Kerala High Court appoints mitigation investigators in two death penalty cases - Attingal murder and Dalit law student murder

The Kerala High Court recently ordered mitigation studies into the death sentence references of Nino Mathew who was convicted in the Attingal twin murder case and of Muhammed Ameer-ul-Islam who was convicted in the Dalit law student murder case [State of Kerala v Nino Mathew; State of Kerala v. Muhammed Ameer-ul-Islam].The Court appointed two mitigation investigators associated with Project 39A, a research and legal aid centre at the National Law University, Delhi to assist the court with the process of sentencing, particularly to arrive at a conclusion on whether the cases warrant death penalty for the convicts. The two convicts were sentenced to death by trial courts and their appeals against their conviction and sentence, as well as the references to confirm their death sentence, are currently pending before the High Court.The decision to impose a sentence, whether death or otherwise, is usually taken after and order of conviction is issued.Even at the appellate stage, it is after the conviction is confirmed or altered that the question of sentence is entered into.Usually, mitigating circumstances in death sentence cases are considered after the persons are convicted, or after their conviction is confirmed by the appellate court. However, in this case, a division bench of Justices Alexander Thomas and C Jayachandran ordered the commencement of mitigation studies for Mathew and Ameer-ul-Islam even before the hearing of their appeals had begun.This would be one of the first such instance of a High Court ordering mitigation studies before hearing the appeal."At the trial stage, there cannot be any two opinions that mitigation studies, etc., can be contemplated only after the conviction is arrived at and at the commencement of the sentencing process. Where such meaningful opportunity for mitigation studies have not been rendered by the trial court, then the appellate court has an obligation and duty to ensure that steps in that regard may be taken so that the obligation of the judicial organ to provide meaningful opportunity of hearing at the sentencing stage, as envisaged in Sec.235(2) of the CrPC, is endeavoured to be fulfilled", the Bench said..The Bench noted that if mitigation studies are conducted only after the conviction is affirmed by the appellate court, then then will be a lot of unnecessary delay in the administration of justice."This will lead to the position that the convict, who was awarded death sentence by the trial court, will face more anxious and agonizing time, and for all purposes, he may experience a “Damocles' sword hanging over his head”, guessing with great tension, as to whether the death sentence awarded by the trial court will be confirmed by the High Court or would be commuted to life sentence," the Bench explained..The two cases placed before the Bench were to confirm the death sentence awarded to Nino Mathew, who was convicted by a trial court in the 2014 twin murder case in Kerala's Attingal, and to confirm the death sentence awarded to Muhammed Ameer-ul-Islam by a trial court for the rape and murder of a Dalit law student of the Ernakulam Government Law College, in 2016..During one of the previous hearings, the Bench had noted that mitigating circumstances in death penalty cases is a developing area in its infancy, and that Project 39A is a pioneering agency in research into the subject.It had, therefore, directed the amici curiae appointed in two death sentence references, advocates Saipooja and Mitha Sudhindran, to consult with Project 39A on the issues in conducting mitigation studies. .In its detailed order, the Bench noted that the Supreme Court in various pending cases, as well as the Bombay High Court, has consistently taken a view that it would be helpful in every way if assessment of mitigating circumstances is made in advance, before the hearing stage. Moreover, in those cases too, Project 39A had been appointed to make independent assessments..Further, from a reading of the trial courts' orders in the Attingal and law student murder cases, the Bench noted that it broadly indicated that the trial courts may not have conducted any proper mitigation study in that case, except hearing the versions of the accused.However, the Bench said that there is no point in critiquing the approach of the trial courts since they may not be equipped to enter into a detailed mitigation investigation, even in murder cases."So, it is the duty of this Court, as the head of the State Judiciary to carry forward the perspectives and approaches taken by the Apex Court in cases of this nature, so that the appropriate legal culture is evolved and the same can be imbibed by the Session Courts at the District Judiciary level, etc. Even in these cases, now there is some resistance, as the approach in these perspectives is seen as novel," the Bench opined.It said that it is important to undertake mitigation studies at the earliest in order to to avoid unduly protracting the proceedings at the appellate stage and to ensure that the studies are conducted in a comprehensive manner. The Bench added that even if the conviction is set aside after hearing the appeals, it cannot be said that the mitigation studies were a waste of time and money."The courts in exercise of the sovereign judicial powers as well as the State executive organ in exercise of its sovereign executive powers and all other executive authorities concerned have an obligation to ensure that death penalty is awarded only in the rarest of rare cases and if it is established convincingly that the option of alternate life sentence is unquestionably foreclosed so as to necessarily warrant the imposition of death penalty, as enunciated in the celebrated decision of the Constitution Bench in Bachan Singh's case supra. Therefore, for providing such meaningful and effective opportunity of hearing, if such mitigation studies are conducted in advance, the same is in fulfillment of the duties, functions and obligations of the courts in exercise of its sovereign judicial powers," the Bench explained..Another pertinent aspect on which the Bench focused was that whatever reports come out of the mitigation studies ought to be kept with the registry of the Court and that the judges ought not be allowed to view it so as to eradicate the possibility of bias while hearing the appeals."Such reports shall be filed by the prosecution before this Court, in a sealed cover and the same is not to be perused by the Judges, till the issue of conviction is decided in these Appeals. However, copies of such reports shall be served on the respective Advocates appearing for each of the 2 convicts in these cases and the convicts will have the liberty to produce materials in rebuttal of any such adverse aspects pointed out by the prosecution in their reports," the order stated..In line with these observations, the Bench issued various directions in the two death sentences references before it. The order of the Court includes appointment of persons associated with Project 39A to conduct mitigation studies, directions to all concerned authorities to cooperate with the studies, directions to ensure confidentiality of the findings on various factors, directions to the State to ensure psychiatric assessment of Mathew and Ameer-ul-Islam, etc..Amici curiea advocates Saipooja and Mitha Sudhindran assisted the Court.Advocate Renjith B Marar who appeared before the Supreme Court in the death penalty case of Sundar @ Sundarrajan v. State by Inspector of Police, (which was relied upon by the High Court) also assisted the Court. Advocate Sasthamangalam S Ajithkumar appeared for one of the appellants and advocates TB Hood and NK Unnikrishnan were the prosecutors in the two cases..[Read Order]