Report No. 262

(iii) Rules of Prudence

5.2.52 The Supreme Court, in Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641 discussed certain "rules of prudence" to be followed in death penalty adjudication, to address the concern of the potential fallibility of the system. The Court held that:

In this particular punishment, there is heavy burden on court to meet the procedural justice requirements, both emerging from the black letter law as also conventions. In terms of rule of prudence and from the point of view of principle, a court may choose to give primacy to life imprisonment over death penalty in cases which are solely based on circumstantial evidence or where high court has given a life imprisonment or acquittal. Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 164.

5.2.53 Keeping in mind the distinct nature of the death penalty the Court therefore cautioned that it would be prudent to avoid imposing the death penalty in cases based on circumstantial evidence on the one hand, and those where lower courts have imposed a life imprisonment or have acquitted on the other. However, similar to the cases discussed above, there is little consistency in following these rules of prudence.

a. Circumstantial evidence

5.2.54 Concerned with the potential fallibility of convictions based only upon circumstantial evidence, and cognizant of the fact that the death penalty is irreversible, the Court has, in various cases cautioned that the death penalty should ordinarily be avoided when the conviction is based solely upon circumstantial evidence. Citing the principle that "more serious the offence, stricter the degree of proof," Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377; Sharad Bhirdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Kashmira Singh v. State of M.P., AIR 1952 SC 159, the Court has held that cases based on circumstantial evidence have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof.

[C]onvictions based on 'seemingly conclusive circumstantial evidence' should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability.

[A]ny characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the "culpability calculus", must attract negative attention while deciding maximum penalty for murder. Kalu Khan v. State of Rajasthan, Criminal Appeal 1891-1892/2014 dated 10.03.2015

5.2.55 Therefore, in cases like Sahdeo v. State of U.P, (2004) 10 SCC 682, Sheikh Ishaqe v. State of Bihar, (1995) 3 SCC 392, Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230, Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 and Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467 the Court did not impose the death penalty, inter alia, on the consideration that the conviction was based on circumstantial evidence.

5.2.56 However, despite this caution, in a contrary line of cases the Court has expressly refused to consider circumstantial evidence as a ground for not imposing the death penalty. As noticed by the Supreme Court in Shankar Khade, in cases like Shivaji v. State of Maharashtra, (2008) 15 SCC 269, Kamta Tiwari v. State of M.P., (1996) 6 SCC 250 and Molai v. State of M.P., (1999) 9 SCC 581, this Court categorically rejected the view that death sentence cannot be awarded in a case where the evidence is circumstantial and has held that "[i]n the balance sheet of [aggravating and mitigating] circumstances, the fact that the case rests on circumstantial evidence has no role to play." Shivaji v. State of Maharashtra, (2008) 15 SCC 269, at para 27.

b. Disagreement on guilt or sentence between judges

5.2.57 The rarest of rare doctrine provides a very narrow margin for the imposition of the death penalty, limited only to the most exceptional of cases. Given this extremely narrow exception, it would be expected that the judges of the various courts who have heard the case, would show a degree of unanimity regarding whether or not the case belongs to the rarest of rare category.

This view was espoused by Justice Thomas in his minority opinion in Suthendraraja alias Suthenthira Raja alias Santhan v. State, (1999) 9 SCC 323 ("In my opinion, it would be a sound proposition to make a precedent that when one of the three Judges refrains from awarding death penalty to an accused on stated reasons in preference to the sentence of life imprisonment that fact can be regarded sufficient to treat the case as not falling within the narrowed ambit of "rarest of rare cases when the alternative option is unquestionably foreclosed.")

Further, given the irreversible nature of the death penalty, if a judge has doubts about the very guilt of the accused, this by itself should be a ground for not imposing the death penalty. This view has been endorsed, though less categorically in Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, and Lichhamadevi v. State of Rajasthan, (1988) 4 SCC 456 ("Where there are two opinions as to the guilt of the accused, by the two courts, ordinarily the proper sentence would be not death but imprisonment for life").

5.2.58 The Supreme Court endorsed this view in Mohd. Farooq and held that in order to remove disparity and bring about a degree of uniformity in the application of the death penalty, the "consensus approach" Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, at para 165, should be adopted, whereby the death penalty should be imposed only if there is unanimity vertically across the various tiers of the court system, as well as horizontally across Benches.

5.2.59 However, as in the cases mentioned in the previous sections, on this point too, there exists a considerable diversity of precedent. Take for instance the cases of State of U.P. v. Satish, (2005) 3 SCC 114 on the one hand, and State of Maharashtra v. Suresh, (2000) 1 SCC 471 on the other. In the former, the accused was charged with the rape and murder of a six year old, and was convicted and sentenced to death by the Trial Court but acquitted by the High Court.

The Supreme Court restored the order of the Trial Court and imposed the death sentence on the basis of the brutal and depraved nature of the crime, without taking into account the doubt regarding the guilt of the accused by the High Court. Suresh on the other hand, also involved the rape and murder of a four year old. Here too, the Trial Court had imposed the death penalty but the High Court had acquitted.

The Supreme Court restored the order of conviction of the Trial Court, and was inclined to impose the death penalty, but held that "as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of 'rarest of rare' cases." State of Maharashtra v. Suresh, (2000) 1 SCC 471, at para 29.

5.2.60 Similarly, while in Lichhamadevi v. State of Rajasthan, (1988) 4 SCC 456, State of U.P. v. Babu Ram, (2000) 4 SCC 515, State of Maharashtra v. Damu, (2000) 6 SCC 269, State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622, State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 and Santosh Kumar Singh v. State, (2010) 9 SCC 747 the Supreme Court refused to impose the death penalty since a lower court had acquitted the accused; on the other hand, in State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224, Devender Pal Singh v. National Capital Territory, (2002) 5 SCC 234 and Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 despite judges having disagreed on the guilt of the accused, the death penalty was awarded. In Devender Pal Singh v. National Capital Territory, (2002) 5 SCC 234 and Krishna Mochi v. State of Bihar, (2002) 6 SCC 81, the dissent on the question of guilt was by the senior most judge of the Supreme Court itself.

5.2.61 Similar concerns arise in cases like B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85, Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667, Ram Deo Chauhan @ Raj Nath Chauhan v. State of Assam, (2000) 7 SCC 455 and of three appellants in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 where judges across the tiers and Benches had agreed on the guilt of the offenders, but not on whether the case belonged to the rarest of rare category. Despite this disagreement, the Supreme Court imposed the death penalty.

In Ram Deo Chauhan, where one Supreme Court judge had himself imposed life imprisonment on the ground of the extreme young age of the accused, a judge in the majority held that this may be a ground for the offender to seek commutation from the executive, but would not affect the imposition of the death penalty by the Court. Similarly, in Krishna Mochi, where the senior most judge on the Bench had acquitted on appellant and imposed life imprisonment on three, all four were given the death sentence by majority.

Contrast these cases with Mayakaur Baldev singh Sardar v. State of Maharashtra, (2007) 12 SCC 654 where, while the Court found that the case met the rarest of rare standard, it refused to impose the death penalty only because the High Court had imposed life imprisonment on the accused.

5.2.62 Additional concerns arise in those cases where the Supreme Court is the first court to impose the death sentence. In 1984, the United Nations Economic and Social Council adopted certain Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,589 which was endorsed by consensus by the UN General Assembly. According to these Safeguards "[a]nyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory."590

589 Resolution 1984/50 of 25 May 1984.

590 Resolution 1984/50 of 25 May 1984.

5.2.63 Under India's international obligations, therefore a person sentenced to death has a right to appeal the imposition of the death sentence, and the state has an obligation to provide such an appellate forum. However, where the death penalty is imposed for the first time at the level of the Supreme Court, this right is negated. Take for example, the case of Simon v. State of Karnataka, (2004) 1 SCC 74. In this case, 4 persons were convicted for capital offences. The case was tried by the TADA court, and the first and only appeal lay before the Supreme Court.

The TADA Court convicted the accused and sentenced them to life imprisonment. The convicts appealed the decision to the Supreme Court. No appeal was filed either by the State or the victims for the enhancement of sentence. However, the Supreme Court suo motu enhanced the sentence of the 4 appellants to death. The Supreme Court was therefore the first and only court to impose the death penalty. The offenders had no forum available to them for appealing the decision.

It is noted in this regard that the Commission, in its 187th Report, had recommended that, "where in case the Supreme Court thinks that the acquittal is wrong and the accused should be convicted and sentence to death; or it thinks that the sentence for a term or life sentence is to be enhanced to a death sentence, then the Supreme Court may direct the case to be placed before the Hon'ble Chief Justice of India for being heard by a Bench of at least five judges. This also requires the Supreme Court's rules to be amended."592 However, this recommendation has not been implemented.

592 Law Commission of India, 187th Report, 2013, Ministry of Law, Government of India, at page 62, available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf, visited on 25.8.2015.

5.2.64 Another concern regarding disparate treatment in similar fact situations arises in cases where co-accused, who are accused of having played the same role in the offence, are given differing treatment. For example, the same FIR that was the basis of the conviction and death sentence to the accused in Krishna Mochi, also named Vyas Ram and ascribed the same role to him. Vyas Ram v. State of Bihar, 2013 (12) SCC 349. His case was tried separately. Before the Supreme Court, the judges relied on facts from the Krishna Mochi judgment to convict the accused.

However, noting that in Krishna Mochi there had been a dissent on the question of the guilt of one accused, and the appropriateness of awarding the death sentence for the other three accused, the Court in Vyas Ram refused to impose the death penalty. Therefore though Krishna Mochi and two of his co-accused were given the death sentence despite a dissenting judgment in their favour, Vyas Ram was given a life imprisonment on the basis of that very judgment.

5.2.65 These cases echo another case highlighted by Justice Bhagwati in his dissent in Bachan Singh as an "example of freakishness in imposition of death penalty." Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 71. In Harbans Singh v. State of U.P., (1982) 2 SCC 101 involved three accuse.- Jeeta Singh, Kashmira Singh and Harbans Singh.

All three were sentenced to death by the Allahabad High Court for playing an equal part in the murder of a family of four. Each person preferred a separate appeal to the Supreme Court. The special leave petition of Jeeta Singh came up before one Bench and it was dismissed. He was executed. Kashmira Singh's special leave petition was placed before a different Bench. He was granted leave, and subsequently his sentence was commuted to one for life. Harbans Singh's special leave petition came up before yet another Bench.

Leave was rejected and a review petition was also dismissed. Harbans Singh was to be executed along with Jeeta Singh. However, he filed a writ petition before the Supreme Court and a stay on his execution was ordered. When the writ petition was heard, the Bench came to know about Kahsmira Singh's commutation. According to Justice Bhagwati in Bachan Singh,

[t]his is a classic case which illustrates the judicial vagaries in the imposition of death penalty and demonstrates vividly, in all its cruel and stark reality, how the infliction of death penalty is influenced by the composition of the Bench. The question may well be asked by the accused: Am I to live or die depending upon the way in which the Benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Articles 14 and 21? Bachan Singh v. State of Punjab, (1982) 3 SCC 24, at para 71.