“Time and again, this Court has categorically held that life imprisonment is the rule and death penalty is the exception and even when the crime is heinous or brutal, it may not still fall under the category of rarest of rare.”

The Supreme Court, reiterating the principle that life imprisonment is the rule and death penalty is the exception, has observed that even when a crime is heinous or brutal, it may not still fall under the rarest of rare category.

A three-judge bench comprising of Justice AK Sikri, Justice Ashok Bhushan and Justice S Abdul Nazeer observed thus while commuting death penalty awarded to Sukhlal, who was found guilty of murdering a lady in whose house he was working as a gardener.

The bench, in its order passed on November 20, 2018, held that the offence is proved beyond reasonable doubt by leading satisfactory evidence by the prosecution and thus confirmed the conviction recorded by the trial court and the high court.

Holding that the high court erred in confirming the death penalty, the bench invoking Bachan Singh judgment, observed: “Time and again, this Court has categorically held that life imprisonment is the rule and death penalty is the exception and even when the crime is heinous or brutal, it may not still fall under the category of rarest of rare.”

It then said that the decision to impose the highest punishment of death sentence in the instant case does not fulfil the test of “rarest of rare case where the alternative option is unquestionably foreclosed”.

Commuting the death sentence to that of life imprisonment with a cap of 18 years, the bench further added: Bachan Singh (supra) in no unequivocal terms sets out that death penalty shall be awarded only in the rarest of rare cases where life imprisonment shall be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty.

November Blow To Death Penalty

Live Law had published a report titled ‘September Blow To Death Penalty’ when in September 2016, seven persons whose death penalty awarded by high courts for committing heinous crimes like rape and murder was commuted by the Supreme Court.

Last month of November also witnessed seven commutations of death penalty by the apex court. The month ended with an observation made by a senior Supreme Court judge that the need of death penalty should be re-examined.

On November 28, a three-judge bench of Justice Kurian Joseph, Justice Deepak Gupta and Justice Hemant Gupta commuted death penalty awarded to a man convicted for the murder of three persons. It held that proper psychological/psychiatric evaluation to assess probability and possibility of reform of criminal needs to be done before awarding death sentence.

On November 14, the Supreme Court bench Justice NV Ramana, Justice Mohan M Shantanagoudar and Justice Mukeshkumar Rasikbhai Shah commuted death sentence imposed on a man convicted in a triple murder case, in which the victims were minor children. On November 15, the same bench commuted a death sentence awarded to a man for kidnap and murder of his cousin. On November 14, this bench, in another case, acquitted a man of rape charges and also commuted the death sentence imposed on him, while upholding the conviction for murder.

The bench of Justice AK Sikri, Justice Ashok Bhushan and Justice Indira Banerjee commuted death sentence imposed on rape accused in two different cases, by recalling its earlier orders by which it had dismissed the SLPs filed by them in limine. It also held that Special Leave Petitions filed in those cases where death sentence is awarded by the courts below should not be dismissed without giving reasons, at least qua death sentence.

On November 12, the bench headed by Justice Kurian Joseph recalled a 2012 order by which it had dismissed review petition against a judgment confirming death penalty. It also posted another review petition (dismissed earlier) filed in death penalty case for an open court hearing.

On October 31, the bench comprising Justice Kurian Joseph, Justice AM Khanwilkar and Justice Dhananjay Y Chandrachud recalled its 2009 order in criminal appeals, wherein it had confirmed death sentence awarded to some of the accused and restored it for some other accused. The bench noted that there was no proper representation for some of the accused in the criminal appeal filed by the state.