India: Rape, Death Penalty And The Doctrine Of Rarest Of Rare In India

INTRODUCTION TO THE DOCTRINE

In order to limit the imposition of death penalty to extremely narrow band of cases¹, Forty- two years ago, the Hon'ble Supreme Court of India in Bacchan Singh v. State of Punjab², propounded the "Rarest of Rare" doctrine³, and as a result, the Indian legal system has adopted the stance that "life sentence is the rule and the death penalty is the exception."⁴ This caveat is now world famous. The death penalty is not vehemently denied by Indian law, but it is also not completely prohibited. The Indian Penal Code of 1860, which lists offences punishable by the death sentence, only recommends the death penalty in the rarest of situations, such as section 302, 121 & 364A etc. When a crime is so heinous that it has the ability to terrorizesociety as a whole, the punishment of death penalty is applied, however not all offensesnecessarily call for the death sentence. Only offensesthat meet the criteria for the "rarest of rare doctrine" are subject to the death penalty. A five -judge bench in the year 1973 held that the concept of death penalty is constitutionally valid and does not violate the any provisions of the constitution. Going further they were of the opinion that decision as to whether the punishment should be of death penalty or life sentence depended on all the relevant information about the case and nature of the crime committed. Talking about the most heinous crime in India which is Rape (S 375 IPC), for many years has been causing a sense of fear in the minds of public. The punishment in most of the cases extends to fine and life imprisonment only. But there have been instances like Nirbhaya rape case⁵ which was so atrocious and heart wrenching that death penalty was the only way by which justice could have been provided to that innocent girl. Section 376A of the Indian Penal Code⁶ talks about death penalty to be given to the rapist when the assault so done results into death or permanent vegetative state of the victim. But while awarding death penalty in cases of rape various factors have to be taken into consideration beforehand to arrive to any conclusion. The case in hand "Mohd.Chaman vs State (N.C.T. of Delhi)⁷" dwells into those factors only. There are no straight jacket parameters mentioned in any legislation. In further chapters the case in hand will be discussed. Also, the factors that were taken into consideration to decrease the punishment from death sentence to life imprisonment have also been covered and how the doctrine of rarest of rare cases was applied.

LEGISLATIVE FRAMEWORK

There hasn't been a single offence in the Indian Penal Code that carries a compulsory death sentence. But India is one of the few nations around the globe who still uphold the penal status of death penalty.

The case in hand dates back to year 1995, wherein appellant named Mohd. Chaman aged 30 years. Victim girl named Ritu Kumari was aged one and a half years at the time of incident. Bindu shah, father of victim ran a tailoring factory in neighbourhood. On 10^th April 1995 while Bindu shah was at work, his wife Smt. Lalita went out for some work in market leaving her 2 daughters in care of some neighbour. When she came back her younger daughter was missing. After searching for a while, she found that door of the appleant's room was half open, she found Ritu there, lying on the floor in an unconscious state. The appellant was there in the room at that time and then on seeing Lalita, picked Ritu from the floor and handed her over to Lalita. Her mother found her without undergarment, wearing only frock. In addition to that several she noticed Ritu's cheek and other areas of her body had many bite scars from bleeding teeth. When she inquired about Ritu's condition, the appellant advised her to leave quietly because if she did, she would suffer the same fate and the police would be powerless to take any action against him. When taken to hospital on advice of doctor, she was declared brought dead. The people present informed the police that Ritu had been raped and killed by the appellant. Trial court after assessing the facts convicted the appellant under section 302⁸ and 376⁹ of Indian Penal Code and sentenced him with extreme penalty of death. Such cases where a barbaric act of rape is committed on an innocent girl who was only 1 ½ year old and which further lead to her death as injuries were inflicted on her liver deserves nothing less than a death penalty. High court also agreed with the verdict of lower court. An innocent girl had fallen victim to a monster like thirsty 30-year-old man and that man raped and killed her in most heart- wrenching way, eliciting intense and extreme outrage from the community. The court determined that such instances would fall under the category of the rarest of rare, considering that they would shock society's conscience.

AGGRAVATING AND MITIGATING FACTORS: INDENTIFYING AND BALANCING

Unsatisfied, the appellant filed an SLP challenging the verdict of death penalty passed by both the lower court as well as high court of Delhi. The court gave various reasonings after referring to various cases. To categorise the offence of murder beforehand, by laying down some benchmarks on the grounds of its culpability and taking into consideration all mitigating and aggravating factors would be practically unfeasible and of no use. At best broad guidelines can be furnished but that would also mean cautious adherence and not blindly. Aggravating circumstances generally relate to crime and include repeat in offences, culpability of an offence etc. Mitigating circumstances on the other hand relate to a criminal such as the offender might have been coerced to commit that offence, act committed on provocation or under mental or emotional distress, offender being a minor, chances of offender to be reformed or rehabilitated. It emphasised that a death sentence should only be given out when an examination of the aggravating and mitigating factors reveals some unique justifications. While both of these circumstances are penned down, full weightage is to be accorded to the mitigating circumstances and a fair balance must be drawn down between both the circumstances. The public might choose the harsh side of the punishment when their soul is so disturbed and shocked by the crime. But this doesn't happen every time and happens only in "rarest of the rare cases". This time they would want the judicial powers to sentence the offender with death penalty. And this is what happened here in this rape case which led to the verdict of death penalty. But here the apex court reconsidered the circumstances of the case and came to a conclusion whether even after according maximum weight to the mitigating factors, will the offender be convicted of death penalty?

This offence just like any Rape crime was unquestionably serious and horrific, and the appellant's behaviour was despicable. It displayed the filthy and depraved thoughts of a person who was in no control over his sexual desires. The court was not persuaded to accept that the case can rightly be labelled one of the "rarest of rare cases justifying the death punishment," after weighing both the circumstances shown by the records. Moving further, the court also said that they were not at all convinced that the appellant was this dangerous that the community would be put in risk if his life were spared. Even after mitigating factors were given more weightage, it was still not possible to impose death penalty on him. Therefore, his sentence was converted to life imprisonment and he was convicted under section 302/34 of IPC, 1860.

Such difference of opinion between lower, high court and supreme court which arose in this case was because of lack of principles. In the lack of any specific precedent governing rules or standards, the judge in many cases is largely influenced by his predispositions and prejudices, value system, and social philosophy while deciding whether to impose the death penalty or life in prison on the defendant convicted of a capital offense. This calls for a proper policy making. With proper policy in hand and judge's wider and progressive interpretation of the bare text, proper decision can be taken in this dynamic society.

CONCLUSION

The "rarest of rare" theory clearly has two opposing sides. With inconsistent sentence decisions and weak explanation, the Indian courts have subtly suggested over time that a sentencing policy is required. The concept of aggravating and mitigating variables is case-specific; for example, a rare concept of a rare case is a case with unknown aggravating and mitigating circumstances. That is completely outside of his discretion what might be considered brutal for one individual and not for another. Death penalty isinflicted for "exceptional grounds".

Furthermore, death penalty is not mere question of penalising the offender rather a fact of law and morality. Even though law would establish a statement and award death penalty for heinous crime, it would be in contrast with morality. The life of person always supersedes example setting judgement. Ergo, life imprisonment would suffice the purpose of penalising an offender. Perhaps it would be best that the final say should be left to the court itself. Not only should the punishment of death sentence be given humanely but the notion of state prescribing for death penalty in our civilised society hold no place.

But with the ever-evolving scenarios and changing social dynamic of our county, the degree of heinousness of crime have taken a spin. Therefore, in rarest of the rare cases, awarding of death penalty would not compromise the moral aspect that law wants to establish.

Footnotes

1. Deshpande, Madhavi, and Shubhangi Gurpur. "Connecting the Dots in 'Rarest of Rare': Is Judicial Discretion the Perfection of Reason? Tracking Judicial Discretion in Death Penalty Cases in India." Cardiometry 25 (2022): 360-367.

2. 1(982) 3 SCC 24.

3. Raj, Rohit. "Rarest of the Rare Doctrine-An Analysis." Law Mantra Online 4, no. 5 (2016).

4. Rajkumari; Singh and Ripu Daman Pratap. "" The Doctrine of Rarest of Rare": A Critical Analysis." Part 2 Indian J. Integrated Rsch. L. 2 (2022): 1.

5. (2017) 6 SCC 1.

6. Indian Penal Code, 1860, S376A, No. 45, Acts of Parliament, 1860 (India).

7. (2001) 2 SCC 28.

8. Indian Penal Code, 1860, S302, No. 45, Acts of Parliament, 1860 (India).

9. Indian Penal Code, 1860, S376, No. 45, Acts of Parliament, 1860 (India).

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