On Monday, July 30, the Lok Sabha passed Criminal Law(Amendment) Bill making rape of girl below the age of twelve years an offence punishable with death.
The Bill seeks to amend provisions of Indian Penal Code(IPC), Code of Criminal Procedure, Evidence Act and Protection of Children from Sexual Offences Act (POCSO). It replaced the Ordinance promulgated by the Central Government during April 2018 in the wake of public outcry over Kathua incident of rape and murder of a minor girl.
“I have no desire to live…all I pray for is death,” Sunanda Pushkar wrote in an e-mail to her husband Shashi Tharoor nine days before she was found dead in a luxury hotel room here, police has told a city court.
The police also told the court that Sunanda’s death was due to poisoning and 27 tablets of Alprax were found in her room but it was not clear how many pills she had consumed.
Sunanda’s mail and messages on social media have been taken as a “dying declaration”, Delhi Police told Additional Chief Metropolitan Magistrate Samar Vishal, who today reserved for June 5 its order on whether to summon Tharoor as an accused in the case.
The Delhi Police had on May 14 accused the Lok Sabha MP from Thiruvananthapuram, of abetting Pushkar’s suicide and urged the court that he should be summoned as an accused in the four-and-half year-old case, claiming there was sufficient evidence against him.
In a nearly 3,000-page charge sheet, the police has named Tharoor as the only accused while also alleging that he had subjected his wife to cruelty.
The couple’s domestic servant, Narayan Singh, has been named one of the key witnesses in the case.
Pushkar was found dead in the suite of a luxury hotel in south Delhi on the night of January 17, 2014.
The Congress leader has been charged under sections 498 A (husband or his relative subjecting a woman to cruelty) and 306 (abetment of suicide) of the Indian Penal Code.
Under section 498A, the maximum punishment is up to three years of imprisonment, while jail term up to 10 years is prescribed under section 306.
The charge sheet, which includes several annexures including medical reports, said that Pushkar died within four years of her marriage with Tharoor. The couple had entered the wedlock on August 22, 2010.
The suite of the South Delhi hotel, where Pushkar had died, was sealed by the police on the night of her death for investigation. An FIR was registered by Delhi Police on January 1, 2015 against unknown persons under IPC section 302 (murder).
According to prosecution sources, the charge sheet has mentioned that Pushkar was allegedly subjected to mental as well as physical cruelty. Tharoor has not been arrested in the case.
The special investigation team (SIT) on April 20 had told the apex court that a draft final report has been prepared after conducting “thorough professional and scientific investigations” in the case relating to the death of Congress MP’s wife.
The Delhi High Court had last year on October 26 dismissed BJP leader Subramanian Swamy’s plea seeking court-monitored SIT probe into the death of Pushkar, terming his PIL as a “textbook example of a political interest litigation”, instead of public interest litigation or a PIL.
Later, Swamy had moved the Supreme Court against the High Court order. The top court had then asked him to satisfy it on the question of maintainability of his plea.
Notices has been quashed by the Bombay High Court which were issued by a lower court against the three after observing that the deceased died due to natural reasons, to rescue of a woman and her parents, accused of causing mental harassment and death of her father-in-law,
Justice K U Chandiwal was hearing a petition filed by Deeksha Bhandari (27) and her parents Meenakshi and Rameshkumar Sethi challenging the order passed by a court in Pune in September issuing process against the trio for culpable homicide of Pradeepkumar Bhandari, father of Deeksha’s estranged husband Amit.
Amit and Deeksha had tied the knot in June 2009. However, a year later Deeksha returned to her parents’ house in Delhi and filed a dowry harassment case against Amit and his family.
Pursuant to this, in June 2010, Deeksha, accompanied by two police officials from the North Rohini police station in Delhi visited Amit’s residence in Pune to search the house.
Amit said, the police officers and Deeksha misbehaved with his family members, including his father. Amit told the High Court that the police insisted on searching and questioning his family without a search warrant.
He alleged that a day after the police officials visited his place his father suffered a heart attack and died on July 1, 2010. Amit then registered a case of culpable homicide against Deeksha, her parents and the police officials alleging that the police in connivance with Deeksha threatened his family with dire consequences if they did not agree to pay Deeksha monetary compensation.
Justice K U Chandiwal, however, said, “Even if the search was illegal there is nothing to suggest that any act of the petitioners was irregular, dangerous in nature and thus inviting culpable homicide. The deceased had suffered from hyper-tension and hyper-sensitivity after he argued with the police authorities.”
The High Court held that Pradeep kumar Bhandari died a natural death and it cannot be the result of the so-called illegality committed by the petitioners.
Prabha Sridevan
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.)
Coutesy: The Hindu
Veteran social activist Anna Hazare Monday said he is starting a “fast unto death” to press for the demand to involve civil society in formulation of the anti-graft Lokpal (ombudsman) Bill.
“I will fast unto death, as announced earlier, as the prime minister has refused to form a joint committee with civil society members in it for the formulation of the Lokpal Bill. Even if I lose my life, I will have no regret, my life is dedicated to the nation,” Hazare said at a press meet here.
The Magsaysay Award winner activist, along with others, will go to Mahatma Gandhi’s memorial at Rajghat at 9.00 a.m. Tuesday morning, after which the activists will stage a march from India Gate to the Jantar Mantar, a stone’s throw from Parliament House, where Hazare will begin his fast.
Activists also called upon the nation to join the fast.
“I appeal to the nation to join the hunger strike, and support this anti-corruption movement,” said activist Arvind Kejriwal, who with former Supreme Court judge Santosh Hegde and Supreme Court lawyer Prashant Bhushan has drafted the Jan Lokpal Bill, the civil society’s alternate to the government drafted bill.
The Jan Lokpal Bill calls for setting up Lokpal and Lokayuktas (in states) independent from government’s control. In the activists’ version, investigation in any case will have to be completed in one year, and punishment would be a jail term of minimum 5 years and maximum of life imprisonment.
The government’s version recommends a prison term of minimum 6 months and maximum 7 years as punishment for corruption.
The activists strongly rejected the Lokpal bill drafted by government.
“Government says its committee will draft the bill. Who are there in the committee… (Agriculture Minister) Sharad Pawar who has been involved in land scams in Maharashtra, or (Communications Minister) Kapil Sibal who does not see any corruption in the 2G scam,” Kejriwal said.
“The government is supposed to make legislation for the people. If they make their laws without keeping in mind what people mind, it’s as bad as the British ruling India,” said Hazare.
“Government’s Lokpal bill is useless,” said former Indian Police Service officer Kiran Bedi.
Talking about a meeting with some members of the National Advisory Council, which is an advisory body to government, Kejriwal said that even the NAC members agreed that the Jan Lokpal Bill was good.
“They agreed that the government’s version of Lokpal Bill is toothless and agreed with almost all clauses of the Jan Lokpal bill,” he said.
He, however, added that this did not raise their hopes as the government mostly rejects the reccomendations of the NAC.
Three weeks after a Dharamsala court held four senior medical students guilty and sentenced them to four years’ rigorous imprisonment in the Aman Kachru ragging-to-death case, one of the convicts Wednesday moved the Himachal Pradesh High Court against the decision.
Naveen Verma’s petition challenging the conviction that was listed for admission in the court of Justice Surinder Singh was admitted.Aman, 19, who was in the Rajendra Prasad Medical College and Hospital in Tanda in Kangra district since 2007, died March 8 last year after he was ragged by the four drunk seniors.
Additional District and Sessions Judge Purinder Vaidya held Ajay Verma, Naveen Verma, Abhinav Verma and Mukul Sharma held guilty under Sections 304 II (culpable homicide not amounting to murder), 452 (house-trespass after preparation for hurt, assault or wrongful restraint), 34 (common intention) and 342 (wrongful confinement) of the Indian Penal Code.
In his petition, Naveen contended that at the time of ragging, Aman had told the appellant that he was suffering from some ear problem and on this he had sent him back to his room. ‘This circumstance alone proves that he had no intention to give any beating to the deceased.’
In the appeal it was mentioned that the trial was highlighted by the media, both electronic and print, and the theory of the realistic jurisprudence was applied against the convicts.
During the trial in the Dharamsala court, the prosecution pleaded that Aman was brutally beaten under the garb of ragging by his seniors and they should be convicted for murder.
After the judgement was pronounced, Special Public Prosecutor Jiwan Lal Sharma said: ‘I will recommend to the government to move the high court against both decisions of the court – one of convicting the students under culpable homicide and not under charges of murder, and second showing leniency while pronouncing the quantum of punishment.’
A court here Thursday held four medical students guilty of ragging to death their junior Aman Kachru in March last year.
Ajay Verma, Naveen Verma, Abhinav Verma and Mukul Sharma from the Rajendra Prasad Medical College and Hospital in Tanda in Kangra district were found guilty of culpable homicide not amounting to murder by Additional District and Sessions Judge Purinder Vaidya.
After the judgment, Aman’s father Rajendra Kachru said: “It’s a historic one but for me the matter will end only when ragging stops across the country. It hardly matters to me whether they are convicted under culpable homicide or murder charges.”
Aman, 19, who did his schooling from DPS International in New Delhi and was in the college since 2007, died March 8 last year after he was ragged by the four drunk seniors.
The quantum of punishment against those who ragged him, leading to his death, will be pronounced later in the day.
The prosecution is demanding higher punishment under Section 302 of the Indian Penal Code on charges of murder.
The prosecution pleaded that Aman was brutally beaten up under the garb of ragging by his seniors and they should be convicted for murder.
“The government may move the high court against the decision of the trial court of convicting the students under culpable homicide and not under charges of murder,” Special Public Prosecutor Jiwan Lal Sharma told.
A day earlier, Rajendra Kachru, who is based in Gurgaon, had sent an email to the media stating: “Prevention, not punishment, should be the purpose of criminal justice. Punishment should be looked upon as part of prevention rather than as an ’emotional compensation’ or ‘an eye for an eye’.”
He said Aman had written in his last note that “ragging must be stopped”. The campaign for justice for Aman will be over when his wish will be fulfilled, he added.
The fast-track court had framed charges against the accused Aug 13, 2009, and reserved its verdict after hearing the arguments of the prosecution and defence Oct 30 this year. During the trial the court recorded the statements of 38 witnesses, comprising doctors, police personnel and Rajendra Kachru.
Appearing in the court for the first time in the case Aug 28 this year, Rajendra Kachru had said said his son spoke to him in detail about the incident of ragging that took place March 6, 2009.
“Aman even told me that he had given in writing a complaint to college authorities regarding the (ragging) incident. Three to four hours after I got the phone call from Aman, somebody informed me on telephone from the college that he had passed away,” Kachru said.
The court also re-examined two doctors – Harjeet Pal Singh of the ENT (ear, nose and throat) department, and D.P. Swami, associate professor of forensic medicine department of the hospital. While Singh had examined Aman’s ears a few hours after the ragging incident, Swami conducted the post-mortem examination.
The autopsy report confirmed the cause of death as neurogenic shock due to ante-mortem head injury — sub-arachnoid haemorrhage.
A Supreme Court appointed committee had also visited the college and found rampant alcoholism on the campus and lack of anti-ragging norms as the reason behind Aman’s death.
The committee had recommended action against then college principal Suresh Sankhyan, who resigned from the post after the incident and was compulsorily retired by the government last month, just a day before he was to officially retire Oct 31.
“Aman collapsed and died due to injuries which the post-mortem report has linked to the incident of ragging,” said a magisterial inquiry by the state government, holding Sankhyan responsible for the lapses.
The fast-track court Aug 2, 2010, resumed the trial against the accused students after they surrendered on cancellation of their bail by the Himachal Pradesh High Court.
After Aman’s death, the state government passed an anti-ragging legislation, making ragging a cognisable, non-bailable offence.
A court in Uttar Pradesh’s Bareilly district Wednesday sentenced a man to death for the rape and murder of a minor girl, police said.
Additional Sessions Judge Rajendra Singh handed down the death sentence to Guddu alias Jitendra Kumar, a native of Gajnera village in Bareilly, some 250 km from here.
Kumar had raped the girl in 2007 in fields in Bhuta town of Bareilly and later killed her by slitting her throat.
The girl’s father Pappu Saxena alias Krishna Kant had lodged an FIR against Kumar Jan 30, 2007, after which Kumar was arrested, a police official said.
‘The judge heard around 10 witnesses before pronouncing the death penalty,’ police inspector Pankaj Awasthi told reporters in Bareilly.
Unprecedented security arrangements have been made at the Bombay High Court where the hearing on the confirmation of the death sentence to Pakistani terrorist Mohammed Ajmal Amir Kasab begins on Monday. Kasab will not be present in person but participate in the proceedings through related stories
The day-to-day hearing will be taken up before a division bench of Justice Ranjana Desai and Justice R V More.
Special Judge M L Tahaliyani, who is now the principal sessions judge, awarded the capital punishment to the 22-year-old Pakistani gunman for his role in the Nov 26-29, 2008 Mumbai attack that claimed the lives of 166 people, including 26 foreigners.
Unprecedented security measures have been ordered in the court premises with strict regulations on the entry of lawyers, litigants, mediapersons, court employees and others in Court No 49.
Government counsel Ujjwal Nikam, who fought the case in the trial court, will open his arguments seeking confirmation of the death sentence.
Later, defence lawyers Farhana Shah and Amin Solkar will make their submissions on the confirmation of the sentence and their appeal against it.
Two other co-accused in the case, Faheem Ansari and Sabahuddin Ahmed, who were acquitted by the Special Court owing to “doubtful evidence” against them, were re-arrested following an appeal filed by the state government.
Both are currently lodged in different jails in Mumbai.
Nine out of 10 gunmen, barring Kasab, who staged the attack were killed by security forces
The Punjab and Haryana High Court Tuesday commuted to a life term the death sentence awarded to notorious Babbar Khalsa International (BKI) terrorist Jagtar Singh Hawara.
Hawara was a mastermind of the assassination of then Punjab chief minister Beant Singh at the high-security state secretariat complex here Aug 31, 1995.
The high court, however, upheld the death sentence to terrorist Balwant Singh, who had not opposed the gallows awarded to him after a 11-year-old trial in a special trial court here July 2007.
The high court also upheld the life sentence of three others who were convicted for the conspiracy behind Beant Singh’s assassination. They are Shamsher Singh, Gurmeet Singh and Lakhwinder Singh.
A special Central Bureau of Investigation (CBI) court here had July 2007 sentenced the two BKI terrorists – Jagtar Singh Hawara and Balwant Singh – to death in the assassination case.
While Hawara was the mastermind of the assassination, Balwant Singh was the second human bomb to be used in case the first failed to kill Beant Singh. Balwant Singh, during the entire trial, had admitted that he was alone responsible for the killing of Beant Singh.
A sixth person convicted in the same case under the Explosives Act, Naseeb Singh, was awarded 10 years imprisonment by the court. However, he had already completed 12 years behind bars by then.
All six were last week convicted by the special CBI court in the conspiracy of assassinating Beant Singh.
The former chief minister (1992-95), who was largely credited with wiping out terrorism from Punjab by dealing with scourge with an iron hand along with supercop K.P.S. Gill.