Guilty. What Next? – How Courts Decide Between Life Imprisonment and Capital Punishment


While making judgments, courts are supposed to go beyond the crime committed to gather a holistic picture of the accused’s life. But the lack of training and resources makes this difficult to practice.


Akshay Thakur, Pawan Kumar, Vinay Sharma and Mukesh Singh have been depicted – both by the courts and in public discourse – as beastly, perverse, barbaric and barely human. In such an environment of hate and abhorrence, understanding them beyond their actions on the night of December 16, 2012, is no easy task, but is required as the courts engage in the onerous task of determining the appropriate punishment for these men. Given that India does not have mandatory death sentences, a court always has to choose between life imprisonment and a death sentence. In this context, considering the accused persons’ circumstances assumes enormous significance, since the choice has to be made after following due process. A significant part of this process is the collection of all appropriate evidence surrounding the accused, in a process known as mitigation investigation. Mitigation investigation in India unfortunately remains undeveloped and underutilised even 37 years after the Supreme Court urged sentencing judges in capital cases to take a liberal and expansive approach to interpreting an accused’s mitigating circumstances.

A holistic mitigation exercise should seek to elicit information about the life of the accused from multiple sources and build a life history that moves beyond a superficial representation of the accused’s life. It is a multi-step process of gathering and presenting evidence to a court that portrays an accused as embedded in their historical, biological, psychological and social context in order to urge the judge to render a more individualised and contextualised sentence in capital punishment cases. This process typically entails collecting documentary evidence and conducting interviews with key informants such as, but not restricted to, family members, partners, employers, school teachers, doctors, neighbours, spiritual guides as well as clients themselves. A full-fledged mitigation investigation will seek to uncover facts and experiences from the accused’s life – relating to their psychological, social, economic conditions, taking cognisance of their history of illness, abuse, accidents, etc. that renders possible an ethnographically rich and nuanced profile of the accused.

While police investigators in this case did a thorough job of collecting all relevant material over a period of three months to establish guilt, the defence counsel had just two weeks to investigate and present evidence on the lives of four adults, aged 19, 20, 26 and 28 years at the time of the offence. Although the court enabled prison access to conduct interviews with the accused, it neither specifically sought for nor received information about the accused from any other source. Following this order, counsel for the accused presented evidence of the socio-economic vulnerabilities, young age, absence of previous criminal conduct and attempts at reformation made by the accused while in prison. While the judgment cites the mitigating factors presented to it through affidavits from the accused, it does not engage with their relevance in understanding the accused, holding that they are slender in comparison with the crime.