Within a day of each other, the Bombay High Court and the Supreme Court passed judgments in cases both dealing with heinous crimes and involving the death penalty..Earlier today, the Supreme Court passed a 429-page judgment confirming the death penalty for the four accused in the Nirbhaya case. And just yesterday, the Bombay High Court pronounced an equally detailed judgment in a horrific incident that occurred during the Godhra riots of 2002..The difference between the two is that the 430-page High Court ruling did not award the death penalty to the accused..Although the two cases involve very different facts and circumstances, it is interesting to go into why the courts differed in their award of sentence..The Bombay High Court case involved the murder of fourteen persons and rape of four women of the Muslim community during the Godhra riots..Even though the High Court’s Justices VK Tahilramani and Mridula Bhatkar took note that the incident involved a “rare massacre manifesting ugly animosity and hostility”, they saw it fit to dismiss an appeal by the CBI seeking enhancement of the life sentence imposed on the accused..Counsel for CBI Hiten Venegavkar had insisted that death penalty be awarded to the accused in this case, relying on the Supreme Court decisions in Sevaka Perumal & Anr. v. State of Tamil Nadu and Dhananjoy Chatterjee alias Dhana vs. State of West Bengal..However, the Bench held,.“On comparing the present case with the facts of the case of Sevaka Perumal (supra) and Dhananjoy Chatterjee (supra), it can be safely said that there is no repetition of crime in the present case so also the accused before this Court are not history-sheeters or hard-core criminals..From the clinching evidence placed before us and discussed earlier, we are convinced that all these accused persons in a mob on account of the Godhra incident were moving in search of Muslims. They were boiling with revenge. It was an unlawful assembly of the 12 accused and some more unidentified persons. As soon as they saw the Muslims, they pounced upon them, assaulted them and also raped some women….…We do agree that the crime is uncommon and a large number of persons from the Muslim community were murdered, however, the sentencing policy is also required to be balanced on the scale of proportionality.”.Further, the Court held that the fact that there were lacunae in the prosecutrix’s testimony, did not warrant the enhancement of sentence..“…though the prosecutrix was present at the scene of the incident, she does not state that accused Nos. 1 and 2 murdered any of the persons in her group, nor does she say that accused Nos. 1 and 2 raped…”.Also, the fact that fifteen years had passed since the commission of the crime, was also a factor considered by the Court..“We also cannot be unmindful of the fact that the incident occurred in 2002, fifteen years have elapsed since then. These accused have been in custody all this while. Looking to this fact, after a gap of 15 years, we are not inclined to enhance the sentence.”.The Supreme Court, on the other hand, upheld the Delhi High Court’s judgment awarding the death penalty for the four accused in the December 2012 gang rape..Apart from holding the incident had “shocked the collective conscience of society”, the Bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan also held that the aggravating circumstances outweighed the mitigating factors..“The mitigating factors which have been highlighted before us on the basis of the affidavits filed by the appellants pertain to the strata to which they belong, the aged parents, marital status and the young children and the suffering they would go through and the calamities they would face in case of affirmation of sentence, their conduct while they are in custody and the reformative path they have chosen and their transformation and the possibility of reformation. That apart, emphasis has been laid on their young age and rehabilitation.”.After going into the grisly details of the case, the court held,.“When we cautiously, consciously and anxiously weigh the aggravating circumstances and the mitigating factors, we are compelled to arrive at the singular conclusion that the aggravating circumstances outweigh the mitigating circumstances now brought on record.”.That the courts have differed on the issue is a reflection of their recent outlook on the award of the death penalty. In fact, if you look at the Supreme Court alone, there seems to be no consensus..A study by NLU Delhi’s Centre on the Death Penalty showed that out of seven criminal appeals in death penalty cases that were decided by the Supreme Court in 2016, none were confirmed..Moreover, this article demonstrates how a future Chief Justice of India has been trying to change the apex court’s outlook on awarding the death sentence. And quite recently, a Bench of Justices PC Ghose and Madan Lokur held that death penalty breaches the reformative theory of punishment under criminal law..So it would be fair to say that the Nirbhaya judgment denotes a slight deviation from the Supreme Court’s recent trends..Or would it?.Just this week, a Bench of Justices Dipak Misra, Rohinton Nariman and UU Lalit dismissed a review petition in a case where the appellant was awarded the death penalty for raping a four-year-old girl..It is just another example of how the Court cannot be seen as one whole, but a sum of its individual component judges..Read the Bombay HC judgment:.Image taken from here.