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Review of crucial rape-murder verdict sought before SC

December 31, 2012 22:26 IST

A review of a very crucial verdict concerning rape and murder is being sought before the Supreme Court. Senior Advocate, Pramila Nesargi will petition the Chief Justice of India seeking a review of the Rameshbhai Chandubhai Rathod vs State Of Gujarat verdict, in which there were concurrent views on death sentence and finally a lifer was handed out after the matter was referred to a larger bench of the court. Vicky Nanjappa reports.

This case involved a 10-year-old who was first raped and then murdered. The death sentence was confirmed by the Gujarat high court following which it came in appeal before the Supreme Court. The matter was heard by Justice Dr Arijith Pasayat and Justice Asok Kumar Ganguly.

Both judges agreed on the conviction but differed on the matter of death setence. The matter was then referred to a larger Bench of the Supreme Court which upheld the view of Justice Ganguly who had reversed the order of death sentence.

Justice Dr Pasayat made certain observations in this case pertaining to the handing out of death sentences in such cases:

There is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins.

Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice should meet the challenges confronting the society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.

For instance, a murder committed due to deep- seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.

It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.

Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.

After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task.

The courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.

The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the victim of murder is an innocent child, or a helpless woman.

However Justice Ganguly differed on the point of death sentence and observed:

"The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accused -- and even of the convicted -- criminal against the State; a constant heart-searching by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it."

This was then referred to a larger bench which agreed with the view of Justice Ganguly. Pramila Nesargi says that this is the most recent and important judgment on rape and murder.

"Given the circumstances today and the manner in which the crime against women is going up, a review ought to be sought. The need of the hour is to have a strong judgment where rape and murder is concerned and with demands to hang rapists who are also accused of murder going up, a proper verdict is the need of the hour. I will petition the Chief Justice and seek a review," she also informed.

Vicky Nanjappa