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Report No. 262

(vii) Cases of Other Prisoners Sentenced to Death under Judgements Subsequently Declared to be Per Incuriam

6.6.17 The Supreme Court in the recent years has found a number of decisions, which have resulted in death sentences to be per incuriam. This aspect has also been dealt with in the previous chapter.733

733 Refer to Table 5.1 for an exhaustive list of prisoners from all such cases which have been rendered per incuriam.

(a) Cases which have placed reliance on the Per Incuriam Decision of Ravji

6.6.18 In Bariyar, the Supreme Court, after pointing out the error in Ravji's case, also noted 6 other cases where Ravji's case was followed and held that these decisions were also wrongly decided:

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. Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 63.

6.6.19 The Court, in Bariyar, observed that it is clear that none of the circumstances relating to the 13 convicts in these six cases have been brought on record and considered by the Supreme Court during the sentencing deliberations.

The cases mentioned above have been declared to be per incuriam in Bariyar by the Supreme Court for having followed Ravji. Another case, Ankush Maruti Shinde and Ors v. State of Maharashtra, (2009) 6 SCC 667 at para 28, where six prisoners were sentenced to death by explicitly following Ravji's wrong reasoning like the cases mentioned above, was decided just a few days before Bariyar and was therefore not noticed in that decision.

6.6.20 Subsequent to Bariyar, the Supreme Court again in Dilip Tiwari v. State of Mahrashtra, (2010) 1 SCC 775, at para 68 raised the issue of error committed in Ravji's case and other cases in which Ravji was followed. The Supreme Court in Rajesh Kumar v. State, (2011) 13 SCC 706, at paras 66-70 once again emphasized the miscarriage of justice caused in the Ravji Rao case, and other cases, which followed the Ravji's precedent. Thereafter, the Supreme Court in Mohinder Singh v. State of Punjab, (2013) 3 SCC 294, at para 37 has held that Ravji's case and those following it have been wrongly decided.

(b) The Case of Saibanna v. State of Karnataka, (2005) 4 SCC 165

6.6.21 The Supreme Court in Aloke Nath and Bariyar has doubted the award of death sentence in Saibanna v. State of Karnataka ('Saibanna'). The facts of the case bear out that Saibanna had killed his first wife as he suspected that she was unfaithful to him. He was convicted and sentenced to life imprisonment on 2.2.1993. He re-married whilst he was out of the prison on parole. Later, on 13.9.1994 when he was again released on parole, he killed his second wife as well suspecting that she too was unfaithful to him.

In 1995 he was charged under Section 303 IPC, which prescribed the mandatory death sentence, even though the Section had already been struck down by the Supreme Court in Mithu v. State of Punjab, (1983) 2 SCC 277 ('Mithu'). The High Court proceeded to confirm the death sentence under Section 303 IPC. The Supreme Court in appeal upheld the judgement. Saibanna v. State of Karnataka, (2005) 4 SCC 165. The Court held that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment.

6.6.22 Subsequently, the Supreme Court in Aloke NathDutta v. State of West Bengal, (2007) 12 SCC 230, at paras 149-50, held that the view taken in the petitioner's case by the Supreme Court was "doubtful". Thereafter, in Bariyar, the Court held that its judgement in Saibanna was "inconsistent with Mithu and Bachan Singh," Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at paras 49-52, both of which are judgements by Constitution Benches.

This admission of error in Saibanna's case by the Supreme Court was also brought to the notice of the President by 14 retired judges (including one former Supreme Court judge, five former Chief Justices of different High Courts, and eight former High Court judges). The President rejected Saibanna's mercy petition on 4.1.2013.

(c) Decisions held to be Per Incuriam by Sangeet and Khade

6.6.23 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 aspects pertaining to the convict was questioned in Khade. 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.

6.6.24 Similarly, in Sangeet, the Court noted an additional three 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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