Yakub Memon and Brady Violation

Death sentence to a terrorist.

Yakub Memon is a convicted terrorist (for killing 257 people and injuring three times more) and is scheduled to be hanged on 30 July 2015, since his last petition to Supreme Court of India, by way of curative petition has been dismissed. It is not surprising because by very nature remedy of curative petition is to correct or cure a mistake or injustice. However what is appalling is discovery of new facts as revealed by a former intelligence officer. According to these revelations (published in indian express newspaper) Memon is a flipper. He was in conspiracy with Pakistan, for terrorist attack but for the sake of his family’s safety he agreed to flip. Continue reading

Harsh Sentence

Duty of courts to impose appropriate sentence

Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encourage the criminal and in the ultimate making, justice suffer by weakening the system’s credibility.
In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminal. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. [Dhananjoy Chatterjee @ Dhana versus State of West Bengal, 1994 (2) SCC 220: 1994 SCR (1) 37]

The problem is that these observations are read and used to give harsh sentences and not for reduced or liberal sentences. For offence of causing one slap or 20 slaps, the sentence is same as there is no guideline in India unlike other countries.

Temporary Insanity

Death Sentence

Conviction for murder of wife, three minor children and two neighbors. Question is about Death Sentence. Defence of temporary psychotic disorder was not accepted by court due to manner of commission of crime which disclosed premeditation and absence of any immediate provocation:

It has been clearly revealed from the evidences adduced in the case that the appellant was in his house with his wife, mother and three minor children. There is no evidence that there was any altercation between the husband and wife either immediately or shortly before the commission of murder of wife and three innocent minor children of the appellant. From the evidence it clearly transpires that the appellant in a cool and calculated manner wanted to kill the wife and three minor children while they were asleep and had no occasions to give any resistance whatsoever. It is also revealed from the evidence that he was fully determined to commit the crime of murder and was conscious of the nature of the crime being committed by him. Precisely for the said reason, when his mother wanted to prevent him from committing such heinous crime he even did not spare his mother and also injured her with the axe in an attempt to kill her also. There is no evidence that the appellant was found in a confused state of mind. On the contrary, it transpires from the evidence that he silently went to the neighbour’s house and attempted to kill Smt. Galal who was also asleep. It appears to us that in a cool and calculated manner the appellant wanted to kill Smt. Galal who being asleep was not capable of giving any resistance. It is also quite apparent that the appellant being conscious of the enormity of the crime committed by him, wanted to flee away from the place of occurrence and when the poor old man Gulabji came on his way and enquired as to what had happened, he immediately hacked Gulabji to death in an extremely brutal manner and thereafter fled away from the place of occurrence and tried to hide himself. Such facts, in our view, clearly indicate that the appellant committed all the said heinous crimes in a conscious state of mind and in a calculated manner. Hence, case of temporary psychic disorder  cannot be accepted in the facts and circumstances of the case.
In our view, in the facts of the case, it has been very clearly established that the appellant has committed one of the most heinous crimes by killing his poor wife who was in advanced stage of pregnancy and three minor children for no fault on their part. The appellant had a solemn duty to protect them and to maintain them but he has betrayed the trust reposed on him in a very cruel and calculated manner without any provocation whatsoever. The appellant did not even spare his mother who very rightly tried to prevent him from committing such unpardonable crime. The appellant also attacked his mother with the axe which he had used to kill his wife and minor children and caused injuries on her person with an intention to kill her. The brutality and cruelty with which the crimes have been perpetrated cannot but shock the conscience of the society. After killing the wife and three minor children and injuring the mother he did not become remorseful and desist from committing any further crime. But like a blood thirsty demon, in a cool and calculated manner he went to one of the neighbour’s house and attempted to kill the wife of the neighbour while she was asleep and as such utterly helpless to give any resistance. When in his attempt to flee away from the place of occurrence, the poor old Gulabji came on his way, the appellant did not hesitate to kill him in extremely brutal manner before the eyes of his wife. All the said heinous crimes were committed without any provocation. The appellant was not even remorseful after the said incident of successive five murders and attempt to kill two others including the appellant’s mother. The appellant did not go to see the ailing mother injured by him and did not also attend the funeral of his wife and even his three innocent minor children. The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to end be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society’s cry for justice against the criminal. In our view, if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance. We, therefore, do not find any justification to commute the death penalty to imprisonment for life.

Full Judgement:  [Ravji @ Ram Chandra vs State Of Rajasthan, 1996 AIR SC 787, 1996 SCC (2) 175 (on 5 December, 1995)]

Sentencing in case of Rioting

Considerations for sentencing

Reliance upon deterrence theory:

“There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This is an imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity.” R v BLACKSHAW AND ORS [2011] EWCA Crim 2312.

Is any sentence of imprisonment is compensatory. Reformation in Prison? The above reason for harsh punishment is no reason at all. In such cases even people who were induced by temporary greed are lured to pick things up. They cannot always be distinguished from those who started riot.

Webbe vs. R. v [2001] EWCA Crim 1217 02 May 2001

Considerations for Sentence for theft or Burglaries

Deliberations for sentencing:

“Either with a record of offences of dishonesty, or who engages in sophisticated law breaking, will attract a custodial sentence. It is in relation to the length of that sentence that the aggravating and mitigating features which we have earlier identified will come into play, as will the personal mitigation of the offender, who may appropriately, in accordance with Ollerenshaw [1991] 1 Cr App RS 65, be dealt with by a somewhat shorter sentence than might, at first blush, otherwise have seemed appropriate.”
“in relation to more serious offences, there will be some for which a sentence within the range of 12 months to 4 years will be appropriate and there will be others for which a sentence of considerably more than 4 years, up to the maximum, may be appropriate. In this regard, the factors to be taken into consideration will include whether an offence is committed in the context of a business, whether the offender is acting as an organiser or distributor of the proceeds of crime and whether the offender has made himself available to other criminals as willing to handle the proceeds of thefts or burglaries.” (See:  Webbe & Ors, R. v [2001] EWCA Crim 1217 02 May 2001.)