"Not Rarest Of Rare": Kerala HC Commutes Death Penalty Of Man Convicted For Nephews' Murder

The Kerala High Court has commuted the death penalty imposed on a man to 30 years of rigorous imprisonment without remission, for the murder of his nephews, aged 3 and 7. Additionally, the Court imposed a fine of 5 lakh rupees on the accused, which is to be paid to the mother of the deceased children.

In that context, the Bench of Justice AK Jayasankaran Nambiar and Justice Syam Kumar VM observed that, "the facts in the instant case do not make it appropriate for classification under the head “rarest of rare” warranting imposition of a death sentence on the appellant/accused. That said, we cannot lose sight of the heinous crime that was committed by the appellant/accused against two innocent children aged 7 and 3... we feel that on the facts and circumstances in the instant case, a sentence of rigorous imprisonment for a period of 30 years without remission would serve the ends of justice and balance the conflicting interest of the appellant/accused, on the one hand, and the victim and the people at large on the other. We therefore modify the sentence imposed on the appellant/accused under Section 302 IPC to one of rigorous imprisonment for a period of 30 years without remission."

The accused was convicted and sentenced to the death penalty along with a fine of 5 lakh rupees by the Additional Sessions Judge I (Special Court), Pathanamthitta under Section 302 of the IPC. He was also convicted for offenses under Sections 449 (house trespass to commit an offence punishable with death), 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapons), and 436 (mischief by fire or explosive substance with intent to destroy a house) of the IPC.

The prosecution alleged that on October 27, 2013, the convict murdered his brother's children due to family disputes over property division. It was stated that he slit their throats and threw chilli powder on their mother's face when she tried to intervene.

The defence argued that the convict was not in a fit state of mind and lacked the mens rea (intent) when he committed the acts that led to his conviction.

The Court held that the murder committed by the convict had been established beyond a reasonable doubt based on the eyewitness statements from the mother of the deceased children. When considering the death sentence, the Court referred to landmark Supreme Court decisions in Bachan Singh v. State of Punjab (1980) and Machhi Singh v. State of Punjab (1983), which established that the death penalty should only be imposed in the "rarest of rare" cases that shock the collective conscience of the community.

The Court also referred to the decision in Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019), emphasizing that courts should consider the probability of the accused's reformation and rehabilitation before awarding a death sentence. The Court noted a shift from punitive to reformative and rehabilitative responses to crime, stating, "a criminal is not only a product of his decisions but also a product of the State and society's failure."

Relying on recent Supreme Court decisions, the Court asserted that harsher sentences of imprisonment could be a viable substitute for the death penalty. The Mitigation Study Report by Project 39A of the National Law University, Delhi, indicated a probability of reformation for Chacko. Additionally, the Psychiatrist's report noted that Chacko expressed regret over committing the murder.

Considering these factors, the Court concluded that the present case did not fall under the "rarest of rare" category warranting the death penalty.

Cause Title: State of Kerala vs Thomas Chako @ Shibu

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