Through the judgment of the case –Dnyaneshwar Suresh Borkar v. State of Maharashtra delivered on February 20, 2019, a 3-judge bench of the Supreme Court, consisting of Justice A.K. Sikri, Justice S. Abdul Nazeer and Justice Justice M.R.Shah, the human face of Indian Judiciary is on full display.
The Court took into consideration the appellant-convict’s inclination for reformation, gathered from his poems written in jail, for commuting the death sentence to him into life imprisonment in appeal. The capital sentence was confirmed by the Bombay High Court.
In support of its decision, the apex-Court has pointed out several mitigating circumstances including that:
- That at the time of the commission of offence the accused was 22 years of age;
- That by now, he has spent 18 years in jail;
- That while in jail, his conduct is good;
- That the accused has tried to join society and has tried to become a civilized man and has completed his graduation in B.A. from jail. He has tried to become reformative; (e) from the poems written by him in the jail, it appears that he has realized his mistake which was committed by him at the time when he was of young age and that he is reformative; therefore, the appellant can be reformed and rehabilitated.
In these details, the Court has seen the possibility that the accused would not commit similar criminal acts. That the accused would not be a continuing threat to society. Considering these facts and circumstances of the case and applying the law laid down by the apex court in the case of Sunil v. State of Madhya Pradesh (2017) 4 SCC 393, the Court is of the opinion that in the facts and circumstances of the case, the decision of capital punishment is not warranted.
The Court considered each of the circumstances and the crime as well as the facts leading to the commission of the crime by the accused. Though the Court acknowledges the gravity of the offence, it is unable to satisfy itself that this case would fall in the category of ‘rarest of rare’ case warranting the death sentence.
The offence committed, undoubtedly, can be said to be brutal, but does not warrant a death sentence. It is required to be noted that the accused was not a previous convict or a professional killer. At the time of the commission of offence, he was 22 years of age. His conduct in jail is also reported to be good.
Considering these mitigating circumstances and the decision of this Court in Bachan Singh vs State of Punjab (1980) 2 SCC 684 as well as another decision of this Court in Shyam Singh alias Bhima v. State of Madhya Pradesh (2017) 11 SCC 265 and the decision of this Court in Sunil’s case, according to the Court, it will be in the interest of justice to commute the death sentence to life imprisonment.
Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Bombay High Court on May 5, 2006, in Confirmation Case 1/2005 with Criminal Appeal 618/2005, whereby the HC has allowed the Confirmation case filed by the State and dismissed the appeal by the accused confirming his conviction for the offences punishable under section 302 of the IPC and confirmed the death sentence awarded by the Sessions Court, the accused Borkar has preferred this appeal.
The Sessions Court convicted him for having killed a minor child, Rishikesh and sentenced him to death, after trying him for the offences under sections 302, 364 and section 201 read with section 34 of the IPC. The conviction and sentence were confirmed by the HC and that led to the filing of this appeal.
At the outset, it has been noted that the appellant’s senior counsel, Anand Grover has “fairly stated” and conceded that so far as the conviction is concerned, the appellant is not challenging the same. However, he has prayed to commute the capital punishment imposed by the Sessions Court and confirmed by the HC. Therefore, the present appeal was now restricted to the death sentence imposed by the Addl. Sessions Judge and confirmed by the HC.
Advocate Grover pointed out the mitigating circumstances which warrant the commutation of the death sentence to life imprisonment. It was vehemently submitted by him that the accused, at the time of the crime, was of 22 to 23 years of age. That he neither had a criminal record nor was he a hardened criminal. That he was a student studying in a college without any history or misdemeanor noted in the college or in the village of his residence. That he has a widowed mother and he is the eldest child.
By now he has undergone 18 years of sentence without remission and with remission, it would be 23 and half years. The Court was informed that his conduct in jail was very good. His conduct and behavior in jail have shown that though the appellant may have committed a crime when he was a young adult, he has used his years spent in jail to reflect on his actions and learned from his mistakes.
The Supreme Court has noted that the appellant is by no means a hardened criminal and most definitely not beyond the pale of reformation. Besides completing his education as B.A., he has also undergone training in Gandhian thoughts undertaken by Gandhi Research Foundation, Jalgaon. The poems written by him in jail reflect his current state of mind and by which it can be said that he has realized his mistake committed by him when he was just 22 years of age and that he is reformative.
After hearing the parties, the Court has voiced its opinion that, in the facts and circumstances of the case, capital punishment is not warranted. Striking the balance between the aggravating and mitigating circumstances, the Court is of the opinion that mitigating circumstances are in favour of the accused while commuting the death sentence to life imprisonment. The Supreme Court has allowed this appeal in part. The conviction of the accused for the offences under sections 302, 364 and section 201 read with section 34 of the IPC is confirmed. However, the Court commuted the death sentence to life imprisonment.
The Court has left it open to the accused to apply for remission to the State Govt., which may be considered in accordance with law and on its own merits.
