Does abduction and murder of eight-year-old child falls under the category of rarest of rare case? In the light of the recent case: Arvind Singh v/s State of Maharastra.

A judge of the 18th century has beautifully said:
You are to be hanged not because you have stolen a sheep but in order that others may not steal a sheet.

There are several indications in the Constitution which shows that the writers of the Constitution were fully cognizant of the existence of the death penalty for murder and certain other offences in the penal code, 1860. The mention in the legislation list, right of Governor and President to suspend, commute or remit death sentence and right of appeal to the Supreme Court under article 134 shows that the death penalty or its execution cannot be regarded as an unreasonable, cruel or unusual punishment. Nor can it be said to defile the dignity of the individual within the preamble of the Constitution on the party of reasoning it cannot be said that death penalty violates the basic structure of the Constitution.

Background of the present case
(The case was decided on 24-04-2020 by the 3-judge bench of Hon'ble Mr Justice Vineet Saran, Hon'ble Mr Justice Hemant Gupta, Hon'ble Mr Justice M.R. Shah).

The eight-year-old boy was kidnapped by two accused. The kidnapping was done with the motive of getting rich by asking for ransom from the parents of the victim. However, unfortunately, the threat to kill the child become a reality and both the accused was charged under section 364A, 34, 120B & 302 of IPC, 1860.

The trial court and High Court has confirmed the death sentence, but in this present appeal, Supreme Court converted the sentence to life imprisonment till the life of the accused.

Observation
At this stage, concern arose that whether an abduction and murder of eight-year-old innocent boy for the sake of some money attract the doctrine of rarest of a rare case or not.

Talking about the doctrine of rarest of a rare case it was developed by the constitutional bench in 1980 in the case of Bachan Singh v. the State of Punjab[1]. Bachan Singh’s case serves as a watershed moment in the history of death penalty jurisprudence in India as it served Indian judiciary’s normative equivocation on the subject. The court noted that there must be new sentencing methodology were held to be like safeguard and as a guide and sentencing.

The court put forward some basic structure that has to be followed while granting capital punishment. The basic structure which has to be followed was that a) the application of capital punishment must be made in a very particular situation and b) the balance between aggravating and mitigating circumstances has to be drawn before the delivery of the opinion.

This rule was reiterated in 1983 in Machhi Singh v. the State of Punjab[2]. In this case, Supreme Court not only expressed the basic structure defined under the Bachan Singh's case but has also given the list of some of the factors to be considered while deciding whether the case falls under the category of rarest of rare case.

Some of the factors for consideration are:

1. motive or
2. mode of commission of murder or
3. nature of crime or
4. the magnitude of the crime.

Coming to the facts of the present case, the crime was morally wrong and was a social threat to society. However, considering the factors imparted by the law, we can say that magnitude of the murder was not as high as it could be considered as a rarest of the rare case because the mode of commission of murder was quite simple as the boy was killed by mere suffocating. Further, the accused surrendered at the first chance and also cooperated with the investigation of the police.

Furthermore, the main element that is mensrea or motive, the motive was not to kill the young boy but to create a threat so that they can ask for the ransom from the parents of the victim and get rich.

Thus, speaking of the factors and circumstances, this case does not fulfil the criteria of rarest of the rare cases as the crime was not at all brutal, cruel or ruthless in any nature nor it was unusual of its kind. Further, the motive was to create a threat and not to kill the boy. To support this view, I would like to talk about some considerable precedents passed by at the Supreme Court of India.

In the case of Gurnam Singh v. the State of Punjab[3], a young child was abducted by two accused. They had the deadly weapons in possession during the commission of the crime. The child was found dead, and because of no motive was found to commit the murder, the sentence was reduced to life imprisonment from the death penalty.

Further in case of Akhtar v. State of U.P.[4], oh young girl was abducted and was then raped. The victim was found dead, and the accused was caught red-handed. In the circumstances also, the Supreme Court does not found this case as an appropriate case to give capital punishment and therefore reduced the sentence of the death penalty to life imprisonment.

Similarly, in the case of Gagan Kanojia v. the State of Punjab[5], there was the kidnapping and murder of two children of age six and eight years. The core does not found it as the appropriate case to categorise under the rarest of rare case. Thus, the death penalty was commuted to the life imprisonment in this case also.

Later, in the case of Swamy Shraddananda (2) v. the State of Karnataka[6], the court held that in the interest of justice, the court could compute the death sentence imposed on the convict and establish it with the life imprisonment with a direction that the convict would not be released from the prison for the rest of his life.

Further, in the case of Shankar Kisanrao Khade v. the State of Maharashtra[7], Lokur J, held that due to lack of empirical data, application of r-r test become extremely difficult and awarding of death sentence becomes subjective. Thus, to overcome this corridor of uncertainty, the Supreme Court has adopted a via media approach where either a fixed term of imprisonment is awarded along with the imposition on the animation of the sentence.

This view was further approved by the Constitution bench of Supreme Court in Union of India v. V. Sriharan[8], holding that the power to impose a modified punishment providing for any specific term of in creation or till the end of the life of the convict as an alternative to the death penalty can be exercised only by High Court or Supreme Court of India.

Conclusion
In a country like Indian especially in north India, a trend of repetition of crime has been seen in several cases as the convicted person get out of the prison after a short interval and commit the similar offence again. In the present distressed and disturbed environment, if deterrent punishment is not resorted to, there will be complete chaos in the entire nation and criminal will be let loose endangering the lives of the thousands of the innocent people of our nation.

Despite infinite resources available, it would be quite impossible for the state to protect the life and liberty of the citizens of there state if the criminals are set loose and free. Therefore, when judicial minds take decisions to ensure that such offenders do not deserve to set loose in the society and offence committed by them is not of such a grave nature then they can commute the death penalty to life imprisonment.

Life imprisonment in such a case would mean the entirety of the life of the convicted person, and this could not be said to have been a violation of law in any way, and the court would be justified to impose any condition on the remission of the sentence.

Therefore, the Supreme Court in the present case has laid emphasis on the same principles laid down by Supreme Court in the case of Swamy Shraddananda (2) v. the State of Karnataka, Shankar Kisanrao Khade v. State of Maharashtra and Union of India v. V. Sriharan.

Thus, converting the punishment to life imprisonment till the life of the convict and restraining any remission until they complete their 25 years in prison is a perfect alternative passed by the court as considering the motive of the accused was to become rich by cutting corners and not doing hard work.

Therefore, in the light of above-mentioned discussion the decision of Supreme Court, in this case, stand with flying colours and helps the society by eliminating the evils between them and took care of the right of the convicted person by giving appropriate punishment to them. After all, in a civilised society, the rule of law shall prevail, and right of any human being shall not be snatched away.

Endnotes:

1. (1980) 2 SCC 684 : 1980 SCC (Cri) 580.
2. (1983) 3 SCC 470: 1983 SCC (Cri) 681.
3. (1998) 7 SCC 722: 1998 SCC (Cri) 1710.
4. (1999) 6 SCC 60: 1999 SCC (Cri) 1058.
5. (2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109.
6. (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113.
7. (2013) 5 SCC 546 : (2013) 3 SCC (Cri) 402: 2013 SCC OnLine SC 382.
8. (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695: 2015 SCC OnLine SC 1267.

Written By: Ayush Mittal - 3rd year law student, Vivekananda institute of professional studies, New Delhi
Email: [email protected]