Nirbhaya: “No attribution of individual role with respect to use of iron rod”, Amicus Raju Ramachandran

Amicus Curiae Raju Ramachandran made his second round of submissions yesterday in the 2012 Delhi gang rape case..In his submissions yesterday, Ramachandran dealt with the substantive aspects regarding imposition of death penalty. His submissions yesterday were centred on the non-consideration of “mitigating circumstances”, particularly, the “circumstances of the criminal” in sentencing the convicts..He placed extensive reliance on the cases of Bachan Singh and Machhi Singh stating that the court must consider both, the crime and the criminal, and that due weightage should be given to the mitigating factors as enunciated in Bachan Singh..As per his written submissions,.“The Court, while disagreeing with the enunciation in Ediga Anamma v. State of Andhra Pradesh (1974) 4 SCC 443 that with the insertion of Section 354(3) the focus has now completely shifted from the crime to the criminal, held that the court must pay due regard both to the crime and the criminal and that the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case”..Relying on Machhi Singh, he argued that mitigating circumstances should be accorded full weightage and a just balance should be struck between the aggravating and the mitigating circumstances..Another argument advanced by Ramachandran was that while aggravating circumstances are a matter of trial, evidence and conviction and can get buttressed by material on record, mitigating circumstances rests solely on arguments. According to him, there was a failure in the present case to adequately enquire, apply and reason the mitigating circumstances..“The resultant imbalance is a serious violation of the doctrine of fairness and reasonableness enshrined in Article 14 of the Constitution of India….The Trial Court and the High Court failed to pay due regard to the mitigating factors argued in favour of the accused by merely reflecting those on the mirror of the grievous crime. The correct approach, as spelt out by Bachan Singh, is to adopt a liberal and expansive approach to the mitigating factors, and then consider whether the case fell within the rarest of rare category.”.One of the most important arguments made by Ramachandran was with regard to the iron rod and its use in the crime. He submitted that the use of rod was was a crucial consideration in convicting the accused under section 302 and also in determining the brutality of the crime; yet there was no attribution of individual role with respect to the use of the iron rod..“Assuming, without conceding, that the determination of sentence for all the accused could have been considered collectively, even the one mitigating circumstance that was on record in their favour – that there was no attribution of individual role with respect to the use of the iron rod – was not considered by the Trial Court or the High Court in the sentencing process. It may be pertinent to note that the use of the iron rod was a crucial consideration in convicting the accused under section 302 and also in determining the brutality of the crime.”.During the last hearing, Ramachandran had dealt with the procedural aspects pertaining to sentencing arguing that failure to comply with the procedure violated rights under Articles 14 and 21..The hearing in the case will continue on November 15..Read the written submissions below: