SC Acquits Six Men to Whom It Had Given Death Sentence in 2009

The SC found that evidence against the murder- and rape-accused which could have helped their case, was withheld.

In a decision that could have major ramifications for the debate over the death penalty in India, the Supreme Court on Tuesday, 5 March, acquitted six men who had been sentenced to death for rape and murder – and whose death sentences had previously been confirmed by the Supreme Court itself in 2009 and on review in 2010.

Writing on behalf of himself and Justices AK Sikri and Abdul Nazeer, Justice MR Shah held that “there was no fair and honest investigation and even prosecution tried to suppress the material fact[s] from the court.”

In addition to the acquittals, the judges directed the State of Maharashtra (which prosecuted the men) to pay Rs 5 lakh to each of the accused as compensation, in light of how they “lost valuable years of their life in jail” and the suffering of their families.

They also directed the Chief Secretary of the State to enquire into the case and identify the “erring officers/officials responsible” for failing to catch the real culprits.

The Prosecution Case

• The six men on death row were Ankush Maruti Shinde, Rajya Appa Shinde, Ambadas Laxman Shinde, Raju Mhasu Shinde, Bapu Appa Shinde and Surya alias Suresh.
• They had been accused of murdering five members of a family on the night of 5 June 2003 after breaking into their hut, including a minor girl who was raped before being killed. They were also accused of raping an adult woman of the family, who had survived along with one of her sons.
• An FIR was registered on the complaint of the son, who became Prosecution Witness 1 (PW1). The woman was designated as Prosecution Witness 8 (PW8) and her statement was also taken by the investigating officer. The police collected items from the family home as evidence and examined 25 witnesses.
• The accused belong to a nomadic community which frequents the area; five were arrested in June 2003 itself, while one was arrested in October 2004. PW1 identified all six of them, while PW8 identified five of them as the ones who committed the crimes.

• All six accused denied having committed any offence.

How the Case Originally Progressed in the Courts

TRIAL COURT AND BOMBAY HIGH COURT (2006-2007)

• On 12 June 2006, the trial court convicted all six men of rape, murder and other offences, and sentenced all six of them to death.
• The accused filed an appeal before the Bombay High Court. During cross-examination of witnesses, it came out that PW8 had identified four different people as the persons who committed the crimes from photographs shown to her by the police. This happened at a time when it was unclear if she would survive, and was recorded as a “dying declaration”.
• However, this information was not provided to the accused or the trial court, who argued that this showed the prosecution was not fair because it had suppressed/withheld information from the courts.
• The high court ignored this argument since they held the statement where PW8 identified the accused could not be considered a dying declaration, since she had survived. As a result, the High Court considered the statement inadmissible as evidence.
• On 22 March 2007, the high court confirmed the death sentence for three of the accused, and commuted it to life imprisonment for the other three, who were acquitted of the rape charges.

SUPREME COURT (2009)

• The accused all filed appeals against the high court judgment in the Supreme Court, and the State of Maharashtra also appealed against the decision to commute the death sentence for three of them.
• A Supreme Court bench of Justices Arijit Pasayat and M Sharma dismissed the appeals of all the accused, and confirmed the death sentence for all of them, even the ones whose sentences had been commuted by the high court.
• Justice Pasayat found that the murders were “not only cruel, brutal but were diabolic.” He found that the ‘rarest of rare’ test for giving the death penalty was satisfied, and said all six accused were involved in the crimes and so had to be convicted.

How the Case was Brought Back to the Supreme Court

• In 2010, the review petitions filed by three accused were dismissed by the Supreme Court. This would have left them with no more avenues to appeal to the courts, with their only hope being pardons by the Governor of Maharashtra or the President of India.

• However, in 2014, the other three accused (whose life sentences had been changed to death penalty by the SC) were able to successfully file a review petition in the apex court. This was because the 2009 decision of the Supreme Court had relied on an old decision of the court which had wrongly interpreted the test of ‘rarest of rare’. As result, the Supreme Court agreed to reconsider the case for these three accused.
• In October 2018, the Supreme Court recalled the 2009 judgment for all the accused, noting that some of them hadn’t been provided adequate legal representation. The appeals against the Bombay High Court judgment were then reheard by the judges, resulting in Tuesday’s judgment.
• The Supreme Court’s new decision found that there were serious problems with the evidence against the accused in the case. There was no forensic evidence or any other evidence apart from the statements of PW1 and PW8, which meant that their evidence needed to be “of a very high quality and satisfy the higher burden of proof.”
• However, there were issues with PW1 and PW8’s identification of the accused, from their failure to describe them when giving their initial statements, to the delay in conducting the identification parade, as well as several inconsistencies over which of them had committed which actions.
• There was insufficient light at the crime scene, and the accused didn’t speak Hindi as PW1 and PW8 alleged. None of the property the accused allegedly stole from the victims was recovered from the accused either.
• PW8’s testimony was found to be unreliable because of inconsistencies and omissions, as well as the controversy over her identifying four other people as the ones who’d committed the crimes in her ‘dying declaration’. Though this couldn’t be considered a valid dying declaration (which has strong evidentiary value), it could still be used to corroborate or contradict other evidence – and this further weakened PW8’s version of events.

Why This Case Could be Significant

The judgment of the court could have far-reaching consequences because it was a complete U-turn on the decision originally taken by the Supreme Court itself 10 years ago. It has also brought to light how decisions taken by the Supreme Court could be grossly wrong on law and facts, which can be rectified in many cases, but not when a person has been executed.

The legal error made by Justice Pasayat in the 2009 decision had been made in six other cases, and there was a significant issue with contrasting death penalty decisions during his tenure from 2001 to 2009. Justice Pasayat gained a reputation for awarding the death penalty in cases where other judges would not, and he holds the record for the number of death sentences confirmed: 23.

This case also featured lack of legal representation, possible scapegoating of a members of a disadvantaged community, and withholding of evidence. These features make it a textbook case in terms of the main arguments against the death penalty: that it is arbitrary, stacked against the poor and marginalised, and is inappropriate in a system where legal aid isn’t up to the mark and prosecutions are deliberately unfair.

It will be interesting therefore to see if this case is cited in future judgments and studies on the death penalty in India, and whether this will add to the Law Commission’s existing recommendations to abolish the death penalty for non-terror offences.