Take these men off death row

In no fewer than 13 cases, the Supreme Court has held the death sentence to have been wrongly given. The mistakes must be corrected before it’s too late. With a dark and chilling feeling we recently read about the wrong Carlos who was executed in the United States for a crime he did not commit. An extraordinary investigation by a Columbia law professor and his team led to the revelation that due to a series of mistakes from investigation to trial, Texas executed Carlos De Luna for a crime committed by Carlos Hernandez. But it came too late for poor Carlos De Luna. What happens if a death penalty is imposed by mistake? If the “mistakes” are still alive unlike poor Carlos, what should be done, especially when the final court of appeal has pronounced the judgments in error? The Carlos case was one of mistaken identity. We have in India 13 mistakes of a different kind. What do Dayanidhi Bisoi, Saibanna, Ankush Maruti Shinde, Ambadas Laxman Shinde, Bapu Appa Shinde, Raju Mhasu Shinde, Rajya Appa Shinde, Surya @Suresh Shinde, Sattan, Upendra, Shivaji @ Dadya Shanker Alhat, Bantu and Mohan Anna Chavan have in common? They are all men waiting to be executed, 13 of them, a horribly ominous number. The judgments by which the Supreme Court had sentenced them to death were declared “per incuriam” by subsequent Benches of the Supreme Court. The words per incuriam mean by carelessness or ignoring the statute or the law. But they will go to the gallows, in the name of the people, because of admittedly erroneous judgments, unless their sentences are commuted by the President. Extraordinary admission It was in 2009 that the Supreme Court made this extraordinary admission of error, but till date nothing has been done to correct the error. This is not about the correctness, or constitutionality or morality of capital punishment. This is about persons being sent to death on the basis of flawed judgments. These 13 men are not men of moment or men who you will remember, they are men unremembered and unsung and abandoned. But that does not mean they can be wrongly executed. In fact it is that much more important that we, governed by the Rule of Law, ensure that their fundamental rights and their human rights are not violated. To understand why the judgments were declared erroneous one needs to go back to 1980, when the Constitution Bench of our Supreme Court in Bachan Singh vs State of Punjab, dealt in detail with the arguments for abolition and retention of the death penalty. It explained why there must be special and compelling reasons for sentencing a person to death: “The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.” The Court held: “While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal.” And “in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender, also.” That the circumstances pertaining to the criminal must be given due weight is reiterated throughout the judgment. Then in 1996 came Ravji @ Ramachandra vs State of Rajasthan which held that “it is the nature and gravity of the crime but not the criminal which are germane for consideration.” This was contrary to the binding dictum in Bachan Singh’s case and hence per incuriam. Judgments that are per incuriam have no precedentiary value and yet the Supreme Court followed Ravji, and imposed the death penalty in subsequent judgments. In 2009, in Santosh Kumar Bariyar vs State of Maharashtra, the Supreme Court noted the error and admitted that, “We are not oblivious that the Ravji case has been followed in at least six decisions of this Court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam … Shivaji v. State of Maharashtra, Mohan Anna Chavan v. State of Maharashtra, Bantu v. State of U.P., Surja Ram v. State of Rajasthan, Dayanidhi Bisoi v. State of Orissa and State of U.P. v. Sattan are the decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to criminal are not pertinent.” In addition, Bariyar declared that Saibanna vs State of Karnataka was also decided per incuriam. In Bariyar, the Supreme Court insisted that there be a “strict channelling of discretion” while deciding whether to impose the death penalty. It suggested a sentencing procedure and said that, “it is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14. …. Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of “special reasons”; if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and that the matter attracts constitutional prescription in full force, it is incumbent on the sentencing court to oversee comprehensive compliance to both the provisions.” Again, in 2010 in Dilip Tiwari vs State of Maharashtra, the Supreme Court referred to Bariyar’s case and held that though the crime warranted public abhorrence, “...We would, thus, follow Bachan Singh case and the principles therein rather than following the … Ravji case.” But Ravji Rao and Surja Ram were executed — on May 4, 1996 and April 7, 1997 respectively — pursuant to these flawed judgments. There can be no graver miscarriage of justice than this. The Supreme Court’s admission of error was too late for them. They were hanged, not because of mistaken identity as in Carlos’ case, but because of erroneous judgments. Article 21 of the Constitution of India forbids the deprivation of life except according to the procedure established by law. Will the execution of the 13 men, abandoned to die by mistake, be in accordance with law, when the judgments are per incuriam? The law requires that the accused be heard before deciding on the sentence. It is not meant to be an empty formality. Why hear the accused before imposing the sentence if the circumstances of the offender are not germane to the decision making process? The Bachan Singh judgment has laid down the law clearly and the position was reiterated in Bariyar’s case where there is a candid admission that the cases of these 13 men have been wrongly decided. Challenge to credibility The credibility of our criminal justice system and the constitutional promise of equality before law will suffer a terrible blow if they are executed despite erroneous judgments. This article does not raise the larger question of retention or abolition of death penalty. It only argues for the administration of the death penalty in accordance with law. The Supreme Court, even in India where the judges do not sit en banque, speaks as one Court. The voices we hear are not the voices of the different judges; what we hear is the Voice of the Court. Here the Supreme Court has acknowledged and named the judgments which were “in error”. Yet, nothing has been done in rectification. The crimes committed by the 13 men must have been so abhorrent to the Supreme Court that the rarest of rare doctrine was invoked. But the law says that before the death penalty is imposed, the Court shall consider the facts relating to the offender. If they were not considered it was a mistake, but not an ordinary mistake. The authority of the state to carry out the sentences imposed by courts cannot extend to executing admitted errors. If the mistake is corrected by Presidential pardon, the 13 men will not go free. They still have to serve their sentences for the rest of their lives. They will not be pardoned. But we shall not have sent them to the gallows, by mistake. There is no time to lose, for those 13 men and for us too. (Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.) Courtesy : http://www.thehindu.com/opinion/lead/article3606856.ece

President Pratibha Patil gives life to dead man (President Pratibha Patil had commuted the death sentences of 35 convicts to life imprisonment so far during her term as President.)

R Uday Kumar & Ravi Uppar,TNN | Jun 23, 2012, 04.25AM IST BELGAUM (KARNAKATA): A day after TOI reported that President Pratibha Patil had commuted the death sentences of 35 convicts to life in prison, it came to light on Friday that one of the beneficiaries of her mercy died almost five years ago. Bandu Tidke's sentence for the rape and murder of a 16-year-old girl came from the President's office on June 2. It has raised doubts about whether the clemency decisions - for many convicted of murder and rape - on the advice of the Union home ministry were based on correct information or taken in haste. In Tidke's case, either the state jail officials or Karnataka's home department and subsequently the Union home ministry had not informed the President's office about his death on October 18, 2007. Tidke was 31 years old and HIV-positive. Sources in the state prisons department said Tidke's file had been moved to the Centre two to three years ago. Prisons minister A Narayanaswamy, however, said, "It takes some time for the President to consider after a file is moved. I think the file in this case was moved when the convict was alive." Tidke was arrested for rape and murder in 2002. In 2005, he was given the death sentence by the Bagalkot district court. Since November 30, 2005, he was lodged in the Hindalga Jail in Belgaum. According to police files, Tidke, a sugarcane cutter from Beed district in Maharashtra, migrated in 2002 to Bagalkot in Karnataka where he posed as a swamiji and stayed at a local mutt. That year, he dragged a 16-year-old girl from a nearby school to his room, raped and murdered her. He left the body there and escaped to Shirdi where he was arrested. Tidke appealed in the high court in 2006 but the court turned down his plea. Justices S R Bannurmath and N Ananda described him "like a devil in the garb of a swami". He then sent a mercy plea to the President. Five years too late 2002: Bandu Baburao Tidke, a sugarcane cutter from Beed district of Maharashtra migrates to Bagalkot in Karnataka. Dresses up like a swamiji and lives in a mutt. Drags a 16-year-old schoolgirl to the mutt, rapes and murders her. Flees to Shirdi where he is arrested. 2005: Bagalkot court sentences Tidke to death. Sent to Hindalga Jail in Belgaum. 2006: Tidke appeals to high court against death sentence, but court turns petition. Tidke found to be HIV positive. October 18, 2007: Tidke dies in Belgaum government hospital. June 2, 2012: President Pratibha Patil commutes long-dead Tidke's death sentence to life term. [Source: Times of India; accessed on 23rd June 2012 See at http://sp.m.timesofindia.com/PDATOI/articleshow/14349473.cms]

Man sentenced to death for rape and murder

The Mavelikara Additional District and Sessions Court-II on Thursday sentenced to death Viswarajan, 22, of Oachira who was found guilty of the rape and murder of a 34-year-old widow and the mother of a teenaged girl. Pronouncing the sentence, the Judge A.Badarudheen said the court was awarding death penalty as it was the ‘rarest of rare cases.' The Court also asked the accused, Viswarajan, alias ‘Karumadi' of Santhosh Bhavan in Vayanakam in Oachira to pay a penalty of Rs.1 lakh to the victim's daughter. If the convicted person failed to pay the penalty, he would have to undergo additional Rigorous Imprisonment (RI) of six months. Special Public Prosecutor S. Remanan Pillai said Viswarajan had also been sentenced to six months Rigorous Imprisonment (RI) under Section 342 of the Indian Penal Code (IPC) (wrongful confinement) and five years RI under Section 376 read with 511 (attempt to rape). The sentences will, however, run concurrently. Habitual offender The judge observed that the accused was a habitual offender and was a threat to the community. Mr. Pillai said the accused had two charges of rape and assault against him in the Ochira police station pending trial and another case of abducting a minor girl and sexually exploiting her. The death sentence was based on ‘circumstantial evidence,' he said. A large crowd of people were present when the verdict was pronounced at 11 a.m. The accused was brought out of the court nearly three hours later, at 2 p.m., and taken in a police vehicle to Thiruvananthapuram Central Jail at Poojapura. A heavy deployment of police under Kayamkulam Deputy Superintendent of Police S. Devamanohar, who also supervised the investigation, was present at the court. The incident occurred at 7 p.m. on October 24, 2011 when the victim was returning home. The accused who was hiding in the dark grabbed the victim and beat her unconscious before sexually assaulting her. He later pushed her into a paddy field. The police and local people rushed her to a hospital. However, she died while being shifted to the Alappuzha Medical College Hospital. The investigation was led by Kayamkulam Circle Inspector A.N.Shanihan, who submitted the report to the court.

Source : http://www.thehindu.com/news/states/kerala/article3477458.ece

‘Lack of territorial jurisdiction’ cited for refusal to execute Rajoana’s death sentence.

Chandigarh, Sun May 06 2012, 00:22 hrs Lakhwinder Singh Jakhar, Superintendent, Central Jail, Patiala, who had been issued contempt notices by a local court for refusing to execute the death sentence of Balwant Singh Rajoana, has cited lack of territorial jurisdiction for refusing to execute the sentence. In his reply filed on April 25, Jakhar stated that he acted bona fide and without any contempt towards the court. He also said Rajoana could not be hanged at that stage, because the death sentence of his accomplice Jagtar Singh Hawara had been commuted to life imprisonment by the Punjab and Haryana High Court and his (Hawara) appeal was pending before the Supreme Court. A S Grewal, Additional Advocate General, Punjab, and counsel for the Jail Superintendent, said the Supreme Court judgement placed the onus on the Jail Superintendent to report such cases to higher authorities. The judgement avoided injustice where death sentences awarded to two accused for the same crime was commuted to life imprisonment for one and executed in the case of the other, he explained. Rajoana had earlier refused to file a mercy petition before the President of India, and his mercy petition was filed by the Shiromani Gurudwara Prabhandhak Committee under Article 72 of the Constitution of India. The execution was stayed till the final order of the Apex Court in the appeals of his co-accused or till the order of the President of India, whichever was later. Rajoana was awarded death sentence by a CBI special court in July 2007, in the former Punjab Chief Minister Beant Singh assassination case. On March 19, Jakhar had received a communique from the court of Shalini Nagpal that Rajoana be executed on March 31. In his communique to the judge, Jakhar expressed his inability to execute the sentence on account of “legal infirmities in procedure”. The court had issued notice to Jakhar on March 27, asking him to explain why proceedings under the Contempt of Court Act should not be initiated against him. The case will now come up for hearing on June 6. Source: Indian Express See http://www.indianexpress.com/news/lack-of-territorial-jurisdiction-cited-for-refusal-to-execute-rajoanas-death-sentence./945904/0 [accessed on 7th May 2012]

Contempt proceedings against jail official adjourned

HT Correspondent , Hindustan Times Chandigarh, May 05, 2012 A Chandigarh court on Saturday adjourned the hearing in the contempt of court proceedings against Patiala jail superintendent Lakhwinder Singh Jakhar to June 6. The court of additional district and sessions judge Shalini Nagpal adjourned the hearing for arguments on the reply filed by Jakhar, saying "the court will take up the case on June 6 as there are a lot of other cases to be heard". Jakhar, in his reply before the court on April 25, had tendered an unconditional apology for refusing to execute Beant Singh assassination convict Balwant Singh Rajoana. The court had issued a contempt of court notice to Jakhar for returning the death warrants. "The superintendent, Patiala jail, has not once, but on two occasions, refused to execute the warrants of death sentence by way of written communication on March 19 and March 24. By doing this, he had intended to interfere with the due course of judicial proceedings, obstruct the administration of justice and also lower the authority of the court," the court had observed. Source: http://www.hindustantimes.com/Punjab/Patiala/Contempt-proceedings-against-jail-official-adjourned/SP-Article1-851309.aspx [accessed on 7th May 2012]

Death sentence for beheading girl on campus

Press Trust of India | Updated: May 02, 2012 11:47 IST Ranchi: A youth was today sentenced to death by a local court for beheading a girl student in a college campus in Ranchi on April 28 last year. The District and Sessions Court of SH Kazmi pronounced the capital punishment against Vijendra Kumar for severing the head off of intermediate student Khusboo outside an examination hall. The court had on April 26 convicted Kumar for the crime. Kumar, who hails from Jamshedpur, had beheaded Khusboo with a sharp weapon as soon as she came out of the examination hall. He was overpowered by other students and handed over to the Jharkhand police. Source: http://www.ndtv.com/article/cities/youth-gets-death-sentence-for-beheading-girl-205137 [accessed on 4th May 2012]

Close call between life and death

Apr 14, 2012 - Rohit Raj DC

Considering the issue of death penalty in rarest of rare cases, a division bench of the Kerala High Court on Friday initiated a debate on giving harsher life term to the convicts while sparing the rope.

The Kerala High Court on Friday took a call on the death vs life debate for extreme crimes and a division bench that considered the question stood more in favour of life but did not seek an abolition of death penalty altogether.

While considering the references of death penalty given by various trial courts to 10 convicts, a division bench comprising Justices R. Basant and K. Vinod Chandran opined that a harsher life term (without parole, commutation or remission) should be more of a norm.

Among the death references considered by the court was that of one-handed Govindachamy, the convict in Soumya murder case.


Justice R. Basant, who retired on Friday, opined that death sentence and harsh life imprisonment can be considered by both the high court and the sessions courts. He expressed that both courts have powers to impose a harsher punishment.

According to Justice Basant, a larger bench of five judges should consider the matter and formulate guidelines on this aspect. However, Justice Vinod Chandran had a different opinion and observed that delaying a decision would only prolong the agony and trauma of the convicts.

He said that by a specific order, the apex court had not conferred any such power on trial courts.
Relying on the Supreme Court verdict on the famous Swami Sradhananda case, Justice Vinod Chandran opined: “I agree with Justice Basant on the issue of High Court having power to extend life sentences beyond 14 years. But I have a difference of opinion on sessions court having powers to decide the question.”

On formulating the guidelines, Justice Basant observed that a five-judge bench should arrive at a consensus on awarding death sentences in each case. “Unless a five-judge bench unanimously comes to the conclusion that a death sentence is the only option considering the gravity of the crime, the convict should be given a life term,” he said.

Justice Basant also opined that courts should consider Kerala’s social situation while awarding death sentences. “Kerala should set a model for other states in avoiding death sentences to convicts by extending the life term awarded to the victims,” he observed.

The matter will now go to the Acting Chief Justice Manjula Chellur who will constitute a single bench to take a final call in the issue.

Who holds the supreme power?

While the division bench unanimously agreed for giving extended life terms instead of gallows for those on death row, the two judges differed on who should have the power to decide the question.

While Justice R. Basant suggested that both the high court and the sessions court can wield the power to decide the issue, Justice K. Vinod Chandran was of the view that the power should be exercised by the high court only.

Interestingly, members of the bar too stood divided on the issue. “I cannot accept the view (expressed by Justice K. Vinod Chandran) that sessions court should not consider the question of extending the life term. Sessions courts pass verdicts after conducting the trial so they have every right to consider the issue,” said Advocate Sivan Madathil

Even if the session’s court commits a mistake it can be challenged at the high court and Supreme Court, he said.

However, director general of Prosecution Mr Asaf Ali argued that only Supreme Court can arrive at a decision on whether to extend life terms.

Nizhalkuthu: tale of unjustness

The film, Nizhalkuthu (Shadow Kill), coproduced by Adoor Gopalakrishnan, is about the inherent unjustness of certain punishments.

The film is set in the 1940s in a village of Travancore, British India. Kaliyappan, the last hangman of Travancore dynasty, spends all the time drinking and seeking atonement.

The reason for this self-destruction has been the remorse born out of the feeling that the last man he hanged was an innocent. The late Oduvil Unnikrishnan portrayed Kaliyappan.

10 Who await

Govindachamy - Soumya rape and murder
Kanakaraj - Puthoor Sheela murder case
Antony alias Anthappan - Aluva murder killing 6 persons.
Unni - Kanichikulangara case
Reji Kumar - murdering wife and four children in Pattambi
Lawrence - Idukki murder
Ramachandran - Vandoor case for killing two women
Pradeep Borah - murdering a couple from Orrisa.
Jojo alias Jomon - murder of mother and grandfather in Idukki
Shaju alias Unni - Kollam murder case
Ripper Chandran was the last person to be hanged in the state, in 1991.

source: http://www.asianage.com/india/close-call-between-life-and-death-714
[accessed on 15th April 2012]