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