Courts should record "special" reasons while awarding death penalty and "must" take into account the crime and the character of the criminal which should reflect "extreme depravity" to deserve such a punishment, the Supreme Court has ruled.
A bench of justices A K Patnaik and Gyan Sudha Misra, which set aside a Rajasthan high court verdict acquitting two persons in a decade-old gang rape and murder case, found fault with the trial court order sending convicts to the gallows, saying the "special reasons" noted by it do not make it a rarest of rare case.
"...for awarding death sentence, special reasons have to be recorded as provided in Section 354(3), CrPC and while recording such special reasons, the court must pay due regard both to the crime and the criminal," the bench said.
Referring to a constitutional bench verdict, it said "there are materials to show that the crime committed by respondents, both rape and murder of the deceased, were cruel, but there were no materials to establish that the character of the respondents was of extreme depravity so as to make them liable for the punishment of death."
"The trial court has recorded special reasons for imposing the punishment of death on the respondents and these are that the respondents deceived and took away the deceased, turn wise committed rape on her in the darkness of night and thereafter committed her murder by throttling her by her chunni (scarf) and hence they were not entitled for any leniency and should be punished with death.
"In our view, the reasons given by the trial court do not make out the case to be a rarest of rare cases in which death sentence could be awarded to the respondents," it said.
Setting aside the high court's acquittal verdict, it awarded rigorous life imprisonment to convicts -- Ram Niwas and Balveer -- for strangulating the victim on the night of November 1, 2003.
The convicts, who had ravished the victim before killing her, got ten years jail term for the offence of gang rape.
The trial court had relied on the testimony of an accomplice of the accused who later turned the approver but the high court and refused to consider it.
The apex court, in its 33-page verdict, rejected the view of the high court that for turning an approver, who is also granted pardon, a person "has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eyewitness."
"The high court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence.
"The high court also failed to appreciate that Section 133 of the Indian Evidence Act provides that an accomplice shall be a competent witness against an accused person.”
"...When the pardon is tendered to an accomplice under Section 306, CrPC, the accomplice is removed from the category of co-accused and put into the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in Section 133 of the Indian Evidence Act," the apex court said.