Supreme Court Modifies Death Sentence in Child Rape and Murder Case: Nand Kishore vs. State of Madhya Pradesh (2019)

Introduction

Date of the Judgment: January 18, 2019

Citation: 2019 INSC 38

Judges: S.A. Bobde, J., L. Nageswara Rao, J., R. Subhash Reddy, J.

Can a death sentence be upheld when the conviction is based primarily on circumstantial evidence, and the socio-economic background of the accused and possibility of reformation are not considered? The Supreme Court of India addressed this critical question in the case of Nand Kishore vs. State of Madhya Pradesh. This case involved the rape and murder of a minor girl, where the trial court and High Court had imposed the death penalty. The Supreme Court, however, modified the sentence, emphasizing the need for special reasons to justify a death sentence. The judgment was delivered by a three-judge bench comprising Justices S.A. Bobde, L. Nageswara Rao, and R. Subhash Reddy, with Justice R. Subhash Reddy authoring the opinion.

Case Background

On February 3, 2013, a minor girl, approximately 8 years old, went to a ‘Mela’ (fair) with her younger brother, Chhunu. The prosecution alleged that the appellant, Nand Kishore, then aged about 50 years, took the girl away from the fair, raped, and murdered her. The girl’s father, Narendra, filed a police complaint when his daughter did not return home. During the investigation, Amit Mourya informed the police that he had seen a dog running away with a child’s leg in its mouth. The police later found the headless body of the deceased in bushes near ‘Dushera Maidan’, Bhopal. The left leg of the deceased was found at a distance of 100 ft, and both legs were fractured. There were severe injuries on her private parts, resulting in her intestines protruding. The police recorded a statement from the appellant and recovered blood-stained clothes and articles used in the crime from his house. The appellant was subsequently charged under Sections 363, 366, 376(2)(i), and 302 of the Indian Penal Code (IPC), and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.

Timeline

Course of Proceedings

The trial court convicted the appellant for rape and murder, imposing the death sentence, stating that the crime was “heinous and barbaric” and fell within the category of ‘rarest of rare’ cases. The trial court also convicted and sentenced the appellant for offences under Sections 363, 366, and 376(2)(i) of the IPC. The trial court referred the death sentence to the High Court for confirmation as required under Section 366 of the Code of Criminal Procedure (Cr.PC). The appellant filed an appeal in the High Court challenging the conviction and sentence. The High Court dismissed the appeal and affirmed the death sentence on June 25, 2013.

Legal Framework

The case involves several sections of the Indian Penal Code (IPC) and the Code of Criminal Procedure (Cr.PC).

✓ Section 302 of the IPC: This section defines the punishment for murder. It states, “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

✓ Section 363 of the IPC: This section defines the punishment for kidnapping. It states, “Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

✓ Section 366 of the IPC: This section defines the punishment for kidnapping or abducting a woman to compel her marriage. It states, “Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or by abuse of authority or any other method of compulsion, induces any woman to go from any place, with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, shall also be punishable under this section.”

✓ Section 376(2)(i) of the IPC: This section defines the punishment for rape. It states, “Whoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.”

✓ Section 354(3) of the Cr.PC: This section deals with the imposition of the death penalty. It states, “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”

✓ Section 366 of the Cr.PC: This section deals with the procedure for submitting a death sentence for confirmation by the High Court. It states, “When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.”

✓ Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012: These sections deal with aggravated penetrative sexual assault and its punishment.

Arguments

Appellant’s Arguments:

• The appellant’s counsel argued that the conviction was based on circumstantial evidence, which was insufficient to prove guilt beyond a reasonable doubt.
• They contended that the prosecution failed to prove the concept of ‘last seen’ effectively.
• It was argued that the trial court and High Court erred in imposing the death sentence without considering mitigating circumstances.
• The appellant’s counsel submitted that the sentence was illegal and contrary to Sections 235(2) and 354(3) of the Cr.PC, as the courts did not examine relevant considerations of legislative policy.
• They highlighted that the trial court and the appellate court focused solely on the barbaric nature of the crime rather than considering the circumstances of the criminal.
• The counsel emphasized that mitigating circumstances, such as the socio-economic background of the appellant, lack of criminal antecedents, and possibility of reform, were not considered.
• It was also brought to the Court’s attention that the local Bar Association of Bhopal had refused to represent the appellant, and he was unrepresented until the framing of the charges.

State’s Arguments:

• The State’s counsel argued that the circumstantial evidence was sufficient and consistent to prove the appellant’s guilt.
• They stated that PW-4, the brother of the deceased, identified the accused as the person with whom the deceased was last seen.
• They emphasized that PW-4 also identified the accused in the Test Identification Parade.
• The State’s counsel highlighted that PW-7 testified to seeing the accused in the company of the minor girl at 9 p.m. on February 3, 2013.
• They argued that the oral evidence, combined with the forensic and medical evidence, supported the trial court’s findings.
• The State contended that the crime was heinous and barbaric, falling within the category of ‘rarest of rare’ cases, justifying the death penalty.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the issues addressed can be summarized as follows:

1. Whether the circumstantial evidence was sufficient to convict the appellant beyond a reasonable doubt.
2. Whether the death penalty was appropriately imposed, considering the requirements of Section 354(3) of the Cr.PC and the principles laid down in Bachan Singh v. State of Punjab.
3. Whether the trial court and High Court properly considered the mitigating circumstances in the case.

The Court also considered the sub-issue of whether the appellant was denied proper legal assistance.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• Bachan Singh v. State of Punjab, (1980) 2 SCC 684 – Supreme Court of India: This case established the principle that life imprisonment is the rule and death sentence is an exception. The Court emphasized that the focus should be on the circumstances of both the crime and the criminal.
• Swamy Shradhananda(2) v. State of Karnataka, (2008) 13 SCC 767 – Supreme Court of India: In this case, the Court substituted the death sentence with life imprisonment, directing that the accused not be released from prison for the rest of his life. The Court discussed the need to expand sentencing options beyond the binary of 14 years’ imprisonment and death.
• Neel Kumar v. State of Haryana, (2012) 5 SCC 766 – Supreme Court of India: This case involved the rape and murder of a minor, where the Court modified the death sentence to life imprisonment with a minimum of 30 years without remission.
• Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573 – Supreme Court of India: The Court set aside the death sentence and directed that the appellant serve a minimum period of 20 years, including remissions earned.
• Selvam v. State, (2014) 12 SCC 274 – Supreme Court of India: This case involved the murder and rape of a child, where the Court imposed a sentence of 30 years in jail without remission.
• Tattu Lodhi v. State of Madhya Pradesh, (2016) 9 SCC 675 – Supreme Court of India: This case involved the kidnapping of a minor girl, where the Court modified the death sentence to life imprisonment with a direction not to release the accused until he completed 25 years.
• Raj Kumar v. State of Madhya Pradesh, (2014) 5 SCC 353 – Supreme Court of India: The Court modified the death sentence to life imprisonment, directing the appellant to serve a minimum of 35 years without remission.
• Anil v. State of Maharashtra, (2014) 4 SCC 69 – Supreme Court of India: In a case involving the murder of a 10-year-old boy, the Court held that incarceration for 30 years without remission was adequate punishment instead of the death sentence.
• Mukesh & Anr. v. State (NCT of Delhi) & Ors., (2017) 6 SCC 1 – Supreme Court of India: This case, known as the Nirbhaya case, involved gang rape and murder. The Court distinguished this case from the present one, noting that Mukesh was involved in other criminal activities on the same night and there were eye witnesses to the incident.

Legal Provisions:

• Section 354(3) of the Cr.PC: This provision requires the court to state special reasons for imposing the death sentence.
• Section 235(2) of the Cr.PC: This provision deals with the sentencing procedure after a conviction.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Court relied on the principles laid down in Bachan Singh v. State of Punjab to emphasize that the death penalty should be an exception and not the rule. The Court also relied on Swamy Shradhananda(2) v. State of Karnataka and other similar cases to modify the death sentence to life imprisonment with a fixed term without remission. The Court distinguished the facts of the present case from Mukesh & Anr. v. State (NCT of Delhi) & Ors., noting that the latter involved gang rape, murder, and other criminal activities. The Court also emphasized that special reasons were not recorded by the trial court and High Court as required under Section 354(3) of the Cr.PC.

What weighed in the mind of the Court?

The Supreme Court’s decision to modify the death sentence was primarily influenced by several factors:

• The nature of the evidence: The Court acknowledged that the conviction was based on circumstantial evidence.
• The lack of special reasons for death penalty: The Court noted that the trial court and High Court failed to record special reasons as required by Section 354(3) of the Cr.PC.
• The socio-economic background of the accused: The Court considered the appellant’s background as a manhole worker and his age (50 years).
• The possibility of reformation: The Court noted that the lower courts did not record a finding that there was no possibility of reformation of the appellant.
• The denial of proper legal assistance: The Court noted that the appellant was unrepresented until the framing of charges.
• The principle of ‘rarest of rare’ cases: The Court held that the case did not fall within the ‘rarest of rare’ category, which is required to impose the death penalty.

Sentiment Analysis of Reasons Given by the Supreme Court:

Ratio Table: Fact vs. Law

Logical Reasoning:

The Court considered the alternative interpretation that the crime was heinous and barbaric, and therefore, the death penalty was justified. However, this interpretation was rejected because the court felt that the case did not fall within the ‘rarest of rare’ category, and the mitigating factors were not considered. The Court also emphasized that the trial court and High Court did not record special reasons as required under Section 354(3) of the Cr.PC.

The Supreme Court’s decision was that, while the conviction was upheld, the death sentence was not justified. The Court modified the sentence to life imprisonment with a fixed term of 25 years without remission. This decision was based on the principle that the death penalty should be an exception and not the rule, and that mitigating factors should be considered. The Court also emphasized the need for special reasons to justify the death penalty as required under Section 354(3) of the Cr.PC.

The Court stated, “Taking into account the evidence on record and the totality of the circumstances of the case, and by applying the test on the touchstone of case law discussed above, we are of the view that the case on hand will not fall within the ‘rarest of rare’ cases.”

The Court also observed, “We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused.”

The Court further stated, “In that view of the matter, we are of the view that the death sentence imposed by the trial court, as confirmed by the High Court, requires modification.”

Key Takeaways

• The Supreme Court emphasized that the death penalty should be an exception and not the rule, and should only be imposed in the ‘rarest of rare’ cases.
• Courts must consider mitigating circumstances, such as the socio-economic background of the accused, lack of criminal antecedents, and possibility of reform, before imposing the death penalty.
• Special reasons must be recorded for imposing the death penalty, as required under Section 354(3) of the Cr.PC.
• The focus of the court should be on both the circumstances of the crime and the criminal.
• The judgment reinforces the principle that life imprisonment is the rule and death sentence is an exception.

Directions

The Supreme Court directed that the sentence be modified to life imprisonment with an actual period of 25 years, without any benefit of remission. It was also clarified that the sentences imposed for all offenses shall run concurrently.

Development of Law

The ratio decidendi of this case is that the death penalty should only be imposed in the ‘rarest of rare’ cases, and only after considering all mitigating circumstances and recording special reasons as required under Section 354(3) of the Cr.PC. This judgment reinforces the principle that life imprisonment is the rule and death sentence is an exception. It also highlights the importance of considering the socio-economic background of the accused and the possibility of reformation. This case does not change the previous position of law but rather reinforces the existing principles and provides clarity on their application.

Conclusion

In the case of Nand Kishore vs. State of Madhya Pradesh, the Supreme Court modified the death sentence imposed by the trial court and affirmed by the High Court to life imprisonment with a fixed term of 25 years without remission. The Court emphasized that the death penalty should be an exception and not the rule, and should only be imposed in the ‘rarest of rare’ cases. The Court also highlighted the need to consider mitigating circumstances and record special reasons for imposing the death penalty. This judgment reinforces the principles laid down in previous cases and provides guidance on the application of the death penalty in cases of child rape and murder.