Summary
A man convicted of kidnapping a seven-year-old boy for ransom in 2009 and murdering him was sentenced to death, confirmed up to the Supreme Court; his review, dismissed by circulation, was reheard in open court under Mohd. Arif. A three-Judge Bench found no error apparent: even eschewing uncertified call records, eyewitnesses, identification and recoveries established guilt, and lingering doubt has no place in circumstantial cases. But no separate sentencing hearing was held and no court examined mitigating circumstances or reform; given his youth, clean record and conduct in jail, the death sentence was commuted to life imprisonment of not less than twenty years without remission, and suo motu contempt was initiated against a police officer whose affidavit concealed an escape attempt.
Issues
- Whether grounds concerning the ownership of the phone used for ransom calls, a discrepancy in the IMEI number and the absence of a certificate under Section 65B of the Evidence Act disclose any error apparent on the face of the record warranting review of the conviction.
- Whether a death sentence can be sustained where neither the trial court held a separate sentencing hearing nor any court considered mitigating circumstances or the probability of reformation, and what sentence is proportionate on commutation.
- Whether the sex of a murdered child can be treated as an aggravating circumstance.
Provisions considered
- Article 137 read with Order XLVII Rule 1 of the Supreme Court Rules, 2013, Constitution of IndiaReview in criminal matters lies only for an error apparent on the face of the record; following Mohd. Arif, review petitions in death cases must be heard in open court, and this petition dismissed by circulation was accordingly reheard. (¶¶ 1, 2, 8, 15, 16, 17)
- Section 65B, Indian Evidence Act, 1872A certificate is mandatory under Anvar P.V. as affirmed in Arjun Panditrao Khotkar; though the trial preceded Anvar P.V. and Sonu would bar a belated objection to the mode of proof, following Mohd. Arif v. State the Court eschewed the uncertified call detail records because a death sentence was involved, and found the remaining evidence sufficient. (¶¶ 27, 33, 37, 38, 39, 42, 44, 45, 46, 52)
- Sections 235(2) and 354(3), Code of Criminal Procedure, 1973The accused is entitled to a meaningful, real and effective pre-sentence hearing at which the circumstances of the criminal, not only the crime, are considered; the trial court held no separate hearing and awarded death on the gravity of the crime alone, and the appellate courts noted only that no mitigating circumstances were pointed out. (¶¶ 62, 63, 64, 66, 69, 70, 71, 72, 73, 74)
- Sections 364A, 302 and 201, Indian Penal Code, 1860Convictions for kidnapping for ransom, murder and causing disappearance of evidence upheld; the death sentence commuted to a fixed-term life sentence. (¶¶ 12, 54, 94)
- Section 106, Indian Evidence Act, 1872Once kidnapping was established and the accused produced nothing to show the child's release from his custody, the burden of explaining the child's fate lay on him, as held in the appeal. (¶ 50)
Held
- The seizure of the phone with the SIM used for the ransom calls on the petitioner's statement answers the plea that the number was not his; the difference in only the last digit of the fifteen-digit IMEI, which is a check digit computed from the first fourteen, is a typographical error identifying the same device; objections about the mother's number and the second call were belated. Two eyewitnesses saw the petitioner take the child, identified him at a properly held parade, and the body, school bag and phones were recovered on his statement, so even without the call records guilt is not in doubt and no error apparent exists. (¶¶ 20, 22, 23, 24, 25, 26, 47, 48, 51, 52, 53, 54)
- Following Shatrughna Baban Meshram, the theory of residual or lingering doubt has no place in a case based on circumstantial evidence once the chain is found complete, and the Court in appeal had already applied the Sharad Birdhichand Sarda standard; the evidence will not be reassessed in review. (¶¶ 57, 58, 59, 60)
- The sex of a murdered child cannot in itself be an aggravating circumstance; the young age of the victim and the family's trauma are aggravating whether the child is male or female, and courts must avoid remarks furthering the notion that only a male child carries the family lineage or supports parents in old age. (¶ 75)
- Bachan Singh, Bariyar, Rajendra Wasnik, Anil and Mofil Khan require the court to enquire into the probability of reform before imposing death, the State to place material on the convict's conduct and the court not to remain a bystander even if the accused is silent; no such enquiry occurred at any stage. The petitioner was 23 at the time of the offence, had no antecedents, has been in custody since 2009 with satisfactory conduct apart from a 2013 escape attempt, suffers from hypertension and obtained a catering diploma in jail, so reformation cannot be ruled out and death is not warranted, though following Swamy Shraddananda ordinary life imprisonment with remission would be inadequate for so gruesome a crime. (¶¶ 76, 77, 78, 79, 80, 81, 86, 88, 89, 90, 91, 92, 93)
- The affidavit of the Sub-Inspector stating that the petitioner's jail conduct was satisfactory omitted the prison superintendent's report of an escape attempt in 2013; non-disclosure of material facts misleads the Court and interferes with the administration of justice, so suo motu contempt proceedings are initiated against the Inspector of Police, Kammapuram. (¶¶ 83, 84, 85, 95)
Result
Review petitions disposed of; conviction under Sections 364A, 302 and 201 IPC not interfered with; death sentence commuted to life imprisonment for not less than twenty years without reprieve or remission; Registry directed to register a suo motu contempt proceeding against the Inspector of Police, Kammapuram Police Station, Cuddalore District for the affidavit dated 26 September 2021 concealing the petitioner's attempt to escape from prison.