STATE OF KERALA Vs. SALINI

JUDGEMENT

(1.) The question posed for consideration before us is when a reference is to be made by the Sessions Judge under R.131 of the Criminal Rules of Practice, Kerala, 1982 (hereinafter referred to as the 'Rules'). Is the reference to be made pre or post sentence in a case of infanticide is the short question. In examining that question, correctness of some observations made in (Radhamony v. State of Kerala, Crl. A. No. 496/1999) directing a reference from the Sessions Judge before imposing the sentence also arise for consideration.

(2.) The facts giving rise to this reference can be summed up thus:

(3.) We heard the learned Director General of Prosecutions, Adv. Sri. V. G. Govindan Nair. The learned Director General of Prosecution wanted us to examine the question for making the reference on the question of sentence to be imposed on a woman convicted of the murder of her child / children with reference to the sweeping powers enjoined by the Government to exercise mercy jurisdiction. Practically conceding that the executive has a role in the matter of remission of a sentence only after the judicial process is over, the learned Director General of Prosecution stressed for having a different outlook and perspective with respect to the sentence to be awarded against a woman of infanticide of her child / children and the role of the State in the exercise of mercy jurisdiction in such cases in interpreting and analysing the scope of R.131 of the Rules. Pointing out that the High Court has framed R.131 of the Rules, it is urged by the learned Director General of Prosecution that an effective role in modulating the proper sentence to be imposed on a woman convicted of infanticide of her child / children has been conferred on the State having regard to the mercy jurisdiction exercisable by the State and also that most of the indictees of infanticide are victims of exploitation in view of their social and economic backwardness, and the larger interest and welfare of the Society demand for a co - active role by the Government in imposing sentence on such hapless victims. The Sessions Judge after finding the indictee - woman of infanticide of her child / children - guilty and convicting her, it is submitted, has to award either of the two sentences - death or imprisonment for life against her as mandated under S.302 of IPC. Such sentence imposed by the learned Sessions Judge may be grossly disproportionate where the indictee is shown to be a victim of exploitation on account of her social and economic backwardness or such other extenuating circumstances. So much so, the State, according to the learned Director General of Prosecution, in the case of women convictees of infanticide of their child / children in the larger interest of the society must be clothed with authority and empowerment to exercise the mercy jurisdiction before sentence is imposed on such convictee, and that alone has been consciously given recognition in R.131 of the Rules mandating a reference after conviction in a case of infanticide before imposition of sentence.