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Commutation of death penalty cannot be allowed in “rarest of rare case”: SC

Manoharan v. State by Inspector of police, Variety Hal Police Station, Coimbatore, Review petition (CRL) Nos. 446-447/2019 in Criminal Appeal Nos. 1174-1175/2019 on 07th November 2019.

The review petition was brought to the Supreme Court of India before the division bench comprising of Justice Rohinton Fali Nariman, Justice Sanjiu Khanna, and Justice Surya Kant.

The SC has dismissed the review petition as they don’t find any grounds to review their judgment upholding conviction and death penalty in Manoharan v. State (Criminal Appeal Nos. 1174-1175 of 2019)

A 10-year-old girl and her brother a 7-year-old boy was kidnapped by the accuse Mohanakrishnan and Manoharan. Initially, the Attempt was made to kill both the children by feeding them poisonous cow dung powder mixed in milk. However, the children took only a small amount of milk and didn’t die. The children were then thrown away alive in the Parambikulam-Axhiyar Project canal. The accused were arrested for committing rape on the girl child and the murder of both the children, but Mohanakrishnan was later shot dead in an encounter and Manoharan was convicted for the death penalty.

The question of law is as to whether the review petition can be filed in death penalty cases?

The counsel of the petitioner or the accused, Senior Advocate Siddharth Luthra had strongly contended that the order was passed in a majority of 2:1, where one of the Judges did not support the death penalty. This would be a conceivable ground for applying for a review petition in commutating the death sentence. Khanna J., in his minority opinion, did not deem it appropriate to award the death penalty but he upheld a conviction under the various offenses concerned.

The court held that;

“I would, therefore, uphold and maintain conviction of the appellant under Sections 302, 376(2)(f) and (g) and 201 IPC. To this extent the appeal is dismissed. In view of the aforesaid discussion and on balancing aggravating and mitigating circumstances, in my opinion, the present case does not fall under the category of “rarest of the rare” case i.e. there is no alternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission/commutation under Sections 432 and 433 CrPC. To this extent I would allow the appeal.”

Then the counsel argued that the accused is at his young age and his parents are aged. The counsel even tried to show that the accused is from the backward socio-economic condition. He also lacks any criminal record earlier.

He then argued that the court should not have depended upon the recent amendments such as an amendment made in POSCO Act, 2012. He further said that the amendment mentioned above was not in existence on the day of occurrence, so it is an injustice to deal with this just to justify the death penalty. The counsel then said that the confession made by the accused was not voluntary; it was by coercion in contravention of Section 163 and Section 164 of CrPc and Section 24, IEA.

He said that the accused was physically assaulted to confess in front of the Magistrate and he was under severe psychological stress owing to the in-custody killing of the co-accused Mohanakrishnan. So the confession made by the accused is suspicious.

The retraction letter shows that the accused has tried to stop the co-accused from committing rape and murder. The counsel for the accused argues that is might be the ground for commuting the death penalty.

The respondent answered the counsel’s contention in the following ways,

The respondent pleaded that the minority in the judgment cannot be taken as a promising ground as it was supported in the case Devender Pal Singh v. State of NCT of Delhi.

The court held that,

“I do not see any good ground and reasons to review my observations and findings in the minority judgment.”

The accused young age, backward socioeconomic status cannot be taken into consideration for the commutation of the death penalty.  While upholding the death penalty, the bench said

“Rather the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomized, and thereupon administered poison and finally, drowned by throwing them into a canal. It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist. We are of the view that the present offence(s) of the Petitioner are as grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare.”

The counsel for the accused said that the provision in the POSCO Act, 2012 cannot be dealt with the verdict. The change in the law during the case is pending it shows the social development by the elected legislators or representatives

The court’s reply to the involuntary contention made by the accused was that the magistrate clearly questioned him about his voluntary confession; the accused denied any of such coercion or physical assault by the police authority. Similarly, when the Magistrate asked him whether he was told some sweet words such as “the confession statement will be beneficial”, he denied the same. Also, even if the amendment is not made the accused might be punished with the death penalty, so it does not have anything with the commutation of punishment.

Thus, after listening to the petitioner/accused’s counsel’s contention & examining the precedents quoted by the petitioner/accused, the honourable Supreme Court observed that the review petition for commuting the death penalty was dismissed.

Manusri Ramakrishna

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