17, Jun 2016

Credit:AFP, Sam Panthaky

UPDATE:

Today, June 17 is the day that final judgement will be delivered in the Gulberg Society Massacre. Witness Survivors have filed detailed Written Arguments making a strong case for life sentence. The advocates for the survivors, backed by Citizens for Justice and Peace (CJP) have also ,ade out a strong case for Compensation under Section 357 of the Code of Criminal Procedure. After June 2, when Judge PB Desai first declared that a total of 24 persons have been convicted and that the charge of conspiracy not accepted, there were three further dates when detailed arguments, largely on behalf of the accused (for reduction of sentence) took place. SM Vohra with Salim Shaikh argued strongly for a strong life term for all accused and also submitted written arguments.

Despite falling into the Rarest of the Rare Category, Victim Survivors, in written arguments to be submitted in Court on June 6, press for complete Life Imprisonment and also make out a strong Case for Compensation

Asked by Special Judge, P.B. Desai to make written submissions on quantum of punishment to be given to the accused, advocates for the victim survivors of the Gulberg carnage have argued for a full life term imprisonment for all accused and compensation awards under section 357 of the Code of Criminal Procedure. A copy of the written submissions can be read here.

A team of lawyers for the Mumbai-based Citizens for Justice and Peace (CJP) spent the entire weekend preparing the written arguments based on recent jurisprudences into the issue. A slew of judgements of India’s Supreme Court has deliberated in detail the question, holding in several cases that even in the rarest of the rate, most gruesome and pre-meditated crimes, death penalty should not be the automatic choice.

On June 2, Special Judge PB Desai had convicted 25 persons out of the total 66 accused; 11 for offences related to murder (section 302), 436 (arson) and illegal assembly (149) and another 14 for attempt to murder (Section 307) and other offences. Four of the accused convicted have been in custody for 14 years, another four for 12 and 8 years each while 17 of the accused have been out of bail. A Table on with details on this can be read here:

Gulberg Case: Details of Accused Held Guilty by Judge PB Desai

In the application the victim survivors have argued that:
“The accused who have been convicted of offences other than under S. 302 also need to be imposed punishment which is the maximum under the provisions under which they have been convicted.

The accused were part of a mob which admittedly was carrying out mayhem, well armed and with pre-determination to cause harm, injury and death, for more than 5 hours. They are bound to have known that an attack on the Society will, in all likelihood lead to murder(s).

They have also been found guilty of burning and destroying houses (Section 436 of the Indian Penal Code) the normal consequence of which would be death of persons who were residing there or who tried to run out. Therefore in view of the judgments in (please cite the above three cases) these are aggravating circumstances and deserve to be dealt with no leniency whatsoever.

Besides, in the application the witness survivors have argued that even for offences under Section 436 (Mischief by fire or explosive substance with intent to destroy house, etc.) there are provisions in the law for punishment of imprisonment for life. As far as being convicted under Section 149 (illegal assembly) is concerned the Supreme Court has often held that the very act and common intent of being in such an illegal assembly, armed and with criminal intent is sufficient to be considered a grave offence.

Section 357 of the CRPC, reads:
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case

The argument that even though the crime falls under rarest of the rare, punishment should be life was dealt with in detail in this judgement in 2015. For example in para 53 of the recent 2015 Judgement, (Vishal Yadav v/s State of UP, the Court has held that:
“53. The Supreme Court observed that principles of deterrence and retribution are the cornerstones of sentencing in (1994) 2 SCC 220, Dhananjoy Chatterjee Vs. State of West Bengal and (1996) 6 SCC 241, Gentela Vijayavandhan Rao v. State of Andhara Pradesh. It was also observed that these principles also cannot be categorised as right or wrong as much depends upon the belief of the judges. The court extracted the following portion of the decision of the Supreme Court in (2006) 2 SCC 359, Shailash Jasvantbhai v. State of Gujarat :

―7. xxx xxx 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 cornerstone of the edifice of “order”should meet the challenges confronting the society. xxx xxx Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other Crl.A.Nos.910, 741, 958/2008, Crl.Rev.P.No.369/2008, Crl.A.Nos.1322/2011 & 145/2012 pg. 30 attending circumstances are relevant facts which would enter into the area of consideration.‖ (Underlining by us) Death sentence jurisprudence – divergence in views The discussion on this subject is being considered under the following sub-headings:

63. In this evaluation of the jurisprudence, it is essential to note the pronouncement of the Supreme Court reported at (2013) 5 SCC 546, Shankar Kisanrao Khade v. State of Maharashtra in which the appellant, a man of 52 years, had been convicted for murder and strangulation of an 11 year old minor girl with intellectual disability after repeated rape and sodomy. Despite the satisfaction of the crime test, the criminal test and the rarest of rare case test, the court was of the view that the extreme sentence of death penalty was not warranted. The court therefore, directed the life sentence awarded for rape and murder to run consecutively.”

Credit: Sabrangindia https://sabrangindia.in/article/gulberg-sentence-survivors-say-life-over-death