Reality Check India

Mulla Vs State of UP, Poverty, Death March, and Justice

Posted in Uncategorized by realitycheck on February 9, 2010

Today the Supreme Court overturned the death penalty for two people citing a mitigating factor of poverty. This is huge because it applies the poverty mitigating factor to a crime in a way that leaves a lot of open questions.

I finished reading the judgment available at http://judis.nic.in/supremecourt/helddis3.aspx or at http://indiankanoon.org/doc/1277706/ Lets analyze the case for the impatient reader who doesn’t do legal prose.

The crime

1. Let me setup up the scene  :

On the fateful night of 21.12.1995 when Shiv Ratan,Nanhakey, Ram Kishore and Sushil were irrigating their fields in the northern side of the village from the tubewell of Sundari, widow of Jai Narain, at about 8.30 p.m., eight miscreants armed with guns reached the spot. A boy and two girls were also with them. All the miscreants caught hold of the four persons who were irrigating their fields and enquired about their properties and made a demand of Rs.10,000/- each and threatened that otherwise they would be killed. At the very moment, Harnam, Ganga Dai,Chhotakey s/o Gaya Ram and Hari Kumar Tripathi who were returning home after irrigating their fields were also stopped by the miscreants demanding Rs.10,000/- each from them. When all of them expressed their inability to pay the money, the miscreants assaulted Sushil, Shiv Ratan and Harnam by butt of the gun and took away Hari Kumar Tripathi, Nanhakey, Ram Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai towards western side of tubewell ..

2. The captors now have 5 people (including 1 woman) and the rest are back at the village scrambling. What happened next ?

At about 25 mts. away from the tubewell in the sugar cane field of Laltu, the dead body of Hari Kumar Tripathi was recovered and the dead bodies of Nanhakey, Ram Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai were found in the Arhar field at a distance of 1 km. from the tubewell. After recovery of …

3. All  five captors were killed by  cutting their throats. One killed nearby and the others marched for 1 km before being killed elsewhere.

A typical autopsy report on the 5 killed

Incised wound 9 cm. x 2 cm. x bone deep just above adamis apple (Thyroid cartied) trachea, nerves, blood vessels of both sides divided along with other tissues oseophagus also cut.

The guilt

The judges quickly dismiss the arguments regarding the identification parade uphold the guilt of the culprits. They then get down to the sentencing. This is where the two mitigating factors come in.

1. Circumstances of the crime

The judges layout the following examples as evil :

Commission of murder

when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward

Lets revisit the case. One thing strikes me is that there was a DEATH MARCH.  That this is one of the most horrific experiences is recognized the world over.

First, one person (Hari Kumar Tripathi) was killed in full view of the others – (see evidence of Witness No 4), then the others were made to walk for one kilometer in the darkness until they were killed and dumped in a pond.

A strong case can be made that this is rarest of the rare – surely on par with burning a house. Of course, each person has a threshold but death marches are exceptionally evil. The victims suffered unspeakable horror between the first persons death and their own.

2. Circumstances of the offender (this very concept is highly controversial at least to me)

But even with the courts own yardstick there are some discrepancies.

No material was placed or available about the family background of these two accused and whether these persons are married or not and about the family circumstance etc.

..

Admittedly, prosecution has not placed any other material about their criminal antecedents.

..

along with the aggravating circumstances, it falls on us to point to the mitigating circumstances in the case. In this case, we observe three factors which we must take into account,

1) the length of the incarceration already undergone by the convicts;

2) the current age of the convicts; and finally,

3) circumstances of the convicts generally.

As much as we may find this jarring, this still does not call for alarm. The economic argument is laid out here.

Therefore, we believe, socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances. Socio-economic factors lead us to another related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to note that a criminal who commits crimes due to his economic backwardness is most likely to reform. This court on many previous occasions has held that this ability to reform amount to a mitigating factor in cases of death penalty.

Page 58

This is alarming due to the following :

1. Poverty is relative. Were the hapless victims poorer than the attackers ?

2. Obviously they were not desperately poor. (a) they did not negotiate for lesser (b) they had guns and cartridges, which are not cheap – which if they were dirt poor they would have sold and had a meal instead.

3.  Back to the relative-ness of poverty.

Everything else remaining the same, had the killers not been poor, then the death penalty would be upheld.

4. No evidence to suggest that the poor have a better reform rate. Even if they did, the question of relative poverty is still open.

Where does this leave us ? Obviously, now “not poor” needs to be debated upon in this country.  It is clear in this case the victims were not even able to cough up Rs 10,000 to save their lives. This was 1995.

On both circumstantial counts the culprits got lucky.

  • Circumstances of crime : Ghastly death march. Victims endured terror after first person killed and the 1Km march until they too were killed. Rarest of rare.
  • Circumstances of poverty : No evidence to suggest killers who possessed guns (which I believe costs 10,000 Rs even for basic models) were poorer than the victims. The court itself says the culprits appeared to have no family responsibility.

3. Death penalty and reality of life term in India

Anti-capital punishment activists will of course ape the west and celebrate this while conveniently ignoring the reality of a life term in India.

Here we like to note that the punishment of life sentence in this case must extend to their full life, subject  to any remission by the Government for good reasons.

(emp added)

In this case of cold blooded murder featuring a ghastly death march, the killers could in a best case scenario walk out in 20 years (6 more to go 14 served). The political class willing.

Quite a landmark case in India. The media just gave it a miss.

Read Barbarindians for more. Some technical coverage on the legal blog (lawandotherthings)

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10 Responses

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  1. Barbarindian said, on February 10, 2010 at 5:13 am

    Read your comment on my blog, was planning to do a follow up post. Yeah, that’s a bummer, there is no direct link to the judgment text, but I guess meta sites will have the stuff.

    Two other things stand out: first, this Mulla person was from a place called Mohmadpur. Second,

    17) It is relevant to point out that just prior to the incident the very same accused, that is, Mulla and Guddu set fire to her house and took her to the forest. She was in the custody of miscreants for 10-12 days. It is true that at one stage she complained that they attempted to rape

    This shows that these perps are history sheeters, probably did many such crimes in the past and quite likely have political protection. There are hundreds of thousands of prisoners rotting away without being tried, are we to believe the SC suddenly pulled up this case out of a hat and became all goofy?

    I will still do another follow up post. This judgment depresses me no end. Another alarming fact is that on TOI, most readers seemed to cheer the judgment, apparently rich people like Rathode getting away and poor innocent souls like Mulla et Guddu is a grave injustice. Well, I have news for these folks, now people like Rathode will suddenly start becoming destitute and escape sentences with even greater ease.

    • rc said, on February 10, 2010 at 6:17 am

      Ditto – This case angered me like nothing has recently.

      The freaks who cheer on the TOI site represent the kind of human capital available in India. However, it is possible to transform them.

      It is childs play to build on this in a future application of social mitigating factor.

      It is also true that the courts tenure in life terms end after 14 years (20 years in this case because 14 would mean they can get out now). This judgment lays another brick on this.

      When I started this blog, I saw the court as the last embankment holding back the waters bravely.

      Now my view after reading tons of judgments and closely following the level of activism, the open caste hatred, the desire to usurp, the silence of the legal community in analyzing judgments (maybe out of fear or out of caste based insecurity):

      Maybe the butler did it !

  2. rc said, on February 10, 2010 at 6:36 am

    The biggest hole in India is the absolute lack of commentary on legal affairs. Understandable nervousness among professionals about ground rules and acute awareness of caste are the reasons perhaps.

  3. […] and ponder: Reality Check India’s Mulla Vs State of UP, Poverty, Death March, and Justice and Barabarindian’s Justice gets a Secular angle. Just read the ‘brutality’ of the […]

  4. Hayley Schleich said, on December 18, 2010 at 7:31 am

    You completed certain good points there. I did a search on the theme and found most persons will agree with your blog.

  5. […] there is the case of Mulla vs UP, where poverty was stated as a mitigating factor in overturning the death penalty.  What this […]

  6. blah said, on April 10, 2013 at 1:49 pm

    Should have consulted a lawyer, or at least a law student, before posting this.
    Firstly, life imprisonment is the rule, and death penalty is the exception. So if the judges, for any reason (including poverty), fail to see reason for this exception to apply, life imprisonment shall be given.
    Secondly, the question is not of reform as the alternative punishment is life and hence technically there is to be no more interaction with the society. What the court means is that the state of mind and reason for committing the crime are essential elements to be determined. Would you ont say that a murder for murders sake is worse than a murder for bread?
    Thirdly and for the second point, life imprisonment does not mean 14 years, or 20 years. It means imprisonment for life. you can read this to clarify that http://www.thehindu.com/news/national/life-imprisonment-means-jail-term-for-entire-life-sc/article4133231.ece
    The reduction of sentence is something to do with the government and hence cannot be taken into consideration while giving a judgement.
    Fourthly, on the point of relative poverty, any simple reading on criminal procedure in India will tell you that a criminal case is a matter related to the ‘accused’ and has hardly anything to do with the ‘victim’.
    The point about a gun costing at least Rs. 10000 is something ridiculous. You dont even know what gun they had. If you can assume that it was work 10k, then can I assume they borrowed the gun? Can i maybe assume it was a cheap india ‘katta’? You should not question the court ON the finding that the accused were poor and can/should only question it on whether poverty can be a mitigating factor. All you points regarding that thing I think i have already rebutted.

  7. rc2 said, on April 11, 2013 at 2:26 am

    > Should have consulted a lawyer, or at least a law student, before posting this.
    Cmon, Thats an old one 🙂

    You should go back and read the blog.

    You are educating me about the sentencing guidelines that EXIST.
    I am calling for RE-EXAMINING the sentencing guidelines and take a hard look at chucking out poverty as a mitigating factor.

    Once again, you = telling me what exists. me = pushing for change.

    Nowhere am I saying that the judges misapplied the guidelines, I am saying the guideline itself needs wider debate. It is perfectly legitimate for any citizen of India (including a lawyer) to debate this. Otherwise, all laws and codes will be cast in stone for perpetuity or captured by the handful of elites who are allowed to talk about it.

    As for the crux of the matter. I am against poverty as a mitigating factor for the following reasons.

    1. If poverty is a mitigating factor, wealth can be viewed as an aggravating factor.

    2. The traditional mitigating factors 1. Duress, 2. Mental state, 3. Minor participation can also cover the poverty angle. If you were so hungry and destitute that it had a temporary “impairing” of your mental faculty, that would be acceptable. So you would have to maket the connection to one of the other, well known mitigating factors.

    3. In India, the criminal sentencing procedure may be about accused only – as it should be. However a questin of relative poverty must necessarily bring in the status of the victim. In this case, the victims could not cough up 10,000 Rs to save their lives .

    4. As mentioned in blog, there is no evidence that poor reform better. I think there is a study that shows the absolutely wretched – those whose faculties are impaired due to prolonged malnutrition do turn around – if their basic survival needs are met.

    You are welcome to continue commenting here.

  8. rc2 said, on April 11, 2013 at 2:46 am

    > The point about a gun costing at least Rs. 10000 is something ridiculous. You dont even know what gun they had. If you can assume that it was work 10k, then can I assume they borrowed the gun?

    Read the blog and judgment again.

    Never said the gun cost Rs 10,000. Where did you get that?

  9. blah said, on April 12, 2013 at 9:50 pm

    Sorry, yes I read something wrong about the 10,000 there
    But my point still stands. The fact that they had a gun or a cartridge doesnt prove that they were not poor and whatever your ideological issues with the Supreme Court, I think you cannot (not even should not, CAN NOT) question its finding that they accused were poor..

    Moving on then,
    Before this case, (or even after, as this precedent is yet to be applied in any case) there was no concept of poverty as a mitigating circumstance. So get this straight first. You = existing sentencing principles concerning poverty, The judges = pushing for change.

    Should I assume that you accept my points about the length of a life imprisonment and about life imprisonment being the norm? Because you havent responded to either I think

    If you somewhere, in you struggle for change, have proposed that we move from the norm of life sentence to a norm of death sentence, although i couldnt see this point very clearly, then you should first do some reading on the death sentence itself. Here then, if you make such claim, I shall call for the re-examining of sentencing policy as we know it and ask for the abolition of death penalty itself. See, that is my stand point. But Im willing to argue from within what exists.

    Moving on again,
    Ill explain why poverty as a mitigating factor makes sense. The basic understand of a ‘state’ also carries with it responsibility to provide for the basic needs of the subjects of such a state. While, as Ive told you before, I do not believe in giving the power to the state to take a life, if such a power is given then should it not be contingent on that responsibility that the state has? I mean, if the state is to take care of poverty, ideologically, and if it cannot, realistically, the essentially that must have effect on the judgement if that poverty was, in whatever little way, a cause for the action you are punishing a person for. Simply put, if the state itself is, in a twisted, indirect way, responsible for murder, then can it kill somebody for it.
    Here it is important to remember that the alternative is not letting the accused free. nor even asking for him to be introduced into the society again. It is life imprisonment.

    Poverty as mitigating factor DOES NOT mean weath as an aggravating factor. It only would mean lack of availability of this mitigating factor if you were wealthy.

    Old age and period of imprisonment are other mitigating factors already present which do not fall under your traditional mitigating factors understanding btw.

    Relative poverty also doesnt apply. Would you change your stance if this man had murdered Ambani, who for some foolish and unimportant reason refused them the money? Clearly the victims feature nowhere in the sentencing region of a trial. Nowhere. This is a part dedicated to the accused alone and for good reason.

    There might be no evidence, tangible to prove that poor reform better and I have not even claimed there is, but there has been study and evidence to show that it is somehow the poor who face the ‘phanda’ always. Pray tell me why this should happen then? The rich have a way around the law already. It is not a bad thing if, only in cases where the poverty has a bearing on the actions of a man, not even all cases of poverty, we reduce a sentence of death to life.


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