Surrendering before god a ground for relief to death row convict?

Dhananjay.Mahapatra
New Delhi: Can offering of namaz many times a day by a 36-year-old condemned prisoner, convicted of raping and murdering a six-year-old girl, be one of the grounds for commutation of his death sentence to life imprisonment?
This question was thrown by lawyers at a recent Orissa HC judgment which cited “he is offering prayer to god many times in a day and he is ready to accept the punishment as he has surrendered before god” as a ground to conclude that the case be not categorised as ‘rarest of rare’ one, which alone attracts capital punishment.
A division bench of Justices S K Sahoo and R K Pattanaik upheld the trial court’s order convicting Shaikh Asif Ali for rape and murder of the child and 302/376 of IPC as also section 6 of Pocso Act. However, it ordered that the convict, who was 26-years-old at the time of crime in 2014, will be kept in jail till his death. It asked the state govt to pay Rs 10 lakh to the victim’s parents.
Apart from the daily offering of namaz and surrendering to god for punishment, the bench listed out several other grounds to justify commutation of the death sentence to life imprisonment. It said, “He is a family man and having an old mother aged about 63 years and two unmarried sisters and he was the sole bread earner of his family and working as a colour mistri in Mumbai and the financial condition of the family is not good.”
“His character and conduct was good in school and he passed matriculation in the year 2010. He could not continue his higher studies due to financial problems in the family. He was a good cricket and football player during his teenage years. Even though he is in judicial custody for about ten years, reports submitted by jail superintendent and the psychiatrist indicate that his conduct and behaviour inside prison is normal, his behaviour towards co-prisoners as well as staff is cordial and he is maintaining every discipline of the jail administration.”
“Neither there is any adverse report against him during the entire period of confinement nor he has committed any prison offence. He is offering prayer to god many times in a day and he is ready to accept the punishment as he has surrendered before god,” said Justice Sahoo, who authored the judgment.
“There is no cogent evidence that the appellant is beyond reform and rehabilitation. Considering the entire facts and circumstances, the aggravating circumstances and mitigating circumstances, it cannot be said that capital punishment is the only option for the appellant and that the option of imprisonment for life will not suffice and is wholly disproportionate,” the HC said.