About the Author
Ananditha SR is a 1st year BA LLB student from Government law College Thiruvananthapuram.
Petitioner: State of Kerala by Public Prosecutor
Respondent: Nino Mathew
Judges: The Honourable Justice Alexander Thomas The Honourable Justice C Jayachandran
Citation: Criminal appeal no: 1/2023 in death sentence ref no. 2 of 2016
Facts of the case
Kerala High Court calls for mitigation investigation in Jisha, Attingal twin murder cases. In a significant development, the Kerala High Court has decided to re-examine the decision to award death penalty to the accused involved in the high profile Jisha murder case and Attingal twin murder case. The High Court ordered a mitigation investigation as to whether the death sentence awarded by the trial court be reduced to life imprisonment. The mitigation investigation is the first such instance in the state. Two experts involved in the Project 39, a part of Delhi National Law University has been entrusted with the investigation. If necessary, the government can also investigate the same. The mitigation investigation report will be considered after the decision on the capital punishment has been taken by the High Court.
Project 39A
Project 30A is inspired from article 39 A of our constitution which imposes an obligation on the state to provide free legal aid to to ensure justice to all citizens of the country, a provision that furthers the wound up values of equal justice and equal opportunity by removing economic and social barriers. These constitutional values has to be considered with great importance as a large section of our society remains away from the access of justice. Using empirical research to re-examine practices and policies in the criminal justice system, Project 39A aims to trigger new conversations on legal aid, torture, forensics, mental health in prisons, and the death penalty. There research on the criminal justice system will be based on rigorous empirical work (research that is based on observation and measurement of phenomena, as directly experienced by the researcher). They observe that the Criminal justice system in India lacks real empirical basis in terms of policy making. As important as rigorous research, they are also giving much importance in communicating to the ordinary people far beyond advocates, judges and people involved in law field, the issues involving the criminal justice system and it concerns us.
Issue
The issue at hand was that whether the mitigation investigation should be conducted in the beginning of the trial or after the final order was passed. It was pointed out that the mitigation investigation can be done only after the conviction is ordered and according to Sec.235(2) of the CrPC, when a separate hearing is conducted for this cause and not any time before.
Contention of the appellant
Since this appeal is a continuation of the trial process the mitigation investigation may be started only after the court has heard the matter finally and confirmed the death sentence or life imprisonment as the case be.
Judgment
Relevant sections from CrPC
Sec.235 of the CrPCJudgment of acquittal or conviction.-
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceedsin accordance with the provisions of section 360, hear the accused on thequestion of sentence, and then pass sentence on him according to law.”
Sec.354(3) of the CrPC When the conviction is for an offence punishable with death or, inthe alternative, with imprisonment for life or imprisonment for a term ofyears, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
Precedents quoted
The court noted many landmark judgements like Santa Singh v. State of Punjab, Allauddin Mian v. State of Bihar , Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India & Ors, Mohd. Mannan v. State of Bihar,Bachan Singh v. State of Punjab to substantiate its arguments. It also considered the points from 262nd Report of the Law Commission of India, dealing with the penological perspectives of death penalty.
Analysis
The court noted that the prosecution, defence and the Court have to make proper steps to make sure that the case comes under the “rarest of the rare” category to impose the death penality. In the case of Death sentence reference stage the court has to establish that other reduced forms of punishment like the life imprisonment would not be imperative for such heinous crime to impose capital punishments. Addressing the question as to when to commence the mitigation investigation, the court after considering the report from the expert committee ordered that the mitigation investigation be started from the beginning of the trial. The court reasoned that if the said exercise be conducted only after the final conviction is passed then there will be serious issues of delay if the process is to be conducted effectively. It will make the convict who was awarded death sentence by the trial court and waiting for the conformation of the High Court more anxious and create mental trauma doubting whether his conviction would be mitigated and reduced to life imprisonment or be hanged to death. He may experience a “Damocles’ sword hanging over his head”. This can become a mentally torturing process for the convict. we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity, notwithstanding his crime. This problem can be reduced to the greatest extend if the mitigation investigation process is started even before the appellate court commences to hear the case, the there will require a minimal time to complete the said assessment process after the court finally hears the case and affirms the conviction. Now the High Court may be equipped to render a decision as to whether the death sentence could be converted to life sentence or whether the impugned death sentence is liable to be confirmed. This is an important reason for the court to hold that there is no legal bar in conducting the mitigation investigation before the commencement of the hearing in the appellate court. It was held that such reports of the mitigative studies may not be available to the court and be kept confidential because it may create a reasonable likelihood of bias and a preconceived notion in the minds of the judges.
Conclusion
The objective of punishment is to rehabilitate prisoners, but the death penalty does not do this. The purpose of the punishment is to transform the accused and enable him to rejoin society and contribute as a law-abiding citizen. Let us take the case of a person consulting a doctor infected with a disease. The doctor diagnoses his disease and take the necessary steps to cure his disease. Similar is the case of a criminal. When a person accused of a crime, is brought before the court, it is the duty of the court bring out the elements of the crime and take necessary steps to transform that person however ruthless he might be, into a better human being and help him integrate into the society in same way how a doctor cures a patient’s disease. This is the very nature of the punishments prevailing in India. We follow reformative theory of punishments which aim at transforming the culprit through the individualization approach. Only in extreme cases which falls under “rarest of rare” category as held in Bachan Singh case should be given capital punishment. Death penalty is confirmed only after taking all the required steps i.e reference, reason for such a verdict, proving that it falls under “rarest of rare category” and mitigation investigation. Article 21 states that no person shall be deprived of his personal life and liberty except by a procedure established by law. But in Menaka Gandhi v. Union of India held that the procedure established by the law must be reasonable and the provision of death penalty is directly contrary to the Article 21. Being behind bars is no reason to stop leading a productive life. The convict in the Attingal twin murder case Nino Mathew, a software professional has been on the job during the four months he spent in the jail before the conviction. The jail authorities are looking to utilise the convict’s skills in hardware and software. He was entrusted with the job of computerising the jail. The misconception that the jail inmates are a burden to the nation and it’s resources must be wiped off. These inmates contribute crores of rupees to the revenue of the nation. Inmates are normally remunerated with a nominal pay for their service while in the jail premises. Through these productive activities and individualization, the convicts can be transformed and reformed. The purpose of punishment in criminal law, if looked at from a wider angle and a broader perspective, is to achieve the goals of an orderly society. There is a need to ensure the restoration of peace and prevent future occurrences of crimes by balancing the competing rights of the criminal and the victim.
