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Report No. 262

(ii) Admitted Error in Imposing the Death Sentence

5.4.11 Compounding the concerns regarding a high reversal rate in cases of capital offences, as well as the inconsistencies in the application of the rarest of rare doctrine, is the high rate of error acknowledged by the Supreme Court itself in its own decisions. In just three cases: Bariyar, Sangeet, and Khade, the Court acknowledged error in 16 cases, involving death sentence to 20 persons. 16 of these persons were sentenced to death in the period between 2000-2013, which implies that the Supreme Court has admitted error in imposing the death penalty on 16 persons out of the total of 69 who were given the death penalty by the Court in this time period.

This is an error rate of 23.2%. The Supreme Court therefore has acknowledged that in close to a quarter of the cases in which it has given the death penalty in the recent past, the death penalty was imposed erroneously.

5.4.12 In Bariyar, the Court examined the decision in Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175, where it was held that

It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial... The punishment to be awarded for a crime... should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal. Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175, at para 124. Held per incuriam Bachan Singh in Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 63.

5.4.13 Bariyar held that the exclusive focus in Ravji on the crime, rendered this decision per incuriam Bachan Singh. The Court listed a further 6 cases where Ravji had been followed, and which had therefore relied on incorrect precedent. Two of the 11 persons given the death sentence in this manner, including Ravji himself, were executed, and of the remaining, 3 are still on death row, with their mercy petitions having been subsequently rejected, despite the Court having acknowledged its error 6 years ago.672

672 The mercy petitions of Saibanna and Shivaji Alhat have been rejected. News reports indicate that the Ministry of Home Affairs has recommended the rejection of the mercy petition presented by Mohan Anna Chavan. See, Reject Mercy Pleas of 2 Convicts, Pranab Told, The Hindu, August 18, 2015,
http://www.thehindu.com/news/national/reject-mercy-pleas-of-2-convicts-pranabtold/article7551067.ece

5.4.14 Ankush Maruti Shinde & Ors. v. State of Maharashtra, (2009) 6 SCC 667 which was delivered about two weeks before Bariyar, and which imposed the death sentence on 6 persons relying on Ravji, was not noticed by the Court in Bariyar. Surprisingly, even after Bariyar expressly held that Ravji was decided per incuriam, the decision in that case has been followed by the Supreme Court in at least three other cases.

Though these cases have not been noticed by the Supreme Court so far, in all, an additional 9 people have been given the death sentence relying on Ravji. Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (2011) 14 SCC 401; Sunder Singh v. Uttaranchal, (2010) 10 SCC 611; Jagdish v. State of M.P, 2009 (12) Scale 580. In these cases, the Court relied on Ravji as a comparator case, to state that in the facts of this case, the death penalty had been imposed (and using this fact to appreciate whether the death penalty should be imposed in their own fact situations). The Court did not note that the imposition of the death penalty in Ravji was based on a wrong application of the law.

5.4.15 Similarly, the Supreme Court in Shankar Khade doubted the correctness of the imposition of the death penalty in Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220 where the Court had held that "the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals." Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, at para 15.

The exclusive focus of this decision on the crime and not the criminal was questioned in Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546. In Khade the Court opined that prima facie the judgement had not accounted for mitigating circumstances relating to the offender. Dhananjoy Chatterjee was executed in 2004.

5.4.16 Similarly, in Sangeet, the court noted an additional 3 cases where Bachan Singh's direction to consider both aggravating and mitigating circumstances had not been followed. Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37; Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317.



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