Young age of victims in rape and murder cases not the only factor for imposing death penalty

Rithika Lal Thayat, Final year law student at Government Law College Kozhikode. Legal Director at Expectation Walkers (NGO) and EW Sells,Co-ordinator (Editorial Board) at The Legal Boffin.

INTRODUCTION:

The Indian Penal Code, 1860 is the primary statute for imposing criminal liabilities. It embodies various crimes and specifies its kind and term of punishment in India. Sections 299 to 377 under Chapter XVI contains the provisions of Offences Against Human Body under which Section 375 and Section 307 metes out the offence of Rape and Murder respectively.

WHAT IS CAPITAL PUNISHMENT:

The term Capital Punishment is ^[1]the process of sentencing convicted offenders to death for the most serious crimes (capital crimes) and carrying out that sentence. The specific offenses and circumstances that determine if a crime (usually murder) is eligible for a death sentence are defined by a statute In India the crimes for which Capital Punishment is provided is mentioned under the Indian Penal Code, eg. criminal conspiracy, murder, war against the government, abetment of mutiny, dacoity with murder, and anti-terrorism. With the advent of The Criminal Law Amendment Bill, 2018, Rape and Gang-rape of girls below the age of 12 years are now liable for punishment upto death sentence. In cases of rape that lead to death or leaves the victim in persistent vegetative state, a change was brought about by the Nirbhaya Gang-rape case.

The Hon’ble Supreme Court of India, in the case of Bacchan Singh vs. State of Punjab^{^[2]} held that Capital Punishment also known as Death Penalty is to be awarded for rarest of rare cases and the same was reiterated in Mukesh & Anr vs State For Nct Of Delhi & Ors.^{^[3]}

ISSUES IN DISCUSSION:

(i) While awarding death penalty what are the conditions to be fulfilled

(ii)Whether the low age of victim forms a valid ground for the sentencing of a person to capital punishment.

(i) While awarding death penalty what are the conditions to be fulfilled?

The Code of Criminal Procedure 1973 states that Death Sentence is inflicted in special cases- that falls under the definition of “rarest of rare cases” as held by the Apex Court in Bachan Singh v. State of Punjab {AIR 1980 SC 898 }. The power to decide what constitutes a rarest of rare case or not is the Court’s discretion. But while commuting such a sentence one of the major factors to be kept in mind are the aggravating and mitigating circumstances pertaining to the case in question.

Following are said to be the mitigating circumstances as observed by the Apex Court on the basis of which lesser punishment can be imposed:

1. That the offence was committed under the influence of extreme mental or emotional distribution;

2. If the accused is young or old, he shall not be sentenced to death;

3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;

4. The probability that the accused can be reformed and rehabilitated ;The state shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above;

5. That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;

6. That the accused acted under the duress of domination of another person;

7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.^[4]

Even after careful analysis and appropriate consideration has been given to the mitigating circumstances, if the Court is of the opinion that any sentence less than a death sentence will result in gross injustice then only the death sentence should be imposed. After all, the death sentence is the exception and Life Imprisonment is the rule.^[5]

In Machhi Singh vs. State of Punjab {(1983) 3SCC 470} the apex court laid down certain parameters to decide whether Death Sentence is to be awarded:

Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after maximum weightage to the mitigating circumstances which speak in favor of the offender?^[6]

(ii) Whether the low age of victim forms a valid ground for the sentencing of a person to capital punishment?

The Hon’ble Supreme Court in the case of Irappa Siddappa Murugannavar vs. State of Karnataka held that the low age of rape victims do not form a valid ground for the sentencing of a person to capital punishment.

This crucial observation comes on an appeal by Irappa Siddappa who was convicted and senteced to death penalty for kidnapping, rape and murder of a five year old in the village of Khanapur, Karnataka by a trial court and the same was confirmed by the Hon’ble High Court of Karnataka.

Facts of the case:

The accused Mr. Irappa Siddappa Murugannavar kidnapped the minor with the intention to rape her and took her to an abandoned land. He then throttled her to death and immersed the body in order to cause disappearance of evidence. The accused pleaded not guilty and claimed to be tried.

Issue at hand :

Whether the rape victim’s low age should be considered as the “only sufficient factor” for imposing capital punishment?

The Hon’ble Supreme Court made an observation concerning a recent judgment in Shatrughna Baban Meshram v. State of Maharashtra, stating that the low age of rape victims in rape-and-murder cases has not been always considered as the “only” or “sufficient factor” by this court for imposing capital punishment. In the said judgment, 67 judgments of the Supreme Court in the previous 40 years were surveyed wherein the trial court had imposed the death sentence. The court noted that the death sentence was confirmed in 12 out of 67 cases where the principal offenses allegedly committed were under Sections 376 and 302 IPC and where the rape victims were aged about 16 years and below. Out of 67 cases, at least in 51 cases, the age of the victims was below 12 years, the court had noted

Thus as is evident from the above data, had the young age of the victim also be considered as ground for awarding death penalty the apex court would awarded the same for all or almost all of the 67 cases. The court further held that even though the offence was heinous and required condemnation, it did not fall under the category of rarest of rare cases.

The Court thus 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. The Court also observed that Imposition of appropriate punishment is the manner in which the Courts respond to the society’s cry for justice against the criminals.^[7]

Furthermore the Court added that Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Apex Court concluded by noting, the Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.

Even though the bench comprising of Justices, L Nageshwar Rao, B R Gavai and Sanjiv Khanna confirmed the conviction of the accused for the above said offences, the Bench set aside the death penalty awarded and commuted it to Life Imprisonment because the courts below had handed down the punishment, also based on the young age of the victim.

4. CONSTITUTIONALITY OF DEATH PENALTY:

As far as the constitutionality of the sentence of death penalty goes, the Hon’ble Supreme Court held in the case of ^[8]Jagmohan v. State of UP that it was not violative of Article 14,19 and 21.^[9]The judge was said to make the choice between the death penalty and life imprisonment based on circumstances, facts, and the nature of the crime recorded during the trial. The decision to award the death penalty was therefore made in accordance with the procedure laid down by law as required by Article 21.

However in the case of ^[10]Rajendra Prasad v. State of UP the judge held that unless it was shown that the criminal was dangerous to society, capital punishment would not be justified. The learned judge pleaded that death penalty is to be abolished and that it should be retained only for “white collar crimes”. It was also held that the death penalty for the murder offence awarded pursuant to I.P.C. Section 302 did not violate the constitution’s basic feature.

Ultimately in the case of Bacchan Singh vs. State of Punjab and Mukesh & Anr vs State For Nct Of Delhi & Ors, the court introduced and reaffirmed the concept of awarding death penalty in the rarest of rare cases and held that it was not violatove of Article 21 nor is there any violation of the basic character of the Indian Constitution.

To conclude, the low age of the rape victim does not become a ground on the basis of which death penalty is given. Capital punishment is not to be awarded until and unless all the alternative options have been exhausted and the sentence of death penalty should only be confirmed by the higher courts keeping in mind the yardstick to measure whether the particular case constitutes as a rarest of rare case. [1]

BIBLIOGRAPHY