Death penalty only if no chance of reformation, says Supreme Court; issues notice to police officer for concealing Sundarrajan's conduct

Death penalty should be handed down to a convict only if there is no possibility of his or her reformation, the Supreme Court said on Tuesday [Sundar @ Sundarrajan vs State Rep by Inspector of Police]..A bench of Chief Justice of India DY Chandrachud and Justices Hima Kohli and PS Narasimha also stressed on the importance of taking into account the mitigating circumstances while determining whether or not there is possibility of reformation of a convict. Mitigating factors are those that may lessen the severity or culpability of a criminal act, like the background of the accused, his criminal history and conduct in jail during the period of custody/incarceration.The observations were made while commuting the death sentence awarded to one Sundarrajan, who was found guilty of kidnapping and murdering a 7-year-old boy in 2009.The judgment was passed in a review petition preferred by Sundarrajan against the top court's 2013 verdict which had upheld the death sentence.Pertinently, the Court in its judgment also issued notice to the Inspector of Police of Kammapuram Police Station in Tamil Nadu's Cuddalore for filing an affidavit before the top court concealing the conduct of the petitioner in the prison."A notice is required to be issued to the Inspector of Police, Kammapuram Police Station, Cuddalore District, State of Tamil Nadu to offer an explanation as to why action should not be taken for the filing of the affidavit dated 26 September 2021. In this case, prima facie, material information regarding the conduct of the petitioner in the prison was concealed from this Court. Accordingly, the Registry is directed to register the matter as a suo motu proceeding for contempt of court," the Court directed.Sundarrajan who was found guilty of kidnapping and murdering a 7-year-old boy in 2009. He was sentenced to death by trial court which was confirmed by all appellate courts including the Supreme Court.The convict had then filed a review petition before the top court.The Supreme Court had on March 20, 2013 dismissed the review petitions. That order was subsequently recalled in 2018 after the top court's judgment in Mohd. Arif @Ashfaq Vs. The Registrar, Supreme Court of India mandated that all review petitions involving death penalty should be heard in open court.The review petition was then heard afresh..In its judgment delivered on Tuesday, the bench took into account the fact that the convict was poor, had no prior criminal record, was suffering from hypertension and had also secured a diploma in food catering while in prison. Further, the top court also noted that courts below did not look into the data on the mitigating circumstances relating to Sundarrajan."Neither the trial court, nor the appellate courts have looked into any factors to conclusively state that the petitioner cannot be reformed or rehabilitated. In the present case, the Courts have reiterated the gruesome nature of crime to award the death penalty ... The state must equally place all material and circumstances on the record bearing on the probability of reform ... the court cannot be an indifferent by-stander in the process. The process and powers of the court may be utilised to ensure that such material is made available to it to form a just sentencing decision bearing on the probability of reform."Thus, it is not the case where there is no possibility of reformation of the murder-convict, the Court observed."Even though the crime committed by the petitioner is unquestionably grave and unpardonable, it is not appropriate to affirm the death sentence that was awarded to him. The ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal," the Court underscored..Pertinently, the top court in the instant judgment took issue with a paragraph in the earlier order dismissing the review petitions, which had said that the crime was grave since the victim was the only male child of the parents.The sex of the child alone cannot be considered an aggravating circumstance by a court, the bench emphasised."The murder of a young child is unquestionably a grievous crime and the young age of such a victim as well as the trauma that it causes for the entire family is in itself, undoubtedly, an aggravating circumstance. In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context."It, therefore, proceeded to commute the death sentence of Sundarrajan to life imprisonment.The Court, however, said that life imprisonment which is usually around 14 years behind bars, would not be proportionate in this case.It, therefore, ordered that the convict should be behind bars for a minimum of 20 years without reprieve or remission.Advocate Renjith B Marar appeared for the convict..[Read Judgment]