SC: Adverse consequences arise for prosecution, if DNA profiling not done.

Today, i.e. on 12th December, 2018, the Hon’ble Supreme Court in the matter of Rajendra Pralhadrao Wasnik v. State of Maharashtra pronounced that ordinarily death sentence should not be awarded in a conviction based on circumstantial evidence. The Hon’ble court also observed that where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.

The court also stated that a mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence as not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to. Further, it was held that it should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned.

The Hon’ble Apex Court also observed:

Ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the courts in cases of circumstantial evidence is this: if the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow. If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. (Para 29)

The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.(Para 45)

If an inquiry of this nature is to be conducted, as is mandated by the decisions of this Court, it is quite obvious that the period between the date of conviction and the date of awarding sentence would be quite prolonged to enable the parties to gather and lead evidence which could assist the Trial Court in taking an informed decision on the sentence. But, there is no hurry in this regard, since in any case the convict will be in custody for a fairly long time serving out at least a life sentence. (Para 46)

Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasised. (Para 47)

We should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible. (Para 47)

In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment. (Para 48)

While Section 53-A of the Cr.P.C. is not mandatory, it certainly requires a positive decision to be taken. There must be reasonable grounds for believing that the examination of a person will afford evidence as to the commission of an offence of rape or an attempt to commit rape. If reasonable grounds exist, then a medical examination as postulated by Section 53-A(2) of the Cr.P.C. must be conducted and that includes examination of the accused and description of material taken from the person of the accused for DNA profiling. Looked at from another point of view, if there are reasonable grounds for believing that an examination of the accused will not afford evidence as to the commission of an offence as mentioned above, it is quite unlikely that a charge-sheet would even be filed against the accused for committing an offence of rape or attempt to rape. (Para 49)

There can be no doubt that there have been remarkable technological advancements in forensic science and in scientific investigations. These must be made fully use of and the somewhat archaic methods of investigations must be given up. (Para 51)

For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the Cr.P.C. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution. (Para 54)

The history of the convict, including recidivism cannot, by itself, be a ground for awarding the death sentence. This needs some clarity. There could be a situation where a convict has previously committed an offence and has been convicted and sentenced for that offence. Thereafter, the convict commits a second offence for which he is convicted and sentence is required to be awarded. This does not pose any legal challenge or difficulty. But, there could also be a situation where a convict has committed an offence and is under trial for that offence. During the pendency of the trial he commits a second offence for which he is convicted and in which sentence is required to be awarded. (Para 58)

Sections 54 of the Indian Evidence Act, 1872 prohibits the use of previous bad character evidence except when the convict himself chooses to lead evidence of his good character. The implication of this clearly is that the past adverse conduct of the convict ought not to be taken into consideration for the purposes of determining the quantum of sentence, except in specified circumstances. (Para 59)

Therefore, while it is possible to grant an enhanced sentence, as provided by statute, for a recurrence of the same offence after conviction, the possibility of granting an enhanced sentence where the statute is silent does not arise. Consequently, it must be held that in terms of Section 54 of the Indian Evidence Act the antecedents of a convict are not relevant for the purposes of awarding a sentence, unless the convict gives evidence of his good character. (Para 64)

Mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to. (Para 73)

It must be appreciated that a sentence of death should be awarded only in the rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned. In other words, courts must “make assurance double sure”. (Para 75)

The failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the accused for the purposes of sentencing.(Para 79)

Copy of judgement: Judgement_12-Dec-2018

-Tushar Kaushik

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