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Report No. 262

(i) Guilt Determination

5.4.1 Justice Bhagwati's reminder about the finality of capital punishment, and Justice Blackmun's conviction regarding its fallibility should add caution to any debate on the death penalty. The desirability of retaining such an irreversible punishment has to be appreciated in this context of a criminal justice system that is both fallible and open to manipulation. A recent egregious example highlights this concern.

In the Akshardham Temple Blasts of 2002, 33 people were killed and about 85 injured. Adambhai Sulemanbhai Ajmeri and 5 others were arrested for this attack. They were tried for various offences, including under the Prevention of Terrorism Act. Three of the accused were given the death sentence by the trial court. The High Court upheld their conviction and sentence.

On appeal before the Supreme Court, the Court not only found all the accused innocent and acquitted them, but also expressed "anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing." Adambhai Sulemanbhai Ajmeri & Ors v. State of Gujarat, (2014) 7 SCC 716, at para 225

5.4.2 This was therefore not a case of a mistake in investigation, but of a complete fabrication by the police. Despite this, two tiers of courts were convinced beyond reasonable doubt that all the accused were guilty. Unfortunately, this is not a one-off case. In multiple cases, the Supreme Court has found that accused persons were not only convicted, but also sentenced to death on the basis of false and fabricated evidence generated through manipulated investigations, or through the negligence and callousness by various actors in the criminal justice system, including the police, prosecution and lower courts.

A report by the Jamia Teachers' Solidarity Union lists 16 cases of serious allegations, all of them involving terror charges, which were found to be completely false and fabricated by the courts. All of these 16 cases were investigated by one police cell. Again, however, the problem is more widespread. As the Supreme Court itself recognized, "[t]t is well known fact that in our country very often the prosecution implicates not only real assailants but also implicates innocent persons so as to spread the net wide." Major Singh v. State of Punjab, (2006) 10 SCC 499, at para 15

5.4.3 In multiple cases, the Court has noted that the conviction of the accused (and consequent death sentence) by lower courts was based on concocted evidence. An example is Ashish Batham v. State of Madhya Pradesh, (2002) 7 SCC 317 where the Supreme Court observed that, "we could not resist but place on record that the appellant seems to have been roped in merely on suspicion and the story of the prosecution built on the materials placed seems to be neither the truth nor wholly the truth and the findings of the courts below, though seem to be concurrent, do not deserve the merit of acceptance or approval in our hands having regard to the glaring infirmities and illegalities vitiating them and patent errors on the face of the record, resulting in serious and grave miscarriage of justice to the appellant." Ashish Batham v. State of Madhya Pradesh, (2002) 7 SCC 317, at para 15.

5.4.4 Similarly, in Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685 where the trial court sentenced 8 persons to death and the high court confirmed the death sentence against 5 of them, the Supreme Court acquitted all the accused, on the ground that the main evidence against the.- that of an approve.- was not reliable.

The Court not only found the evidence unconvincing, it also concluded that the witness was pressured by the police to turn approver because "the investigation had drawn a blank and admittedly the District Police of Chandrapur was under constant attack from the media and the public." Rampal Pithwa Rahidas v. State of Maharashtra, (1994) 2 SCC 685, at para 27.

5.4.5 So also, in Subash Chander v. Krishan Lal and Ors, (2001) 4 SCC 458 where the trial court convicted the four accused and sentenced three of them to death, and the High Court upheld the conviction, but commuted the sentence of all to life, the Supreme Court acquitted all the accused, observing that, "[w]e have noticed with pain that the aforesaid four accused persons were implicated not only to mislead the court but also to provide protection to the real persons, being sure that ultimately no court could convict and sentence any of the aforesaid accused persons."

Subash Chander v. Krishan Lal and Ors, (2001) 4 SCC 458, at para 12. Despite the Court's opinion that "no court could convict and sentence any of the aforesaid accused persons," Subash Chander etc. v. Krishan Lal and Ors, (2001) 4 SCC 458, at para 12, 3 of them spent nearly six years on death row.

5.4.6 Again, in Parmananda Pegu v. State of Assam, (2004) 7 SCC 779 the Supreme Court noted that the confessions were involuntary and that the medical evidence and cause of death did not match the confessions made. The accused had retracted their confessions and informed the trial court of the torture that they suffered when they made their statements in the court under Section 313 CrPC. The Supreme Court acquitted the accused, and found that the facts suggested that the police had extracted an involuntary confession. Notably, both the lower courts had imposed the death sentence on the accused.

5.4.7 Other factors like the denial of effective legal representation may send innocent persons to the death row. An example is Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308 where the accused was convicted and sentenced to death for a blast in a bus in Delhi which killed 4 persons. His conviction and sentence was upheld by the High Court. State v. Mohd. Hussain @ Julfikar Ali, 140 (2007) DLT 428.

Before the Supreme Court, a division Bench noted that the accused had been denied fair trial because of the denial of legal representation. Mohd. Hussain @ Julfikar Ali v. State, 2012 (1) SCALE 145. Castigating the trial court for its "casual manner" in conducting a capital punishment case, the division Bench split over whether to acquit the accused or to send the case for retrial. Mohd. Hussain @ Julfikar Ali v. State, 2012 (8) SCALE 308.

The matter was referred to a three judge Bench which sent the case for retrial. In January 2013, Mohd. Hussain was found innocent and acquitted of all charges. He was in prison for 15, out of which he was on death row for 7 years and 2 months. State v. Mohd. Hussain @ Julfikar Ali, Sessions Case No. 79/2012, dated 04.01.2013 (Del).

5.4.8 Another example is the case of Ramdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das, Review Petition (C) 1378/2009. Ram Deo Chauhan was arrested for an offence that took place in 1992. He was convicted and sentenced to death by the trial court, and the high court. His plea of juvenility was rejected. A two judge Bench of the Supreme Court upheld his death sentence in 2000. Ramdeo Chauhan @ Rajnath Chauhan v. State of Assam, (2007) 7 SCC 455.

On review, one judge recorded the fact that though Ram Deo was not juvenile at the time of commission of the offence, he was close to 16 years, and his young age was a mitigating factor. For this reason, he refused to impose the death penalty. However, per majority, Ram Deo Chauhan's death sentence was upheld. Ramdeo Chauhan @ Rajnath Chauhan v. State, Review Petition (crl.) 1105/2000., 10.05.2001 (SC). In 2002, the Governor of Assam, on the intervention of the National Human Rights Commission, commuted his death sentence.

However, in 2009 in a writ filed by the family of the deceased person, the Supreme Court set aside the commutation order, and restored the death sentence. Bani Kanta Das and Anr. v. State of Assam, Writ Petition (Civil) 457/2005., 8.05.2009 (SC). In a review of this decision, the Supreme Court asked Ram Deo Chauhan to approach the appropriate forum for determination of his age at the time of committing the offence. Ramdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das, Review Petition (Civil) 1378/2009., 19.11.2010 (SC).

In 2010, the Gauhati High Court finally determined the Ram Deo was in fact a juvenile at the time of commission of the offence. By this time he had spent about 18 years in prison, of which about 6 years were on death row. In that time, three different Benches of the Supreme Court had imposed the death penalty on him.

5.4.9 Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667 is a similar example. In 2006, Ankush Shinde and 5 others were given the death penalty by the trial court for rape and murder of a minor. The High Court upheld the death sentences of three and commuted the others to life. On appeal, the Supreme Court imposed the death sentence on all six (relying on the per incuriam decision in Ravji for its determination that the case fell into the rarest of rare category).

In 2012, about 3 years after the Supreme Court decision, a trial court determined that Ankush Shinde was a juvenile at the time of commission of the offence. Ankush Maruti Shinde v. State of Maharashtra, Criminal Application 05/2012., 6.07.2012 (Sessions Court, Nashik). By this time, he had spent 6 years on death row, out of a total of 9 years in prison.

5.4.10 The study Hanging in the Balance referenced above indicates that the cases mentioned above are not isolated instances. In the period 2000-2013, 18 persons who were awarded the death penalty by both the lower courts were finally acquitted by the Supreme Court. An additional 67 persons had been given the death penalty by at least one court and acquitted by another. of these, the Supreme Court itself imposed the death penalty itself on 2 persons who were acquitted by the High Court, and on 2 other persons who were acquitted by one judge of the Supreme Court.

This data, and the instances mentioned above raise serious questions regarding the robustness of the criminal justice process, which provides the context and structure for the operation of the irrevocable punishment of death. The operation of the criminal justice system raises serious concerns if such a large number of people who are given the death sentence by one court but are ultimately found to be innocent. The very existence of an irreversible punishment like death in such a system is must be considered in any discussion about the abolition of the death penalty.

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