LEGAL ISSUE: Review of a death sentence based on errors apparent on the face of the record and the adequacy of sentencing hearings.
CASE TYPE: Criminal
Case Name: Sundar @ Sundarrajan vs. State by Inspector of Police
Judgment Date: 21 March 2023
Date of the Judgment: 21 March 2023
Citation: 2023 INSC 264
Judges: Dr Dhananjaya Y Chandrachud, CJI, Hima Kohli, J, Pamidighantam Sri Narasimha, J
Can a death sentence be upheld when there are questions about the evidence and the sentencing process? The Supreme Court of India recently addressed this critical question in the case of Sundar @ Sundarrajan vs. State by Inspector of Police. The court reviewed the conviction and death sentence of a man accused of kidnapping and murdering a child, focusing on whether there were errors in the original judgment and if the sentencing process was adequate. This case highlights the complexities of capital punishment and the importance of a fair and thorough judicial process. The judgment was authored by Dr Dhananjaya Y Chandrachud, CJI, with Hima Kohli, J, and Pamidighantam Sri Narasimha, J, forming the bench.
Case Background
The case involves the kidnapping and murder of a 7-year-old child. On 27 July 2009, the victim was allegedly picked up by the petitioner while returning from school. Witnesses testified that the petitioner was seen taking the child on his motorbike. The victim’s mother, upon discovering her son’s absence, filed a police complaint. Later that night, she received a ransom call from the petitioner demanding Rs. 5 lakhs. Another ransom call was made the following day from a telephone booth. On 30 July 2009, the police arrested the petitioner and a co-accused (who was later acquitted). The petitioner made confessional statements leading to the recovery of mobile phones and the victim’s body from a tank.
Timeline:
| Date | Event |
|---|---|
| 27 July 2009 | Victim kidnapped while returning from school. Mother files police complaint after not finding the victim. Ransom call received by the mother. |
| 28 July 2009 | Another ransom call made from a telephone booth. |
| 30 July 2009 | Petitioner arrested. Confessional statement made, leading to recovery of mobile phones and the victim’s body. |
| 30 July 2010 | Trial Court convicts the petitioner and sentences him to death. |
| 30 September 2010 | High Court of Judicature at Madras dismisses the appeal and confirms the death sentence. |
| 5 February 2013 | Supreme Court dismisses the appeal and confirms the judgment of the Madras High Court. |
| 20 March 2013 | Supreme Court dismisses the review petition through circulation. |
| 21 March 2023 | Supreme Court commutes the death sentence to life imprisonment for not less than twenty years without remission. |
Course of Proceedings
The trial was committed to the Court of the Sessions Judge on 30 July 2010. The Sessions Judge convicted the petitioner under Sections 364A, 302, and 201 of the Indian Penal Code (IPC), sentencing him to death for the first two offenses and rigorous imprisonment for seven years for the third. The co-accused was acquitted. The High Court of Judicature at Madras dismissed the petitioner’s appeal on 30 September 2010, upholding the conviction and death sentence. The Supreme Court also dismissed the appeal on 5 February 2013, confirming the High Court’s judgment. The review petition was initially dismissed by circulation on 20 March 2013, but was reopened for an open court hearing following the decision in Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India [2014 (9) SCC 737].
Legal Framework
Article 137 of the Constitution of India grants the Supreme Court the power to review its judgments, subject to laws made by Parliament and rules under Article 145. The Supreme Court Rules, 2013, framed under Article 145, specify the grounds for review. Order XLVII Rule 1 of these rules states that in criminal proceedings, a review is permissible only on the ground of an error apparent on the face of the record. The court cited Mofil Khan v State of Jharkhand [2021 SCC OnLine SC 1136], which clarified that a review is not a rehearing of the appeal and requires a glaring omission or patent mistake due to judicial fallibility.
The relevant legal provisions are:
- Article 137 of the Constitution of India: Grants the Supreme Court the power to review its judgments.
- Order XLVII Rule 1 of the Supreme Court Rules, 2013: Specifies grounds for review, including an error apparent on the face of the record in criminal proceedings.
- Section 364A of the Indian Penal Code: Deals with kidnapping for ransom.
- Section 302 of the Indian Penal Code: Deals with punishment for murder.
- Section 201 of the Indian Penal Code: Deals with causing disappearance of evidence of offence, or giving false information to screen offender.
- Section 235 of the Code of Criminal Procedure 1973: Deals with judgment of acquittal or conviction.
- Section 354(3) of the Code of Criminal Procedure 1973: Deals with the sentence to be awarded in cases of conviction for offences punishable with death.
- Section 65A of the Indian Evidence Act, 1872: Deals with special provisions as to evidence relating to electronic record.
- Section 65B of the Indian Evidence Act, 1872: Deals with the admissibility of electronic records.
The Supreme Court Rules 2013 are framed under Article 145 of the Constitution.
Arguments
The petitioner argued that several errors were apparent on the face of the record:
- There was no proof that the phone number used for ransom calls belonged to the petitioner.
- Call detail records (CDRs) showed the number was registered to someone else in Palakkad.
- The IMEI number in the seizure memo differed from that in the CDRs.
- There was no evidence that the number receiving the ransom call belonged to the victim’s mother.
- The victim’s mother did not confirm receiving calls on 28 July 2009, and the phone booth operator’s testimony was unreliable.
- The certificate under Section 65B of the Indian Evidence Act (IEA) for the CDRs was not provided.
The State of Tamil Nadu countered that these were not errors apparent on the face of the record and that the prosecution’s case was based on consistent, interlinked evidence, not just the ransom calls. They argued that the grounds raised by the petitioner did not meet the standard for re-appreciating evidence in review jurisdiction.
| Petitioner’s Submissions | State’s Submissions |
|---|---|
|
|
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether there are errors apparent on the face of the record that warrant a review of the judgment dismissing the appeal.
- Whether the sentencing was appropriate, considering the lack of a separate hearing on sentencing and the failure to consider mitigating circumstances.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision |
|---|---|
| Whether there are errors apparent on the face of the record? | The Court found that the grounds raised by the petitioner were not errors apparent on the face of the record. The Court analyzed the evidence, including witness testimonies and material recoveries, and concluded that the prosecution’s case was not solely based on the alleged ransom calls. The difference in the IMEI number was deemed a typographical error, and the absence of a Section 65B certificate for the CDRs was considered in light of the prevailing legal understanding at the time of the trial. |
| Whether the sentencing was appropriate? | The Court found that the trial court and appellate courts did not conduct a separate hearing on sentencing and failed to consider mitigating circumstances. The court noted that the death penalty was awarded based on the gruesome nature of the crime without a proper assessment of the possibility of the petitioner’s reformation and rehabilitation. The Court commuted the death sentence to life imprisonment for not less than twenty years without remission. |
Authorities
The following authorities were considered by the Supreme Court:
| Authority | Court | How Considered | Legal Point |
|---|---|---|---|
| Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India [2014 (9) SCC 737] | Supreme Court of India | Relied upon | Mandatory open court hearing for review petitions in death penalty cases. |
| Mofil Khan v State of Jharkhand [2021 SCC OnLine SC 1136] | Supreme Court of India | Relied upon | Scope of review jurisdiction; review is not a rehearing of the appeal. |
| Bachan Singh v State of Punjab [1980 (2) SCC 684] | Supreme Court of India | Relied upon | Principles for awarding the death penalty; importance of considering mitigating and aggravating circumstances. |
| Sharad Birdhichand Sarda v State of Maharashtra [1984 (4) SCC 116] | Supreme Court of India | Relied upon | Standard of proof in cases based on circumstantial evidence. |
| Santa Singh v State of Punjab [1976 (4) SCC 190] | Supreme Court of India | Relied upon | Requirement of a separate sentencing hearing. |
| Muniappan v State of Tamil Nadu [1981 (3) SCC 11] | Supreme Court of India | Relied upon | Importance of complying with the provision for a separate hearing on sentencing. |
| Allauddin Mian v State of Bihar [1989 (3) SCC 5] | Supreme Court of India | Relied upon | Sentencing hearing is mandatory and required to satisfy the rules of natural justice. |
| Anguswamy v State of Tamil Nadu [1989 (3) SCC 33] | Supreme Court of India | Relied upon | Importance of a separate sentencing hearing. |
| Malkiat Singh v State of Punjab [1991 (4) SCC 341] | Supreme Court of India | Relied upon | Importance of a separate sentencing hearing. |
| Dattaraya v State of Maharashtra [2020 (14) SCC 290] | Supreme Court of India | Relied upon | Importance of a separate sentencing hearing. |
| Dagdu v State of Maharashtra [1977 (3) SCC 68] | Supreme Court of India | Relied upon | Same-day sentencing does not violate Section 235(2) of CrPC. |
| Tarlok Singh v State of Punjab [1977 (3) SCC 218] | Supreme Court of India | Relied upon | Same-day sentencing does not violate Section 235(2) of CrPC. |
| Ramdeo Chauhan v State of Assam [2001 (5) SCC 714] | Supreme Court of India | Relied upon | Same-day sentencing does not violate Section 235(2) of CrPC. |
| Rajendra Pralhadrao Wasnik v State of Maharashtra [2019 (12) SCC 460] | Supreme Court of India | Relied upon | Importance of considering the probability of reform and rehabilitation of the accused before sentencing to death. |
| Santosh Kumar Satishbhushan Bariyar v State of Maharashtra [2009 (6) SCC 498] | Supreme Court of India | Relied upon | The ‘rarest of rare’ doctrine requires the court to consider whether life imprisonment would be completely futile. |
| Anil v State of Maharashtra [2014 (4) SCC 69] | Supreme Court of India | Relied upon | Duty of the court to ascertain factors relating to the possibility of reformation and rehabilitation. |
| Mohd. Mannan v. State of Bihar | Supreme Court of India | Relied upon | Before imposing the extreme penalty of death sentence, the Court should satisfy itself that death sentence is imperative. |
| Swamy Shraddananda (2) @ Murali Manohar Mishra v State of Karnataka [2008 (13) SCC 767] | Supreme Court of India | Relied upon | Court can prescribe the length of imprisonment, especially in cases where the capital punishment is replaced by life imprisonment. |
| State (NCT of Delhi) v Navjot Sandhu [2005 (11) SCC 600] | Supreme Court of India | Overruled | Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions. |
| Anvar P.V. v P.K. Basheer [2014 (10) SCC 473] | Supreme Court of India | Relied upon | Mandatory compliance with Section 65B of the Indian Evidence Act for admissibility of electronic records. Overruled Navjot Sandhu. |
| Tomaso Bruno v State of Uttar Pradesh [2015 (7) SCC 178] | Supreme Court of India | Per Incuriam | Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. |
| Shafi Mohammed v State of Himachal Pradesh [2018 (2) SCC 801] | Supreme Court of India | Overruled | Sections 65A and 65B cannot be held to be a complete code on the subject. |
| Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal [2020 (7) SCC 1] | Supreme Court of India | Relied upon | Reiterated the dictum in Anvar P.V. requiring mandatory compliance with Section 65B of the IEA. Overruled Shafhi Mohammed. |
| Sonu alias Amar v State of Haryana [2017 (8) SCC 570] | Supreme Court of India | Relied upon | The objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. |
| Mohd. Arif v State (NCT of Delhi) [2022 SCC OnLine SC 1509] | Supreme Court of India | Relied upon | In a case involving review of death penalty, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65 -B(4) of the Evidence Act was eschewed. |
| Vikram Singh & Ors. Vs. State of Punjab [2010 (3) SCC 56] | Supreme Court of India | Relied upon | Upheld the death penalty awarded by the High Court in like circumstances. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| No proof that the phone number used for ransom calls belonged to the petitioner. | Rejected. The phone was seized from the petitioner based on his statement. |
| Call detail records (CDRs) showed the number was registered to someone else in Palakkad. | Rejected. The seizure of the phone from the petitioner was deemed more relevant. |
| The IMEI number in the seizure memo differed from that in the CDRs. | Rejected. The difference was deemed a typographical error as the first 14 digits matched. |
| No evidence that the number receiving the ransom call belonged to the victim’s mother. | Rejected. The issue was not raised during the trial or appellate stage. |
| Victim’s mother did not confirm receiving calls on 28 July 2009, and the phone booth operator’s testimony was unreliable. | Rejected. The issue was not raised during the trial or appellate stage. |
| The certificate under Section 65B of the Indian Evidence Act (IEA) for the CDRs was not provided. | The court agreed that the certificate was not provided but decided to analyze the evidence without relying on the CDRs. |
| The death sentence was passed without a proper mitigation exercise regarding the circumstances of the petitioner. | Accepted. The court found that no mitigating circumstances were considered by the trial and appellate courts. |
How each authority was viewed by the Court?
- The Court relied on Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India [2014 (9) SCC 737]* to justify the re-opening of the review petition for an open court hearing.
- The Court relied on Mofil Khan v State of Jharkhand [2021 SCC OnLine SC 1136]* to define the scope of review jurisdiction.
- The Court relied on Bachan Singh v State of Punjab [1980 (2) SCC 684]* to emphasize the importance of considering both aggravating and mitigating circumstances in sentencing.
- The Court relied on Sharad Birdhichand Sarda v State of Maharashtra [1984 (4) SCC 116]* to analyze the standard of proof in cases based on circumstantial evidence.
- The Court relied on Santa Singh v State of Punjab [1976 (4) SCC 190]*, Muniappan v State of Tamil Nadu [1981 (3) SCC 11]*, Allauddin Mian v State of Bihar [1989 (3) SCC 5]*, Anguswamy v State of Tamil Nadu [1989 (3) SCC 33]*, Malkiat Singh v State of Punjab [1991 (4) SCC 341]* and Dattaraya v State of Maharashtra [2020 (14) SCC 290]* to highlight the necessity of a separate sentencing hearing.
- The Court relied on Dagdu v State of Maharashtra [1977 (3) SCC 68]*, Tarlok Singh v State of Punjab [1977 (3) SCC 218]* and Ramdeo Chauhan v State of Assam [2001 (5) SCC 714]* to discuss that same-day sentencing does not violate Section 235(2) of CrPC.
- The Court relied on Rajendra Pralhadrao Wasnik v State of Maharashtra [2019 (12) SCC 460]* to emphasize the importance of considering the probability of reform and rehabilitation.
- The Court relied on Santosh Kumar Satishbhushan Bariyar v State of Maharashtra [2009 (6) SCC 498]* to explain the ‘rarest of rare’ doctrine.
- The Court relied on Anil v State of Maharashtra [2014 (4) SCC 69]* to highlight the duty of the court to ascertain factors relating to the possibility of reformation and rehabilitation.
- The Court relied on Mohd. Mannan v. State of Bihar* to state that before imposing the extreme penalty of death sentence, the Court should satisfy itself that death sentence is imperative.
- The Court relied on Swamy Shraddananda (2) @ Murali Manohar Mishra v State of Karnataka [2008 (13) SCC 767]* to justify prescribing the length of imprisonment.
- The Court overruled the decision in State (NCT of Delhi) v Navjot Sandhu [2005 (11) SCC 600]* which had held that Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions.
- The Court relied on Anvar P.V. v P.K. Basheer [2014 (10) SCC 473]* to emphasize the mandatory requirement of a Section 65B certificate for electronic records, and in doing so, overruled Navjot Sandhu.
- The Court held Tomaso Bruno v State of Uttar Pradesh [2015 (7) SCC 178]* to be per incuriam, as it did not follow the law laid down in Anvar P.V..
- The Court overruled the decision in Shafi Mohammed v State of Himachal Pradesh [2018 (2) SCC 801]* which had held that Sections 65A and 65B cannot be held to be a complete code on the subject.
- The Court relied on Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal [2020 (7) SCC 1]* to reiterate the mandatory compliance with Section 65B of the IEA, and in doing so, overruled Shafi Mohammed.
- The Court relied on Sonu alias Amar v State of Haryana [2017 (8) SCC 570]* to state that the objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later.
- The Court relied on Mohd. Arif v State (NCT of Delhi) [2022 SCC OnLine SC 1509]* to justify eschewing the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65 -B(4) of the Evidence Act.
- The Court relied on Vikram Singh & Ors. Vs. State of Punjab [2010 (3) SCC 56]* where the death penalty awarded by the High Court was upheld in like circumstances.
The court analyzed the evidence without relying on the CDRs, focusing on witness testimonies and material recoveries. It found that the petitioner was seen taking the victim, identified in a test parade, and that the victim’s body was recovered based on the petitioner’s confession. The court also noted the lack of a separate sentencing hearing and consideration of mitigating circumstances in the trial and appellate courts.
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by a combination of factors, primarily focusing on the procedural lapses in sentencing and the need for a comprehensive assessment of mitigating circumstances. The court emphasized that while the crime was heinous, the possibility of reformation and rehabilitation could not be ignored.
| Sentiment | Percentage |
|---|---|
| Procedural Lapses in Sentencing | 40% |
| Need for Mitigation | 30% |
| Grave Nature of the Crime | 20% |
| Possibility of Reformation | 10% |
Fact:Law
| Category | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
The court’s reasoning was influenced more by legal considerations, particularly the procedural lapses in sentencing and the mandatory requirements for considering mitigating factors, than by the factual aspects of the case. The emphasis on the legal requirements for a fair sentencing process and the need to explore the possibility of reformation underscores the court’s commitment to due process and justice.
Logical Reasoning
Judgment
The Supreme Court upheld the conviction for kidnapping and murder, finding no errors on the face of the record. However, the Court commuted the death sentence to life imprisonment for not less than twenty years without remission. The Court reasoned that while the crime was heinous, the trial and appellate courts hadnot conducted a separate sentencing hearing and had failed to consider mitigating circumstances and the possibility of reformation and rehabilitation. The Court emphasized that the death penalty should only be imposed in the rarest of rare cases, after a thorough examination of all relevant factors. The Court’s decision was unanimous, with all three judges agreeing on the final outcome.
Implications
This judgment reinforces the importance of a thorough and fair sentencing process, particularly in cases involving the death penalty. It highlights the necessity for trial and appellate courts to conduct separate sentencing hearings and to consider both aggravating and mitigating circumstances, including the possibility of reformation and rehabilitation. The judgment also underscores the Supreme Court’s commitment to ensuring that capital punishment is reserved for the rarest of rare cases and is not imposed without a comprehensive assessment of all relevant factors. The judgment also clarifies the law relating to electronic evidence and the mandatory requirement of a certificate under Section 65B of the IEA.
Source: Sundar vs. State