Death penalty or capital punishment is the highest degree of punishment to be awarded to an individual under the penal law of any country. It has been in existence since the inception of the State. There has been an intense debate in India whether capital punishment should be abolished or retained. Article 21 of the constitution guarantees every citizen the fundamental right to life and it expressly states that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. This means that the life of an individual can be taken only through the given process of law and not otherwise.
The purpose of Indian Penal system is two folds: one is deterrent and the other is reformative. The inherent principle of ‘innocent until proven guilty is followed in the justice delivery system.’ Till now after independence, nearly 1400 people have been hanged to death for committing heinous crimes. The Law Commission and various other committees have expressly stated that the death penalty should be abolished except in terror-related cases. The Supreme Court has laid down the golden principle way back in 1980 in ‘Bachan Singh vs the State of Punjab’ that the death penalty can be awarded only in ‘rarest of rare’ cases.
The moralists have been insisting that death penalty should be abolished hook, line and sinker because once a person has been executed then there is no possibility of any atonement even if the facts dawn at the later stage that the person who has been hanged to death was really not guilty for the punishment. In the first week of March this year the Supreme Court has acquitted six innocent persons, who were awarded death penalty by the Nashik Sessions Court. The conviction of three of them was confirmed by the Bombay High Court. However, it commuted the sentence of the other three to life imprisonment. Thus, the Supreme Court heard two sets of appeals, one was filed by those whose death penalty was confirmed and other was by the Government of Maharashtra against the commutation of the death penalty of three convicts to life imprisonment. This case, which brought six innocent persons to the brink of execution, has left a deep scar on our criminal justice delivery system.
The brief facts of the case are as follows: Six persons-Ankush Shinde, Rajiv Shinde, Raju Shinde, Ambadas Shinde, Bapu Shinde and Surya were guilty of murdering Trambak Satote, his daughter Savita, his sons Sandeep and Shrikant and his nephew Bharat More on the intervening night of June 5-6, 2003. Luckily, his wife Vimalabai and her son Manoj survived the attack and went on to identify all these six men in the Test Identification Parade (TIP). The Nashik court sentenced all of them to the death penalty, but the High Court took the view that Ambadas Shinde, Bapu Shinde and Surya did not deserve death because they had not raped Savita. The Supreme Court acquitted all of them. Why? What has happened with eye witness testimonies? Did Vimalabai and Manoj lie to the court? Were they compelled to make false testimonies? These are the questions which are nagging to the minds of the people. It is true that five persons were killed in the attack, then who killed them? Does it mean that real killers got away without any punishment?
The Court has now directed after the lapse of 16 years to conduct further investigation under Section 173(8) of the Code of Criminal Procedure qua those four persons ‘who were identified by Vimalabai, the injured eye witness from the album of photographs of notorious criminals with their names, i.e., immediately after the incident, whose particulars and names were mentioned in her statement so that real culprits should not go unpunished in a crime in which five persons were killed brutally and one lady was even subjected to rape.’
With regard to other accused persons, the Supreme Court said, ‘the deposition of Vimalabai was full of contradictions/omissions and improvements and therefore she is not a reliable witness who can be believed. Even otherwise it appears that there was no fair investigation by the investigating agency/prosecution. The prosecution has suppressed the material fact from the Court. Neither the investigating officer nor even the special executive magistrate initially stated anything about the recording of the statement of Vimalabai on 7.6.2003, a day after the multiple murders and she identified four persons from the album of the photographs of the notorious criminals. In fact, it came to the light during the course of hearing of the appeal before the High Court. Her memory was fresh, and it ought to have been given more weight than her identifying the accused persons after a long delay.
It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 & 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of the investigation is ultimately to search for truth and to bring the offender to book. Apart from ensuring that the offences do not go unpunished, it is the duty of the prosecution to ensure fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for just determination of the truth so that due justice prevails.
The Court said that ‘it is the responsibility of the investigating agency to ensure that every investigation is fair and does not erode the freedom of an individual, except in accordance with law. One of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Cr.PC. Nothing is allowed by the law which is contrary to the truth. The criminal justice administration system in India places human rights and dignity for human rights at a much higher pedestal. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution of India. In case of Darya Singh v. the State of Punjab has observed that the prosecution must act fairly and honestly and must never adopt the device of keeping back from the Court only because the evidence is likely to go against the prosecution case.
Murder and rape are indeed a reprehensive act and every perpetrator should be punished expeditiously, severely and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. The prosecution/investigating agency is expected to act in an honest and fair manner without hiding anything from the accused as well as the Courts, which may go against the prosecution. Their ultimate aim should not be to get a conviction by hook or crook. It is to be noted that all the accused persons are nomadic tribes coming from the lower strata of the society and are very poor labourers. Therefore, in the facts and circumstances of the case, false implication cannot be ruled out since it is a common occurrence that in serious offences sometimes innocent persons are roped in. We have no other alternative, but to acquit the accused of the offences for which they are convicted.
The Court observed that Ankush Maruti Shinde, who was subsequently found to be a juvenile, he has clearly opined that he has lived under sub-human conditions for several years. He was kept in isolation in solitary confinement with very restricted human contact and under perpetual fear of death. He was only allowed to meet his mother and that too only infrequently. He was not even allowed to mix with other prisoners. All the accused remained under constant stress and in the perpetual fear of death. Therefore, in the facts and circumstances of the case, we direct the State of Maharashtra to pay a sum of Rs.5,00,000/- to each of the accused by way of compensation.
Our justice delivery system is slower than the tortoise and it takes not years but decades to decide whether a person is guilty or innocent and during this period he or she has to languish in jail. If the person is declared innocent as has happened in the above-mentioned case who should be held responsible for their pains and sufferings? They have been in jail for more than fifteen years apparently for no fault of theirs because they were found to be falsely implicated. Is it not the time for the higher judiciary and the legislature to take notice of such cases where many times the innocence are implicated and convicted but the real culprits go scot-free because of the shoddy investigation of the cases by the police?
No comments:
Post a Comment