DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

SOCIOLOGY -II PROJECT

Topic: The capital punishment

Submitted to:

Submitted by:

Prof. Lakmipati Raju

Anmol Giri
Semester II, Section A
2015010

ACKNOWLEDGEMENT

On the occasion of the submission of the project of Sociology II on the topic capital
punishment , I take immense pleasure in thanking our Sir Mr. Lakmipati raju sir, for
endowing me with this opportunity to project my ideas on this wonderful topic. It is with his
guidance and tremendous support that I have succeeded in completing this project. I thank
him for coming up with this idea because as a result of this, I have imbibed intricate
knowledge about the topic.

Table of Contents
Introduction................................................................................................................................5
Meaning of Capital Punishment.................................................................................................5
Capital Punishment in various countries....................................................................................7
Capital Punishment under various legislations in India.............................................................9
Abolition of Capital Punishment..............................................................................................10
Constitutional validity of Capital Punishment.........................................................................15
No chance for Injustice............................................................................................................17
Principle of rarest of rare.........................................................................................................20
Recent rarest of rare cases of Capital Punishment..................................................................21
Conclusion..............................................................................................................................22
INTRODUCTION
All punishments are based on the same proposition i.e. there must be a penalty for
wrongdoing. Most systems of religion or ethics teach that bad actions lead to bad
consequence. There are two main reasons for inflicting the punishment. One is the belief that
it is both right and just that a person who has done wrong should suffer for it; the other is the
belief that inflicting punishment on wrongdoers discourages others from doing wrong. The
death penalty also rests on the same proposition as other punishments. Because of its drastic
and irrevocable nature, it is even more open to debate over its fairness, appropriateness and
effectiveness than other punishments. The proponents of death penalty believe that it is an

effective way to stop crime. They focus on the death penalty as a deterrent or something that
will stop or lesson crime. They believe that the death penalty brings the most justice to the
victim of a heinous crime. Death penalty has been a mode of punishment since time
immemorial. The arguments for and against has not changed much over the years. Crimes as
well as the mode of punishment correlate to the culture and form of civilization from which
they emerge. At this point of time when the issue
[whether capital punishment must be abolished or not] is still raging, it will be appropriate to
remind ourselves as to how the legislatures and the apex Court have dealt with this issue
every time it has come up before them. Another issue is regarding the extent of judicial
discretion.
MEANING OF CAPITAL PUNISHMENT
According to oxford Dictionary, Capital punishment is the legally authorized killing of
someone as punishment for a crime. Capital punishment is the death sentence awarded for
capital offences like crimes involving planned murder, multiple murders, repeated crimes;
rape and murder etc where in the criminal provisions consider such persons as a gross danger
to the existence of the society and provide death punishment2. Capital punishment or the
death penalty is a legal process whereby a
person is put to death by the state as a punishment for a crime.
CAPITAL PUNISHMENT: AN EFFECTIVE DETERRENT TO CRIME:
There is a great deal of debate over how powerful a deterrent capital punishment is. Most of
us have an instinctive feeling that the death penalty must deter, at least to some extent.
Deterrence is one of the fundamental reasons for punishment of any kind. Since death is
considered the harshest punishment available under the law, it seems logical that it must also
be the most effective deterrent to crime 1. The English barrister Sir James Stephen remarked,
No other punishment deters men so effectually from committing crimes as the punishment
of death. In any secondary punishment, however terrible, there is hope; but death is death;
its terror cannot be described more forcibly. The federal prisons now have custody of a man
sentenced to life imprisonment, who, since he has been in prison, has committed three more
murderers on three separate occasions- both of prison guard and inmates. There is no further
punishment that he can receive. In effect, he has a license to murder.
1 http://oxforddictionaries.com/definition/english/capital%2Bpunishment

ORIGINS OF CAPITAL PUNISHMENT:

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago.
Some of the ancient society imposed it only for the most heinous crimes and some imposed it
for minor offences. For example, under Romes law in the 5th century B.C., death was the
penalty for publishing insulting songs and disturbing the peace of the city at night. Under
Greeces Draconian Legal Code in the 7th century B.C., death was the punishment for every
crime. Beginning in ancient times the executions were frequently carried out in public. Public
executions provided benefits for everyone. For the surviving victims of the condemned
criminals, the execution provided the grim satisfaction of witnessing the final punishment of
those who had wronged them. For the authorities, executions served as graphic
demonstrations of their determination to protect the public safety. Public executions even
helped the authorities to do their jobs serving as grisly object lessons for potential
wrongdoers. The extent or the nature of the punishment depended as much on the social
standing of the criminal on the nature of the crime. The commoners were executed much
more often than nobles.
Minorities and foreigners were treated more harshly than members of the dominant group.
The methods of execution were also varied. The common modes of inflicting death sentence
on the offender were drowning, burning, boiling, beheading, hurling the offender from rock,
stoning, strangling, impelling, amputating, shooting by gun or starving him to death. Hanging
and beheading were the most common methods of execution in Europe and Great Britain. At
present the common modes of execution of death sentence are asphyxiation, electrocution,
guillotine, shooting and hanging. The method of execution by electrocution was first used at
Auburn State Prison, New York on 1890 and is now being extensively used in USA, UK,
USSR, Japan and other European countries. The use of Guillotine for execution was
introduced in France in 1792. The method of hanging the condemned prisoner till death has
been commonly in use in almost all the countries since ages. In India public hanging is now
held to be unconstitutional2.
CAPITAL PUNISHMENT IN VARIOUS COUNTRIES:
2 Bring Back the Death Penalty, U.S. News & World Report (April 1976); reprinted in The Death Penalty, ed.
IrwinIsenberg (New York: H.W. Wilson, 1977), 133

CAPITAL PUNISHMENT IN AMERICA:

In the wake of the American Revolution, the U.S. Constitution gave both the states and the
federal government the right to set their own criminal penalties. The very first congress of the
United States passed federal laws making death penalty for rape and murder and other
crimes. Although the death penalty was widely accepted in the early United States but its
approval was not the universal. Some of the people viz. Cesare Beccaria, Thomas Jefferson,
Dr. Benjamin Rush expressed serious doubts and objections and advocated that capital
punishment might be abolished3. And in 1917, the state of Missouri and the territory of
Puerto Rico both abolished the death penalty. The opposition to the death penalty gathered
strength again in the mid-twentieth century after the controversial executions of Willie
Francis, Burton Abbot, Caryl Chessman and Barbara Graham. Once again, several states
either abolished or restricted the use of the death penalty. In 1972, American abolitionists
scored their greatest success. In the case of Furman v. Georga6, the
U.S. Supreme Court declared that the death penalty, as it was then carried out, was cruel and
unusual punishment, therefore it was unconstitutional. Four years later, the Court ruled in
several cases. In Gregg v. Georgia7, Supreme Court said that death penalties imposed in
some states under new laws were constitutional. But the murder is a capital offence in all
thirty-eight of the U.S. states that have the death penalty.
CAPITAL PUNISHMENT IN BRITAIN:
Hanging was the traditional form of capital punishment in England. However it was not the
only one. In England beheading was normally reserved for the highborn and it was last used
in 1747. Hanging was the most common method of execution in England from Saxon times
until the 20th century. The last people to be hanged in Britain were two men, Peter Allen and
Gwynne Jones who were hanged on the same day in 1964. In Britain the death penalty for
murder was abolished for an experimental period of 5 years in 1965. It was abolished
permanently in 1969. Free votes were held on the restoration of capital punishment in 1979
and 1994 but both times it was rejected.

3 Lachma Devi v. State of Rajasthan, (1986) Cri L.J. 364

CAPITAL PUNISHMENT IN CHINA:

Capital punishment in the People's Republic of China is usually administered to offenders of
serious and violent crimes, such as aggravated murder, but China retains in law a number of
nonviolent capital offenses such as drug trafficking. The People's Republic of China executes
the highest number of people annually, though other countries (such as Iran or Singapore)
have higher per capita execution rates. Watchdog groups believe that actual execution
numbers greatly exceed officially recorded executions; in 2009, the Dui Hua Foundation
estimated that 5,000 people were executed in China far more than all other nations
combined.
CAPITAL PUNISHMENT IN INDIA:
Year 1975 and 1991, about 40 people were executed. Year 1995-2004 when there were no
executions. Anti-death penalty activist dispute those figures, claiming much higher numbers
on Death Row and actual executions. In August 2004, a 41-year old former security man,
Dhananjoy Chatterjee, was executed for raping and killing a 14 year old schoolgirl in
Calcutta. This was the countrys first execution since 1995. In 2005, about a dozen people
were on the countrys Death Row.
It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam
from convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan
was the president.
Mode of Execution:
The execution of death sentence in India is carried out by two modes namely hanging by
neck till death and being shot to death. The jail manuals of various States provide for the
method of execution of death sentence in India. Once death sentence is awarded and is
confirmed after exhausting all the possible available remedies the execution is carried out in
accordance with section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck
till death. Section 354(5) of Code of Criminal Procedure says, When any person is
sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. It
is also provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act

19572 that the execution has to be carried out either by hanging by neck till death or by being
shot to death.
CAPITAL PUNISHMENT UNDER VARIOUS LEGISLATIONS IN INDIA:
Capital punishment is prescribed as one of the punishments in various provisions of the
Indian Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic
Substances Act 1985, and The Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act,4 The Commission of Sati (Prevention) Act, 1987, The Air Force Act, 1950,
The Army Act 1950 and The Navy Act 1957. In the Prevention of Terrorism Act, 2002 also,
there was a provision for death penalty for causing death of persons using bombs, dynamite
or other explosive substances in order to threaten the unity and integrity of India or to strike
terror in the people. It is also interesting to note that under the Arms Act, NDPS Act and the
Scheduled Caste and Scheduled Tribes Act, Capital Punishment is the only punishment for
the offence covered by those sections, thus leaving no room for the judiciary to exercise its
discretion. It is doubtful whether these provisions can stand the test of the constitutional
validity in the light of the decision in Mithu v. State of Panjab105 Because in this case
section 303 of the Indian Penal Code16 was struck down as violative of Article 21 and 14 of
the Constitution of India, as the offence under the section was punishable only with capital
punishment and did not give the judiciary the power to exercise its discretion and thus
resulted in an unfair, unjust and unreasonable procedure depriving a person of his life.
ABOLITION OF CAPITAL PUNISHMENT:
There are four groups of the countries regarding the abolition or retention of the capital
punishment.
These are:
1. ABOLITIONIST FOR ALL CRIMES:
Countries whose laws do not provide for the death penalty for any crime:
Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium,
Bhutan, Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia,
4 http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html
5 AIR 1983 SC 47

Cook Islands, Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark,
Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany,
Greece, Guinea-Bissau, Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati,
Kyrgyzstan, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands,
Mauritius, Mexico, Micronesia, Moldova, Monaco, Montenegro, Mozambique, Namibia,
Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay,
Philippines, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Sao Tome And
Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia, Slovenia, Solomon
Islands, South Africa, Spain, Sweden, Switzerland, Timor- Leste, Togo, Turkey,
Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu, Venezuela.
2. ABOLITIONIST FOR ORDINARY CRIMES ONLY:
Countries whose laws provide for the death penalty only for exceptional crimes such as
crimes under military law or crimes committed in exceptional circumstances:
Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia and Peru.
3. ABOLITIONIST IN PRACTICE:
Countries which retain the death penalty for ordinary crimes such as murder but can be
considered abolitionist in practice in that they have not executed anyone during the past 10
years and are believed to have a policy or established practice of not carrying out executions.
The list also includes countries which have made an international commitment not to use the
death penalty:
Algeria, Benin, Brunei, Burkina Faso, Cameroon, Central African Republic, Congo (Republic
of), Eritrea, Gambia, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, Maldives,
Mali, Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian
Federation, South Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga,
Tunisia, Zambia.
DEBATE OVER ITS ABOLITION AND RETENTION:
An eye for an eye will make the whole world blind.
---Mahatma Gandhi
UNITED NATIONS VIEW:

The United Nations High Commissioner for Human Rights called a meeting in early July to
commemorate the fifth anniversary of the General Assemblys vote in favor of a moratorium
on the death penalty. The Secretary-General, Ban Ki-moon, delivered some remarks in which
he reminded listeners that more than 150 countries have either abolished capital punishment
or restricted its application. Some 32 states retain the death penalty in case of drug-related
crimes and last year only 20 countries actually conducted executions. In the United States, 17
states have done away with the death penalty.
The right to life is the most fundamental of all human rights. It lies at the heart of
international human rights law. The taking of life is too absolute, too irreversible, for one
human being to inflict it on another, even when backed by legal process. Where the death
penalty persists conditions for those awaiting execution are often horrifying, leading to
aggravated suffering. Information concerning the application of the death penalty, including
secret trials and executions, is often cloaked in secrecy. And it is beyond dispute that innocent
people are still put to death. The United Nations system has long advocated abolition of the
death penalty. Yet the death penalty is still used for a wide range of crimes that do not meet
that threshold.
ARGUMENTS FOR THE RETENTION:
1. Capital punishment acts as a deterrent 6: If the death sentence is removed, the feat
that comes in the mind of people committing murders will be removed. Do we want
more of murders in our country or do we want less of them? All sentences are
awarded for security and protection of society, so that every individual may live in
peace. Capital punishment is needed to ensure this security.
2.
2. Elimination of the criminals: When the public peace is endangered by certain particularly
dangerous forms of crime, death penalty is the only means of eliminating the offender.

6 http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-

scjudge-the-rarest-of-rare-category

3. Possibility of repeated murders: Society must be protected from the risk of a second
offence by a criminal who is not executed and who may be released, after release may
commit murder again.
4. Condition in India: In countries where capital punishment has been abolished, the
figure of homicide is very low; four in a million, or even less than that.
5. Public opinion: Public opinion is substantially in favor of capital punishment, and it
would be unwise to abolish capital punishment contrary to the wishes of the majority
of the citizens.
6. Prison administration: Keeping murderers alive in the prison greatly complicates
the work of prison administration. If all convicted murderers were imprisoned, safety
of the prison staff and the general public from the dangerous prisoners would be at
risk.
7. Saving of funds: Money of the citizens should not be spent on maintaining people
who cause great harm.The taxpayers should not be called upon to pay for the
maintenance of anti-social criminals for an indefinite or for a very long period.
8. Proportionate to crime: The punishment should bear a just proportion to the crime.
Therefore, capital punishment is the only fit punishment for those who have
deliberately violated the sanctity of human life.
ARGUMENTS FOR THE ABOLITION:
1. Capital punishment should be abolished because it is a legalized, revengeful and cruel
destruction of Gods most wonderful creation, the human being.
2. Immoral:. Capital punishment is morally indefensible. Society has no right to take the life
of any person. It is morally wrong for the State in the name of the law to take the life
deliberately. In eliminating the criminals, it is stated; the State does not erase the crime, but
repeats it.

3. Inhuman: Capital punishment is essentially inhuman. Death penalty is a form of cruelty

and inhumanity unworthy of a humane civilization; even the most efficient methods of
execution do not result in instantaneous and painless death. Humanity demands that capital
punishment comes to an end.
4. Non-violence: Indian ideology is based on non-violence. Indian tradition is based on
reformation of the mind and spirit. Where it was the opinion that only God could take away
life given by him. Therefore a murderer should be sent to a penitentiary and there given every
chance of reforming himself.
5. Irrevocable: Capital punishment is irrevocable. If an innocent person is sentenced to death
and executed, the greatest injustice results. When as a result of an erroneous conviction, a
man is sent to prison, he can be compensated. But death admits of no compensation.
6. Unjust: The sentence of death injures the family of the offenders, and thus imposes
suffering on persons who have done nothing to deserve the suffering.
7. Unequal application: Death penalty is applied unequally. Some persons who have not
sufficient financial means to defend themselves or are morally unable to do so, suffer. The
penalty, therefore, which should be the expression of absolute justice, often leads in practice
to injustices against individuals.
8. An eye for an eye: It will suffice to note that the system of individual revenge is no longer
recognized. The punishment should not be given to any offender having this principle in the
mind. The court should adopt the retributive approach in these cases.
CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT:
Article 21 of the Constitution of India provides Protection of life 7 and personal liberty to
every people. And the deprivation of life of anyone is unconstitutional under Article 21. It
also said that No person shall be deprived of his life or personal liberty except according to
procedure established by law, it means, if there is a procedure then state can deprive a person
7 12 Law Commission of India, 35th Report Volume I-III (Capital Punishment)

September1967,Ministry of Law, Government of India

from his life. In many countries there has been a demand for abolition of the death penalty
and in some this demand has been accepted and death penalty has been abolished. In India,
too there are many social workers including lawyers and judges who have voiced this
demand. Prominent amongst them are Bhagwati J. and Krishna Iyer J. both former judges of
the Supreme Court, Krishna Iyer J. Very recently while addressing a Human Rights
organization strongly expressed himself in favor of the abolition of death penalty.
Justice A.K. Ganguly of the Supreme Court has termed the award of death sentence as
"barbaric, anti-life, undemocratic and irresponsible" which is "legal" in the prevailing judicial
system. The doctrine of the crime falling in the 'rarest of rare' category in awarding the death
penalty was a "grey" area as its interpretation depended on individual judges. He cautioned
that before giving death penalty, a judge must be "extremely careful" and weigh "mitigating
and aggravating circumstances.
So far as constitutionality is concerned it has to be considered in the light of the provision of
the Constitution of India. In India, through Article 21, the State is given the power to take
away the life of a person through a procedure established by law. This means that through
there is a procedure established by law, state can deprive a person of his life. Through judicial
pronouncements, this procedure is interpreted to mean, a fair, just and reasonable one.
Though the constitutional validity of the death punishment was challenged as violative of
Article 19 and 21 of the Constitution of India, because it didnt provide any procedure to the
Court upheld the validity of death sentence. Since the procedure by which the life is taken is
fair, just and reasonable. The judges are given ample power to exercise their discretion to
award death penalty as against imprisonment for life.
The question of constitutional validity of death penalty has been raised before the Supreme
Court of India more than once. In case of Jagmohan Singh v. State of Uttar Pradesh8, the
constitutional validity of death penalty was upheld by the Supreme Court by a unanimous
decision of the five judges composing the Bench. In case of Rajendra Prasad v. Stat9e of
Uttar Pradesh10, Krishan Iyer J. said that death penalty directly affects the life of the people
8

AIR 1973 SC 947

9 AIR 1979 SC 916

10

16 AIR 1980 SC 898

guaranteed under Article 21 of the Constitution. But it has been provided by law and there is
nothing like due law in Article 21. Therefore, it is valid. He further said that to impose death
penalty the two things must be required:

The special reasons should be recorded for imposing death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.

The question was again considered by a five judges Bench in case of Bachan Singh V. State
of Punjab, particularly in view of certain observations of Krishan Iyer J. In Bachan Singh
case judges considered the social, ethical and even spiritual aspect of death penalty while
upholding the constitutional validity thereof. But by a majority of four to one, Bhagwati J. in
Bachan Singh case recorded a dissenting note. Bhagwati, J. in his dissenting judgment has
given a number of reasons for holding that death penalty is not only unconstitutional being
violative of articles 14 and 21 but also undesirable from several points of view". One of the
reasons given by him is that death penalty is irrevocable because the execution of the
sentence of death in such a case makes miscarriage of justice irrevocable. He referred to the
Book Death Penalty in America by Hugo A. Bedau which catalogues 74 cases in which it has
been responsibly charged and in most of them proved beyond doubt that persons were
wrongly convicted and executed though innocent. It is no doubt true that conviction and
execution of an innocent man for murder shocks the human conscience and it is also true that
human judgment is not infallible but I may respectfully point out that the criminal law in our
country is heavily loaded in favor of the accused and an erroneous conviction is not at all
possible. In England and America the trial is by jury and it may with utmost honesty more
readily record an erroneous verdict of guilty than a judge. A jury is very much influenced by
the consideration that the interests of the society demand that no offender who perpetrates a
shocking crime should escape the clutches of law and the punishment he deserves. A judge's
approach in our country is more cautious. He is guided by the principle that hundred guilty
persons may escape but not one innocent person should be convicted.
NO CHANCE FOR INJUSTICE:
It is on the basis of this principle that in India benefit of a reasonable doubt is given to the
accused even in cases of murder. A defense counsel uses all his skills and ingenuity to create
a doubt in the mind of the judge and he gets repeated opportunities to do so. If he fails in the
trail court, he makes a second attempt in the High Court and a third one before the Supreme
Court. Thus the possibility of an erroneous conviction is wholly excluded.

Apart from this the power of pardon, remission and commutation of sentence vested in the
Governor and the President furnishes another safeguard against a judicial error in the matter
of punishment. The whole matter is examined with great care and caution while exercising
the said power, keeping in view the interests of the individual on the one hand, and interests
of the society on the other. The President is the elected head of the State and is expected to
give effect to the will of the people. Thus a convict cannot be executed unless the extreme
penalty in a particular case is not only considered proper in a judicial verdict but is also in
consonance with the wishes of the people in general. I need not refer to other aspects of the
matter which have been dealt with at length by Sarkaria J, in his elaborate majority judgment
but I would like to stress one aspect of the matter. I fail to see why too much importance
should be attached to the life of an individual who has been found guilty of a heinous offence
when the interests of the society demand that death penalty should be awarded to him. Often
in the event of a riot the police are required to open fire in the interests of society to disperse
an unruly mob indulging in arson and violence to restore order if other methods fail. In such a
firing even innocent persons are killed. Shall we say that the police should never resort to
firing to quell a riot or to disperse a riotous mob merely because there is a risk of innocent
persons being killed? No one will ever say that. If so why should we have qualms of
conscience in awarding death penalty to an offender in extreme cases where the interest of
the society demands it. The reformative aspect of justice is no doubt very important. But we
do come across criminals who are beyond redemption.
Even Krishna Iyer J. who strongly advocated the social and human aspect of law conceded in
Rajendra Prashad's case that death penalty may be legally permissible when he can never be
reformed. Moreover, the Criminal Law provides ample safeguards. Under section 354(3) of
the Code of Criminal Procedure the Court has to give special reasons for awarding the death
penalty. Section 235(2) provides a hearing after conviction on the question of sentence.
Hanging of a murderer gives no pleasure to a judge. He merely discharges a painful duty
while awarding the death sentence in the interests of the society. We can, therefore, repose
trust in the judges that they would discharge this onerous function with scrupulous care and
human concern bearing in mind that imprisonment for life is the normal penalty for murder
while death penalty is to be awarded only where the offender appears to be extremely
depraved and a potential menace to society. So far as the constitutional aspect is concerned
very cogent reasons are given in the majority judgment for upholding the constitutional
validity of death penalty. To sum up, there can be no doubt about the constitutionality of the
death penalty in our country. As regards its propriety in a particular case the matter has to be

left to the discretion of the judge who has to bear in mind that normally imprisonment for life
is the appropriate sentence for murder under section 302 IPC, particularly in the case of a
woman. In the case of adult males death sentence may be awarded in cases where the murder
and the entire circumstance of the case show that he is a potential menace to the society. The
question of propriety of death penalty in a particular case has to be judged not merely from
the point of view of the accused; the interests of the community as a whole must also be
taken into consideration. Chief Justice Chandrachud expressing the view of the three Judges
of the Supreme Court in Sher Singh v State of Punjab 11 held that death sentence is
constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This
has to be accepted as the law of the land. The challenge touching the constitutionality of the
death sentence also surfaced in Triveniben v State of Gujarat12 and the Supreme Court
asserted affirmatively that the Constitution does not
prohibit the death penalty.
Section 303 of Indian Penal Code:
In case of Mithu v. State of Punjab13, it was contended that mandatory sentence of death for
murder committed by life-convicts under section 303 of IPC is violative of rights guaranteed
under Article 14 and 21. Therefore, section 303 of IPC is unconstitutional not only for the
reason that it is unreasonable and arbitrary but also because it authorizes deprivation of life
by an unjust and unfair procedure. Section 303 of IPC provides punishment for murder by
life convict-Whoever, being under sentence of imprisonment for life, commits murder, shall
be punished with death." In this case Supreme Court strike down section 303 of Penal Code
as unconstitutional and declare it void.
Delay in execution of the death sentence:
Delay in execution of death sentence is a factor which may be taken into consideration for
commuting the sentence of death to life imprisonment. In the case of Triveniben v. State of
11 AIR 1983 SC 465
12 AIR 1989 SC 1335
13 AIR 1983 SC 473

Gujarat14, the Supreme Court held that15 "....undue long delay in execution of the death
sentence will entitle the condemned person to approach this court will under Art 32, but this
court will only examine the nature of delay caused and circumstances ensued after sentence
was finally confirmed by the judicial process..No fixed period of delay could be held to
make the sentence of death in executable. If the Supreme Court finds the delay to be undue in
the foregoing sense, the court would quash the sentence of death and substitute for it the
sentence of imprisonment of life to that accused.
Procedure established by law in Article 21 means a procedure which is just, fair and
reasonable. Hence, any circumstance which renders the sentence harsh, unjust or unfair,
offends Article 21. An undue long delay in execution of the death sentence after its
confirmation (ss. 413-415, CrPC), for which the accused himself is not responsible, renders
the sentence harsh and unjust as it causes additional torture and inhuman treatment.
Rope- Hanging:
The question was arisen before the Supreme Court in Deena v. Union of India, whether the
execution of death penalty by hanging by rope is constitutional or not?
Supreme Court held that the method prescribed by s. 354(5), Cr. P.C. for executing the death
sentence does not violate the provision contained in Article 21 of the Constitution. The
system of hanging by rope is in operation in large parts of the civilized world and there is a
responsible body of scientific and legal opinion which holds that hanging by rope is not a
cruel mode of executing the death sentence.
Public- Hanging:
Another question was arisen before the Supreme Court in Lachma Devi v. State of Rajasthan
whether for the execution of death penalty public hanging is constitutional or not?
For answering this question Supreme Court adopted liberal view and held that public hanging
is not prescribed in the prison rules therefore it is unconstitutional.
PRINCIPLE OF RAREST OF RARE:
14 AIR 1983 SC 473
15

Mr. Gaur K.D, Indian penal code, fourth edition 2009, pg no. 492.

Now, the judiciary has evolved its own jurisprudence in evaluating which cases are to be
consideredas fit ones for awarding capital punishment. Thus capital punishment is awarded
only in rarest of rare cases. The determination of this is very difficult. There are various
decisions in which the determination of rarest of the rare was in question. The Court could
not follow any uniform guideline to reach a conclusion, and the subjectivity of the judges
also play a vital role in this determination. The death sentence should be imposed in the rarest
of the rare case. The Supreme Court in Machhi Singh v State of Punjab (1983) apex court
laid down a few principles which were to be kept in mind while deciding the question of
sentence:
Is there something uncommon about the crime which renders sentence of imprisonment for
life inadequate and calls for a death sentence? Are there circumstances of the crime such that
there is no alternative but to impose death sentence even after according maximum weightage
to the mitigating circumstances which speak in favor of the offenders?"
RECENT RAREST OF RARE CASES OF CAPITAL PUNISHMENT:
Dhananjoy Chatterjee v. State of West Bengal & Ors 16 . The appellant, Dhananjoy
Chatterjee was found guilty of offences punishable under Sections 376, 302 and 380 of the
Indian Penal Code by judgment and was awarded death sentence by the session judge,
confirmed by the High Court. A special leave petition was filed by the appellant. Leave was
granted but the appeal was dismissed by the Supreme Court.
Sushil Murmu v. State of Jharkhand 17, A young child of 9 years was sacrificed before
Goddess Kali by the appellant for his own prosperity is what the prosecution alleges. The
Supreme Court awarded death penalty to the accused.

16[2004] 9 SCC 759

17 AIR 2004 SC 394

State of U.P. v. Satish18, Stressing that leniency in punishing grave crimes would have
serious consequences the supreme court has awarded the death penalty to a man for the rape
and murder of a six year old girl.
Ajmal Kasab case19, on 3 May 2010, Mumbai Special Court convicted Ajmal Kasab for
murder, waging war on India, possessing explosives, and other charges. On 6 May 2010, the
same trial court sentenced him to death on four counts and to a life sentence on five other
counts. Kasab has been sentenced to death for attacking Mumbai and killing 166 people on
26 November 2008. He was found guilty of 80 offences, including waging war against the
nation, which is punishable by the death penalty. Kasab's death sentence was upheld by the
Bombay High Court on 21 February 2011. And on 29 August 2012 his death sentence was
upheld by the Supreme Court also.
On October 5, 2012, Additional Sessions Judge Ramesh Kumar Singhal of Delhi Court
handed down the death sentence to the five persons, who had mercilessly tortured and
electrocuted the girl and her lover as they were opposed to her plan of getting married to the
boy belonging to a Scheduled Caste.
Conclusion
In the wake of above discussion and ground realities of present day world following
conclusions can be drawn:
The opposition to abolition of the death penalty stems from the myth that it will lead an
increase in the number of murder20s. The fact is that in the state of Travancore there were 162
murders between 1946 and 1950 when the death penalty was not in force, But in the five
years from 1950 when it
was re-imposed. There were 967 murderers. It has been argued that it is not possible to fight
such crimes by framing law. What we need is to target the root of crime.

18 Appeal (cri.) 256-257 of 2005

19 AIR 2004 SC 394

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20

Even Krishna Iyer J. conceded in Rajendra Prashads case that death penalty may be awarded
where the killer is such a monster or a beast that he can never be reformed. Criminals, who
can be hired to kill anyone or to throw a bomb in a crowd killing many innocent men, women
and children, deserve no sympathy. We cannot ignore the interests of the community or the
country while considering whether death sentence would be appropriate in a particular case.
So far as juveniles are concerned they have to be dealt with under the appropriate Acts for
juvenile offenders and there is no question of awarding death sentence in their case.; Thus,
after taking into consideration the interests of the individuals on the one hand and interests of
the community on the other, it would be highly imprudent to abolish the death penalty.
REFERENCES
BOOKS REFERRED
1. Mr. Gaur K.D, Indian penal code, fourth edition 2009, pg no. 492.
2. Law Commission of India, 35th Report Volume I-III (Capital Punishment) September
1967,Ministry of Law, Government of India.
3. Bring Back the Death Penalty, U.S. News & World Report (April 1976); reprinted in The
Death Penalty, ed. Irwin Isenberg (New York: H.W. Wilson, 1977), 133
WEBSITES REFERRED
1. http://oxforddictionaries.com/definition/english/capital%2Bpunishment.
2. http://www.legal-explanations.com/definitions/capital-punishment.htm
3. http://www.localhistories.org/capital.html
4. http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html
5.

http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-

scjudgethe-rarest-of-rare-category
6.

http://indiatoday.intoday.in/story/delhi-court-sentences-five-of-a-family-to-death-for-

honourkilling/
1/223521.html