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Keeping my feelings against the Death penalty aside, the verdict in the Nithari killings comes as a shock to me. It is not that I thought either of them to be innocent, but the idea of giving the harshest punishment meted out by law to them is what I’d like to question.

Perhaps the best portrayal of the death penalty and why it must be abolished is Albert Camus ‘s essay titled “Reflections on the Guillotine” in Resistance Rebellion and Death. I myself was spellbound when I read that essay and I’d recommend it to all my readers.

After 1981 and the cases of Bachan Singh v. State of Punjab and Machi Singh v. State, the death penalty as a form of punishment has now been held to be the exception rather than the rule. To mete out a sentence of death, there must be reasons given by the judge and the circumstances of the case must be rarest of the rare.

The idea of rarest of the rare is also to remove any possibility of the innocence of the accused and that the circumstances of the death were so grave in nature that is called for a sentence of death. It is the former aspect that I’d like to look into more. The gravity of the offence is beyond dispute.

Glanville Williams in The Proof of Guilt, a study of the English Criminal trial wrote that the idea of beyond reasonable doubt conveys the message that any single or meek possibility of the accused not committing the crime must be considered, if not for the guilt then atleast when speaking for sentence. Such factors mitigate the sentence that can be meted out to the accused and the foundations of the English system (now India) rest on such presumptions.

The point that I’d like to put forth is that if the Central Bureau of Investigation (CBI) gave a clean chit to Mohinder Singh Pandher, then this should have acted as a mitigating factor as to his sentence and he should not have been given the death penalty. What does it say of our criminal system when the judge disregards the report of the investigating authority and pronounces guilt on his own inhibitions of the facts and circumstances ?

Could the judge have been a victim of the pressure surmounted by the media in this case ? Rationality and reason says that Mr Pandher should have been given a sentence of life considering this mitigating factor and not a sentence of death (the guilty being left out of question).

We saw the treatment of such cases in Manu Sharma’s trial, Nitish Katara’s case and now this may possibly be added to the list.