As per the request made by the learned facebook friend Dr Bhanu Pandey,son of former Member of Parliament Late Sarjoo Pandey to light into the case of Yakub Memon, i submit my observations.
In view of provisions contained in section 8 of the Indian Evidence Act,1872 four things motive, preparation and previous or subsequent conducts of an accused should be taken into account to decide the nature of the case and the quantum of sentence against the accused, if the prosecution has been able to prove allegations beyond all reasonable doubts. Firstly, it ought to be observed whether prosecution has been able to prove allegations beyond all reasonable doubts before deciding as to the nature of the case and the quantum of sentence.
Questions raised in pros and cons in Yakub Memon's case are conflicting each other. Subsequent conducts of this Memon that he preferred to come India at his own volition, made his family members to come, he submitted a lot of documentary evidences against ISI and Dons including Dawood and his brother Tiger Memon and helped in enquiry don't necessarily mean that Yakub Memon was innocent beyond all reasonable doubts. On the other, we can't prove him quite guilty beyond all reasonable doubts without crossing these above facts and questions .
Such conflicting nature of facts need to be dealt with a medium way. In general nature of doubts, there is only the provision in the favour of the accused to acquit the accused on the ground of benefit of doubt, but there is no special provision for the conflicting nature of doubts. Sole provision of benefit of doubt in the law amounts to misuse of law. Sometimes making real culprit to be acquitted on benefit of doubt, sometimes making accused to undergo heavier punishment because of the absence of dealing with medium way.
Motive, preparation (manner of occurrence) and previous conducts shown by the prosecution against this accused are as such, making him to deserve death penalty, but subsequent conducts are quite conflicting against the former facts. In such circumstances, accused must not deserve either heavier punishment or benefit of doubt, but deserve medium way of punishment.
In fact, medium way of punishment must be treated as a new legal principle in course of deciding as to the facts raised in cases like Yakub Memon's Case. Accordingly, Yakub Memon doesn't deserve dealth penalty. He undoubtedly deserves any such penalty which should be medium like life time imprisonment and then pardon of imprisonment after 14 years. Since Yakub Memon has been behind bars for last 20 years, he must now be released and kept under the supervision of security guards, which is literally called house arrest.
Subsequent conducts, which are conflicting to the facts shown by prosecution, are the sufficient ground in the present case to grant mercy.
Schizophrenia as a mental illness has been held by the Supreme Court in Shatrughan Chauhan vs Union of India,(2014) 3 SCC 1 Para-86-87 to render a convict unfit for execution. Further, lack of giving opportunity of hearing to the convicted before issuance of death warrant makes the death warrant void in light of the Supreme Court decision in Shabnam vs Union of Indian and Ors, Writ Petition(Criminal) No-88 of 2015,decided on 27 May 2015.However,a fresh death warrant may be issued after giving opportunity of hearing. Both are other and secondary grounds in this case to grant interim mercy from execution till the time of becoming mentally sound of Yakub Memon or till the time of issuance of a fresh death warrant, which apply not only for this case, but for all such cases. On the ground of subsequent conflicting conducts final mercy must be granted.
