A death penalty is given in ‘‘the rarest of rare cases.’’ The latest death sentence upheld by the Supreme Court is also the rarest of rare cases—but for a very different reason. One judge of a three-judge bench, who is incidentally the presiding judge, acquitted the accused. And in stark contrast, the other two judges convicted him arguing, unusually, that proof ‘‘beyond reasonable doubt’’ should be a ‘‘guideline, not a fetish.’’ And that procedure is only ‘‘a handmaiden and not the mistress of law.’’ This verdict, delivered by Justice Arijit Pasayat and Justice B N Agrawal, found Devender Pal Singh guilty of participating in the 1993 car bomb attack in New Delhi targeting then Youth Congress leader M S Bitta but killing nine other persons. Devender is one of the four accused in the TADA case investigated by the Delhi police. One has already been acquitted, the remaining two have not even been traced by the police. This was one of the reasons cited by Justice M B Shah when he exonerated Devender. Justice Shah said that the conspiracy theory falls flat as the ‘‘rest of the accused who are named in the confessional statement are not convicted or tried.’’ A conspiracy by definition involves two or more persons and ‘‘it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself,’’ he said. Also, Justice Shah argued, the police failed to corroborate the confessional statement Devender is said to made before them. This despite the fact that Devender retracted that statement. And the independent witnesses produced by the police contradicted the confessional statement ascribed to Devender. Moreover, the police, in contravention of the law, failed to send the confessional statement at the earliest opportunity to the magistrate concerned. However, the majority verdict, in a bid to explain away the infirmities pointed out by Shah, said: ‘‘If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect.’’ Said Pasayat: ‘‘One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.’’
