KOCHI: Offering a glimmer of hope to eight convicts on death row, currently confined to the dark rooms of central prisons in the state, the Kerala High Court has ordered a mitigation investigation before determining their ultimate fate. The eight include two former police officers convicted in a custodial murder case and a former CPM local leader.
Earlier, the court had ordered a similar investigation in the cases of Nino Mathew and Muhammed Ameerul Islam, who were convicted in the 2014 Attingal twin murder case and the Perumbavoor Jisha murder case, respectively. However, when the petitions of the eight convicts came up for hearing, the state government opposed the move to extend the benefit of earlier orders to them. The court has entrusted the mitigation probe with Project 39A, a New Delhi-based research centre focused on human rights.
The court issued the order on the petitions filed by Rejith, Anil Kumar alias Jacky, Ajith Kumar, Gireesh Kumar, former police officers K Jithakumar and S V Sreekumar, former CPM leader R Byju, and Narendra Kumar.
Rejith was convicted for the murder of a four-and-a-half-year-old girl at Chottanikkara in 2013, while Anil Kumar and Ajith were sentenced to death for the murder of criminal Santhosh Kumar alias Jet Santhosh in Thiruvananthapuram in 2004.
State expresses concern over outside agency conducting investigation
Jithakumar and Sreekumar were awarded capital punishment for the murder of Udayakumar in police custody at the Fort police station, Thiruvananthapuram. Gireesh Kumar was found guilty in the Alice Varghese murder case in Kundara in 2013. Byju was sentenced to death in connection with the murder of a Congress ward president in Alappuzha, while Narendra Kumar, a native of Firozabad in Uttar Pradesh, was convicted for murdering Lalason and his wife and son at Parambuzha, Kottayam, in 2015.
When the petitions came up for hearing, the government opposed the move saying that conducting a mitigation study before hearing the Death Sentence References (DSRs) and the appeals challenging conviction and sentence on merits is beyond the scope and ambit of section 366 of CrPC and, thus, impermissible. The state also expressed its deep concern in entrusting the mitigation investigation with an outside agency like Project 39A’. The government is of the view that the agency is propagating the idea of abolishing death penalty and that an institution connected to the government would be more appropriate.
The counsels for the convicts argued that the death sentences in all the cases were passed without a proper mitigation exercise regarding the circumstances of the convicts, and as such the court is obliged and duty-bound to do such an exercise.
While ordering a mitigation investigation, the division bench said mitigating factors, in general, seek to explain the surrounding circumstances of the criminal to enable the court to decide between death penalty or life imprisonment. There is a mandate for a full-fledged bifurcated hearing and recording of ‘special reasons’ if the court inclines to award the death penalty. The social milieu, age, educational levels, family circumstances, socio-economic background, psychological evaluation of a convict and post-conviction conduct were relevant factors at the time of considering whether the death penalty ought to be imposed, the division bench observed.
“It is desirable to have such a study before hearing the DSRs and the appeal challenging conviction and sentence on merits so that delay could be avoided. For these reasons, we repel the objection raised by the prosecution and hold that the High Court is well within its jurisdiction to order an inquiry as to the mitigating circumstances of the convict in a proceeding to confirm the death sentence,” held the bench.
Dismissing the concern raised by the prosecutors in entrusting the task with an outside agency, the bench pointed out that the SC has recognised Project 39A and entrusted it to conduct mitigation studies in several cases. Anup Surendranath, executive director of Project 39A, who appeared before the bench online agreed to undertake the study in all the DSRs for the public good (Pro Bono).
FINAL CHECK
The mitigation investigation involves a thorough examination of the death row convicts’ social, psychological, and economic backgrounds before making a final decision on their capital punishment.
WHAT IS MITIGATION INVESTIGATION?
The mitigation investigation will take into account various relevant factors such as the convicts’ age, family background, any history of violence or neglect, their current family situation (including surviving family members, marital status, and children), as well as their education level, socio-economic status (including any experiences of poverty or deprivation), income, and employment type.