the judgment follows the implementation of the newly amended Supreme Court Rules 2013 from August 19. The amended rules provide that “every cause, appeal or other proceedings” in a death penalty case would be heard by a Bench of not less than three judges. Death penalty matters were usually heard by Two-Judge Benches. The 2013 Rules extend to pending death penalty-related cases also. It says any pending death sentence matters in which a Bench of less than three judges are of the opinion that the accused deserves death, the matter concerned will be referred to the Chief Justice of India, who will in turn constitute a Three-Judge Bench to hear it. Source: http://www.thehindu.com/news/national/sc-judgement-on-delay-in-execution-of-death-sentences-today/article6372320.ece [last accessed 06.02.2015]

Death row convict may be heard in open court: SC

NEW DELHI, September 2, 2014 The Hindu In petitions that have been rejected, but sentence has not been carried out, convict may come back seeking open court. A Five-Judge Constitution Bench of the Supreme Court, in a majority judgment, decide that review of death sentence cases will be heard in open court by a Bench of three judges. In a 4:1 majority judgment, the Bench led by Chief Justice of India R.M. Lodha directed that death row convicts whose death penalty have been reviewed by a Bench of less than three judges can move the Supreme Court in one month to re-open their review petitions. However, those whose curative petitions are already decided cannot seek re-hearing. Justice J. Chelameswar gave the minority judgment while Justice Rohinton Nariman authored the majority one. The Bench was hearing a batch of writ petitions seeking the court to address the question as to whether review of death penalty awarded in rarest of rare cases should continue to be done in the privacy of the judges’ chambers or transparently in open court, while affording the death row convict the last opportunity to fight for his life. The judgments were based on a batch of identical writ petitions filed by eight death row convicts, including three in the 2000 Dharmapuri bus burning case, Pakistani national Mohammed Arif alias Ashfaq in the Red Fort Attack case of 2000, 1993 Bombay serial blasts ‘mastermind’ Yakub Memon and B.A. Umesh and Sunder, both convicted in multiple murders. The Dharmapuri case relates to the death of three students – Kokilavani, Gayathri and Hemalatha – of the Tamil Nadu Agricultural University, Coimbatore, when the bus they were travelling in along with 44 other students and two teachers were torched by the three convicts — Nedunchezhian, Ravindran and Muniappan - on February 2, 2000, after the conviction of AIADMK leader Jayalalithaa in a criminal case. The convicts' petitions separately demanded that review petitions filed against death sentence should be heard in open court by a Bench comprising from three to five judges as the issue involves taking a person’s life. They challenged the constitutional validity of the practice of judges being able to hear and dismiss review petitions by “circulation” — in judges’ chambers — rather than in open court with the convict allowed to make oral arguments. “The convict must be left with no doubt in his mind that every possible opportunity was given to him under the Constitution of India before his life was taken away following the procedure established by law,” Memon had argued in his petition. However, the judgment follows the implementation of the newly amended Supreme Court Rules 2013 from August 19. The amended rules provide that “every cause, appeal or other proceedings” in a death penalty case would be heard by a Bench of not less than three judges. Death penalty matters were usually heard by Two-Judge Benches. The 2013 Rules extend to pending death penalty-related cases also. It says any pending death sentence matters in which a Bench of less than three judges are of the opinion that the accused deserves death, the matter concerned will be referred to the Chief Justice of India, who will in turn constitute a Three-Judge Bench to hear it. Source: http://www.thehindu.com/news/national/death-row-convict-may-be-heard-in-open-court-sc/article6372441.ece [last accessed 06.02.2015]

Perarivalan plea on researcher’s visit to prison declined

CHENNAI, August 1, 2013

S. VIJAY KUMAR

The death-row convict claims that information is crucial to defend his case

The plea of A.G. Perarivalan alias Arivu, death row convict in the Rajiv Gandhi assassination case, seeking details of a research scholar’s visit to Vellore Central Prison in 2011 has been declined by the State government. Though the convict claimed that the information was crucial to defend his case, the Prison Department turned down his plea filed under the Right to Information Act stating that the details sought were not available in jail records.

In repeated petitions sent to the prison authorities in the last two years, Perarivalan referred to the visit of Reena Mary George to the prison on April 13, 2011, in connection with her work on death row convicts.

Seeking copies of the permission letters given to the researcher, he wanted to know on record whether Ms. George met the three condemned prisoners–Murugan alias Sriharan, Suthenthiraraja alias Santhan and him (the petitioner).

Confirming that Ms. George had visited the prison and spent about four hours, the Public Information Officer replied that there was no record of her interview details in the prison.

In his appeal, copies of which were made available to The Hindu, Perarivalan argued that it was a well known procedure that a written permission was given to those intending to visit prison for research activities and accused the PIO of giving false and misleading information.

After the second appeal was also turned down by the Additional Director-General of Prisons, who said prisoners could not be given access to prison records as per Rule 473 of the Tamil Nadu Prison Rules, 1983, Perarivalan sent an appeal to the State Information Commission praying that his petitions be heard expeditiously and he be granted personal appearance to present his case.

However, the State government wrote to Perarivalan in the last week of June this year stating that it was not feasible to comply with his request. “He also sought details of mercy petitions processed by the Cabinet and referred to the Governor. The information cannot be shared with the petitioner under the provisions of the RTI Act,” an official in the Home Department said.

Source: http://www.thehindu.com/news/national/tamil-nadu/perarivalan-plea-on-researchers-visit-to-prison-declined/article4974703.ece?homepage=true [accessed on 1st August 2013]