Restorative justice to be balanced with retributive justice: Supreme Court

ON Tuesday, a Supreme Court bench division bench comprising Justices Uday Umesh Lalit, S. Ravindra Bhat, and Bela M. Trivedi, in the case of Mohd. Firoz vs. State of Madhya Pradesh, relied on one of the important principles of restorative justice, that is, to allow a chance for the offender "to become a socially responsible individual" when they have served their punishment, to commute the death sentence of an offender.

The court in this case was hearing a Criminal Appeal against the Madhya Pradesh High Court's judgment that confirmed the death sentence of the appellant-accused Firoz, passed by the Sessions Court at Seoni, for offences punishable under Sections 363 (punishment for kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage, etc.), 376(2)(i) (repealed in 2018), 376(2)(m) (punishment for rape), and 302 (punishment for murder) of Indian Penal Code [IPC], and Sections 5(i) and 5(m) (aggravated penetrative sexual assault) read with Section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offence Act, 2012.

In paragraph 22 of the judgment, the Supreme Court relied on the "five golden principles" with regard to the appreciation of evidence when the case of the prosecution hinges on the circumstantial evidence laid down in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (1984). These principles are:

"The following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" … Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Further, the court, in paragraph 23, relied on the observation by the Supreme Court, made in Mohan Singh vs. Prem Singh & Anr. (2002), to address the issue of inculpatory and exculpatory statements of the accused made under Section 313 of the Criminal Procedure Code (CrPC), wherein such a statement made under section 313 was not considered a substantial part of the evidence. In paragraph 24, the Court concluded, "…though the conviction of the appellant-accused could not be made merely on his admission of the circumstance of his visit to the house of the informant on the previous day evening of the fateful day, such admission could certainly be taken aid of to lend assurance to the evidence of the prosecution".

In discerning the doctrine of "last seen together", the Court, relying on the judgments of Rajendra @ Rajesh @ Raju vs. State (NCT of Delhi) (2019), Satpal vs. State of Haryana (2018), and Surajdeo Mahto vs. The State of Bihar (2021), observed, "it hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts…, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him".

On the contention of a fair trial, the Court, in its paragraph 33, relied on the decision in the case of Maneka Gandhi vs. Union of India (1978), and observed, "…while expediting the trial, it is imperative on the Court to see that the due procedure is followed during the course of trial". It concluded that the due process, by the trial court, was indeed followed. Notably, in paragraph 35, it further observed, "[i]n the overzealous approach to protect the rights of the accused, the rights of the victim who is the most aggrieved should not be undermined or neglected".

On the basis of the above, the Supreme Court affirmed the conviction of the appellant-accused was rightfully convicted, since "the prosecution had proved beyond reasonable doubt all the circumstances individually and also proved the circumstances forming a chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the appellant-accused".

The Court relied on directions in the matter of mitigating factors and commuting of a death sentence, laid in the cases of Bachan Singh vs. State of Punjab (1980), Macchi Singh vs. State of Punjab (1983), and Shatrughna Baban Meshram vs. State of Maharashtra (2021). In its paragraph 39, the Court observed, "the case on hand could not be said to be the "rarest of rare case", where the question of awarding lesser punishment than the death penalty is totally foreclosed".

Thus, while affirming the order of conviction of the High Court, the Supreme Court commuted the death sentence awarded to Firoz for the offence under section 302 of the IPC for a sentence of life imprisonment, and imposed a sentence of twenty years' imprisonment on him for the offence punishable under Section 376A (punishment for causing death or resulting in permanent vegetative state of victim) of the IPC instead of the maximum punishment of life imprisonment under the section. It observed: "The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC".

Click here to view the Supreme Court's judgment.