Dissenting decision by one judge will not bar the Death Penalty
A review petition was filed by Manoharan whose Death Penalty was upheld by the Supreme Court. In August 2019, the Supreme Court pronounced the death penalty of an accused that kidnapped; gang-raped and then murdered a girl of 10 years of age and her brother who was 7 years old. The decision was given by a three-judge bench comprising of Justice Rohinton Fali Nariman and Justice Surya Kant gave the judgment in the majority and upheld the death sentence of the convict whereas Justice Sanjiv Khanna dissent with the view of the majority judgment.
While reviewing the decision, one of the contentions raised by Senior Advocate Siddharth Luthra was that a dissenting opinion of one of the judges is itself is a ground that the death penalty should not be granted in this case.
The ground of young age and the responsibility of the aged parents were stated in the Court. However, the Court while upholding the death penalty clarified that the young age of the convict is a major issue and is a longer risk to society, therefore, it should be dealt with more seriousness rather than commuting the sentence.
In the present case, the deceased children were firstly kidnapped, the girl was gang raped and then both were put into the canal, which resulted in their death. This did not happen in the heat of the moment but was properly planned and executed with guilty intentions. The Court was of the view that the present offences of the petitioner are so grave so as to shock the conscience of the Court and the society, therefore, the case amounts to be the rarest of the rare.
Another contention that was raised was that the amendment to Prevention of Children from Sexual Offences (POCSO) Act, 2012 should not have relied upon the new law was non-existent on the date of occurrence and hence cannot be applied retrospectively.
A straitjacket formula cannot be derived as to in what situations sentence of the death penalty can be awarded and in what circumstances it cannot be awarded. It depends on the facts of each case plus other factors such as that of the graveness of the offence, aggravating and mitigating circumstances, the circumstances of the offender and that of the crime.
In the present case, though the death sentence was not awarded by the whole bench, nevertheless the dissenting opinion will not bar the death penalty.
Hence, the review petition was dismissed.