Intoxication Not A Mitigating Factor When Accused Was Not In A Highly Inebriated Condition: SC

                                     It has been most rightly remarked by the Supreme Court most recently on December 13, 2019 in a latest, landmark and extremely laudable judgment titled Suraj Jagannath Jadhav vs State of Maharashtra in Criminal Appeal No. 1885 of 2019 that, “Mere intoxication is not a mitigating factor factor when accused was not in a highly inebriated condition”. This was held so while clearly rejecting the contention of the accused that he was under the influence of liquor and threw matchstick on his deceased wife and set her ablaze  and therefore his condition was such that he could not understand what he was doing! There can be no reason to justify an unlawful act and that too of such a horrifying nature as burning one’s own wife!

To start with, this noteworthy judgment authored by Justice MR Shah for himself and Justice Ashok Bhushan set the ball rolling in para 1 wherein it was observed that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.10.2018 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 723 of 2013, by which the High Court has dismissed the said appeal preferred by the appellant herein-original accused and has confirmed the judgment and order of conviction passed by the learned Trial Court convicting the accused for the offence punishable under Section 302 of the IPC, the original accused has preferred the present appeal.

As it turned out, para 2 then states that, “At the outset, it is required to be noted that the only submission made by the learned counsel appearing on behalf of the appellant-original accused is that the death of the deceased can be said to be a culpable homicide not amounting to murder and the case would fall under Exception 4 to Section 300 IPC and therefore the case would be under Section 304 Part II IPC. Even this Court has issued the notice in the present appeal limited to the nature of offence.”

While elaborating further on this pale defence, para 3 then states that, “Shri Sushil Karanjkar, learned counsel appearing on behalf of the appellant-original accused has vehemently submitted that, as such, there was no intention on the part of the accused to kill his wife. It is submitted that at the time when the unfortunate incident had taken place, the accused was under the influence of liquor and therefore his condition was such that he could not understand what he was doing. It is further submitted by the learned counsel appearing on behalf of the appellant-original accused that even thereafter the appellant tried to save the deceased and poured water to save her and, while doing so, even the appellant-original accused also sustained the injuries. Therefore, relying upon the decision of this Court in the case of Kalu Ram v. State of Rajasthan (2000) 10 SCC 324, it is prayed to alter the conviction from Section 302 IPC to Section 304 Part II IPC.”

For the sake of brevity, let us now have a glimpse of the key findings of the Apex Court Bench. To start with, it is observed in para 5 that, “Heard the learned counsel appearing on behalf of the respective parties at length. As observed hereinabove, in the present appeal, the sole question which is posed for consideration of this Court is, whether, in the facts and circumstances of the case, the case would fall under Exception 4 to Section 300 IPC or Section 300 fourthly and, therefore, whether Section 302 IPC shall be attracted or the case may fall under Section 304 Part II IPC?”

More significantly, it is then disclosed in para 5.1 that, “It is the case on behalf of the appellant-original accused that as at the time when the incident took place, the accused was drunk and under the influence of liquor and he had no intention to cause death of the deceased-wife and that even subsequently the accused tried to save the deceased and poured the water on her and therefore the case would fall under Exception 4 to Section 300 IPC and, therefore the conviction is to be altered from Section 302 of the IPC to Section 304 Part II IPC, having relied upon the decision of this Court in the case of Kalu Ram (supra). However, it is required to be noted that, in the present case, the appellant-accused poured the kerosene on the deceased when she was trying to run out of the house to save herself and was trying to open the latch of the door of the house, the accused threw the match stick on her person and set her ablaze. Nothing is on record that the accused was in a highly inebriated stage. Even looking to the conversation which took place between the deceased and the accused, so stated in the dying declaration given by the deceased, it can safely be said that the accused was in very much conscious condition when the incident took place. He was very much in the senses and was conscious about what he was doing. Therefore, the accused was fully conscious of the fact that if kerosene is poured and matchstick is lit and put on the body, a person might die due to burns. Therefore, the case would fall under Section 300 fourthly and Exception 4 to Section 300 IPC shall not be applicable.”

Finally and most importantly, it is then held in para 7 that, “Applying the law laid down by this Court in the cases of Bhagwan (supra) and Santosh (supra) to the facts of the case on hand and the manner in which the accused poured the kerosene on the deceased and thereafter when she was trying to run away from the room to save her, the accused came from behind and threw a match-stick and set her ablaze, we are of the opinion that the death of the deceased was a culpable homicide amounting to murder and Section 300 fourthly shall be applicable and not Exception 4 to Section 300 IPC as submitted on behalf of the accused. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court convicting the accused for the offence punishable under Section 302 of the IPC.” Lastly, it is then held in the last para 8 that, “In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed.” Very rightly so!

In conclusion, the Apex Court Bench has very rightly convicted the accused as he was fully conscious of what he was doing while he threw a  match-stick and set her wife ablaze. The intoxication was not so much that he could not understand what he was doing. So he was not given the benefit of doubt. Very rightly so!

Sanjeev Sirohi

Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.