Life term is rule, death penalty exception: SC

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1. ca.dev kumar kothari says:

   After reading the judgment very carefully, with all respect to their lordships, I feel that their lordships have taken a very sympathetic view only for the mitigating reason that the appellant accused was a poor man, his own house was occupied by his wife and children and he was thrown out of his own house etc. As noted in judgment “The basic grievance of the appellant was nothing but his desire to occupy his house which was occupied by none else than his own wife, daughters and son”. As per SC this factor was not considered as a mitigating factor by lower courts. I feel that taking the other side of the coin on the same aspect, more serious thought was required on the aspect as to why the appellant was thrown out from his house- due to his conduct and RI of 12 years he had to go out of his house and not that he was thrown out of his house by his wife and children. More serious thought was to be given on how dangerous he continued to be even when RI of 12 years was in progress during different occasions in 2005 and then in 2006.

   A more serious thought was to be given on aspect that his own wife and own children were witnesses against him. In our society, lot of patience is shown by wife and children towards husband and father respectively. This case shows that the appellants conduct, at least from 1999 was rarest of rare when he committed rape on his own minor daughter and that too before his own wife- this itself is a rarest of rare crime, though murder did not take place at that time, which attract life sentence or death sentence, yet the crime was rare of rarest. It is quite natural and likely that as per our social and family system many such crimes might have been committed by him but were not reported. Such crimes might have committed on his wife and children earlier. That probability cannot be ignored.

   Even after having sentence of 12 years RI, conduct of appellant during 2005 and 2006 clearly shows the magnitude of continuing criminal set of mind, and no correction at all. Rather the environment in jail might have made him criminal of greater degree.

   When he went with axe to his wife and children it was clear that he had determination to kill his wife and children. In fact he could have killed his other daughter also who saved herself from him by hiding in a room.

   When he was on RI and considerable number of years were still to pass to fully undergo the RI, there was no need for him to have own house as he was to live in jail for many more years, Therefore, I feel that the need or desire of house by a poor appellant as stated by the SC was not a favorable mitigating factor.

   It is primary duty of husband and father to provide reasonable , safe and secure accommodation for their living.

   When he attacked his wife and children witch apparent and clear intention to kill them, even if to take back possession of house from his wife and children, for his living cannot be regarded as a mitigating factor. He could have taken a legal course of action for taking back possession of house, but he cannot take criminal action for the same as he did with clear intent.

   It is likely that this judgment of the Supreme Court may affect High court’s decision in murder reference (and appeal also which is likely to be filed) in Delhi gang rape and murder (took place on 16.12.12) case in which death sentence was pronounced few days back. The punishment must have a deterrent effect on the society. However, if it takes long time and then such leniency is shown, then there will hardly be any effect of deterrence on people with criminal mind set. Therefore, with due respect I feel that the decision of the honorable Supreme Court in this case as well as in other cases relied on require a serious reconsideration. In such cases sentence of death must be awarded and that too quickly otherwise criminals and dishonest people will have more faith and shelter in courts than law abiding honest citizens as is situation now, which need to be changed quickly.

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   October 5, 2013 at 2:20 pm
2. ca.devkumarkothari says:

   It is true that every living creature whether be a person, an animal or any plants has natural right to live and a person / citizen has fundamental constitutional right to live.
   However, if a person himself is endengering life of others and that too repeatedly, and there is no correction in his criminal attitude then his right to live must be withdrawn by way of imprisonment which means lot of curtailment of normal life and if he is not improving, then his right to live must be withdrawn in other words he must be given death sentence.

   It is true that death sentence should be exception and rare. However, where death sentence is required, it must be awarded promptly. The promptitute must start right from beginning of case – registration of complaints / FIR and framing of charges. In such cases the matter shoudl be decided within maximum of two years (even if matter reaches to the supreme court). Inordinate delay reduces impact of death punishment not only for the accused but also other criminals.

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   September 11, 2013 at 10:50 am