LAW OF CRIMES-II

(Cr.P.C)

Submitted by:-
M.Dinesh sharma
V-yrs.B.com,BL(Hons)
 INTRODUCTION

Between 1975 and 1991, about 40 people were executed. The number of people executed
in India since independence in 1947 is a matter of dispute; official government statistics claim that
only 52 people had been executed since independence, but the People's Union for Civil Liberties
cited information from Appendix 34 of the 1967 Law Commission of India report showing that
1,422 executions took place in 16 Indian states from 1953 to 1963, and has suggested that the total
number of executions since independence may be as high as 3,000 to 4,300. At least 100 people
in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not
executed), according to Amnesty International figures. No official statistics of those sentenced to
death have been released.

On April 27, 1995 Auto Shankar was hanged in Salem, Tamil Nadu. Since 1995 only one
execution, that of Dhananjoy Chatterjee in August 2004, took place.

About 26 mercy petitions are pending before the president, some of them from 1992. These
include that of Khalistan Liberation Force terrorist Davinder Singh Bhullar who was convicted for
killing nine persons and injuring 31, the cases of slain forest brigand Veerappan's four associates—
Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran—for killing 21policemen in 1993 ;
Gurdev Singh, Satnam Singh, Para Singh and Sarabjit Singh, given death penalty for killing 17
persons in a village in Amritsar in 1991 ; and one Praveen Kumar for killing four members of his
family in Mangalore in 1994.

Afzal Guru was convicted of conspiracy in connection with the 200 Indian Parliament
attack and was sentenced to death. The Supreme Court ofIndia upheld the sentence, ruling that the
attack "shocked the conscience ofthe society at large." Afzal was scheduled to be executed on
October 20,2006, but the sentence was stayed. The Afzal case remains a volatilepolitical issue.

On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war
on India, possessing explosives, and other charges. On6 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 along with nine
Pakistani terrorists. He was found guilty of 80 offences, including waging war against the nation,

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which is punishable by the death penalty. Kasab's death sentence was upheld by the Bombay High
Court on 21 February 2011.

On 5 March 2012, a sessions court in Chandigarh ordered the execution of Balwant Singh Rajoana,
a Babbar Khalsa militant, convicted for his involvement in the assassination of Punjab Chief
Minister Beant Singh. The sentence was to be carried out on 31 March 2012 in Patiala Central Jail,
but the Centre stayed the execution on March 28 due protests from hardline Sikh groups.

On 13 March 2012, a court in Sirsa, Haryana, awarded death penalty to 22-year-old Nikka
Singh for raping a 75-year-old woman and later murdering her by gagging her mouth with a shawl
and by strangulating her neck with her salwar on February 11, 2011. "Imposition of death sentence
is most appropriate in this case. The court has held that it was a cold-blooded murder and where
rape was committed on an innocent and hapless old woman," said Neelima Shangla, the Sirsa
additional district and sessions judge. "The rape and cold-blooded murder of a woman, who was
of grandmother’s age of the accused, falls in the rarest of the rare case." The court held that Nikka
Singh was a "savage" whose "existence on earth was a grave danger to society" as he had also
attempted to rape two other village women.

The approach of Indian Courts and laws must be seen in such perspective that they have
pulled Death Penalty to be retained in Indian Penal system. Never the less Indian Penal system has
not scalded death penalty. It has put Death penalty in utmost importance and is so awarded for rare
crimes in rare cases for rare Criminal. As the precision of Indian Laws and procedures strive to
reach Justice. It strives for punishment for guilty and it strives for innocent to be not sentenced
even unknowingly. However, there are procedural hazardous which are tried to be minimized. The
position of Death penalty, its positive ends & negative ends in Indian laws.

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 Execution of death sentence in context of Indian Law

The ancient law of crimes in India provided death sentence for quite a good number of
offences. The Indian epics viz, the Mahabharata and the Ramayana also contain references about
the offender being punished with vandal and which meant amputating the criminals to death are
known to have existed which included changing and imprisonment of the offender. During the
medieval period of mogul’s rule in India, the sentence of death revived in its crudest form. At
times the offender was made to dress in the tight robe prepared out of freshly slain buffalo skin
and thrown in the scorching sun. The shrinking of the law hides eventually caused death of the
offender in agony, pain, suffering death penalty was by hailing the body of the offender on walls.
These modes of putting an offender to death were abolished under the British system of criminal
justice administration during early decades of nineteenth century when death by hanging remained
the only legalized mode of inflicting death sentence.

The execution of death sentence in India is carried out by two various states provide for
the method of execution of death sentence in India. Once 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 in accordance with section 354 (5) of the
Cr.P.C. 1973 i.e. hanging by neck till death. It is also provided under the Air force act, 1950, the
Army act 1950 and the Navy act 1952 that the execution has to be carried out either by hanging
by neck till death or by being shot to death.

Death penalty in India is awarded as punishment for various crimes under various acts.
The acts and the provisions for death penalty are discussed below.

1. Criminal Procedure code 1973 (Cr. P.C.)

The Criminal Procedure Code, 1973 (Cr.p.C.) is a comprehensive law that sets out
procedural rules for the administration of criminal justice. The 1973 Code was the result of a major
overhaul of the previous Code of 1898. The Code covers procedures form the registration of an
offence, to the powers, duties and responsibilities of various authorities involved in investigation
as well as procedural safeguards, provisions relating to bail and so on. The Code also elaborates
on the principles and procedures governing the conduct of trials, the manner of admission of

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evidence and related issues, culminating in provisions that govern the handing down of a judgment
at the end of a trial in a criminal prosecution. The Code also contains provisions relating to the
right of convicted persons to file revision petitions and appeals in higher courts of law.

The code of criminal procedure, 1973, also contains a provision regarding death sentence.
Section 354(3) of the code provides that while – “When the conviction is for an offence punishable
with imprisonment for life the judgment shall state the reasons for the sentence awarded, and in
the case of sentences of death, the special reasons for such sentence.” The court must record
“Special reasons” justifying the sentence and state as to why an alternative sentence would not
meet the ends of justice in that particular case. Commenting on this provision of the code, Mr.
Justice V.R.Krishna Iyer of the supreme court of India observed that the special reasons which
section 354 (3) speaks of provides reasonableness as envisaged in article 19 as a relative
connotation dependent on a Varity of variables, cultural, social, economic and otherwise. 1

Difference between criminal law in general and Special Laws that

provide death penalty:
Unless special provisions are contained within the above – mentioned laws, the procedures
set out in the Cr.P.C are followed in relation to the investigation and prosecution of crimes under
these laws. Crucially, a number of these laws include changes to the rules relating to the
appreciation of evidence at trial stage. For example, a number of laws relating to alleged acts of
“terrorism’’ have permitted the use of confessions made by an accused to a police officer as
evidence. Under ordinary criminal law, such confessions are inadmissible and of no evidentiary
value largely because of concerns about the use of torture by police to extract confessions.
Similarly, while admissions made by one accused about other co-accused are not admissible under
the ordinary criminal law, in some of the special laws such as TADA and POTA, the law has
allowed for certain presumptions to be drawn implicating other accused. While the
constitutionality of many such dangerous provisions has been challenged and upheld by the
Supreme Court of India, in practice there is clear evidence that the implementation of many of
these laws has been characterized by misuse and abuse; this only heightens concern for those
sentenced to death under such legislations. 2

1.sec.354(3) of the code of criminal procedure pg.537

2.http:// www.hinduonnet.com/fline/f12515/stories/20080801251508200.htm]

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 Procedure in Criminal Law for death penalty cases
The Cr.P.C. provides of the possibility of a three - stage judicial process. Since all death penalty
cases involve a charge of murder or similar other serious offences, all initial trials under the
ordinary criminal law are held before a District and Sessions Court in a particular state, In the
event of the trial court awarding a death sentence, it is mandatory for the respective High Court of
the state to confirm the sentence (Section 366 Cr.P.C.). The High Court has the power to direct
further inquiry to be made or additional evidence to be taken upon any point bearing on the guilt
or innocence of the accused at this stage (Section 367 Cr.P.C.). Based on its assessment of the
evidence on record, the high Court may: (i) confirm or pass any other sentence, or (ii) annual the
conviction and convict for any other offence that the Sessions Court might have convicted the
accused of or order a new trial on the basis of the amended charge, or (iii) acquit the accused
person. The High Court is also the first appellate court for a person sentenced to death. At the third
level is the Supreme Court of India. There is no automatic right of appeal from the order of the
High Court to the Supreme Court in death penalty cases except in a situation in which the High
Court has imposed a death sentence while quashing a trial court acquittal. “Special Leave” to file
an appeal with the Supreme Court has to be granted by the High Court or the Supreme Court has
to give leave to file an appeal before it. In the case of some special legislation such as the Terrorist
and Disruptive Activities (Prevention) Act 1987, provides that appeals against the ruling of the
trial court should automatically lie only with the Supreme Court (Though this Act lapsed in 1995,
trials under the Act continue to this day).

The procedure of appeal

Under the Cr.P.C. as part of the mandatory confirmation by the High Court of a death
sentence handed down by a trial court, a High Court bench of a minimum of two judges must, on
appreciation of the facts, come to its own conclusion on guilt and award a sentence as deemed fit
in the circumstances of the case. As indicated above, if the High Court confirms the death sentence,
no automatic appeal is provided to the Supreme Court. In the event that a trial court acquits an
accused in a case involving a crime punishable by death or other offences, the state alone can file
an appeal against acquittal before the High Court (Section 378 Cr. P.C.) The High Court can either
confirm the acquittal or set aside the acquittal and convict the accused for the alleged crimes and
impose sentence. If the acquittal is set aside and a death sentence imposed, Section 379 of the

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Cr.P.C. provides for an automatic appeal to the Supreme Court. Appeals may also be filed by the
state for enhancement of sentence imposed by the trial court or the High Court if it feels that the
sentence imposed is inadequate (Section377 Cr. P.C.). Ordinarily, relatives of the victims of the
crime can file revision petitions (but not appeals) seeking enhancement of the punishment in the
High Court or Supreme Court. Notably, while in the event that a High Court overturns an acquittal
and awards a death sentence there is an automatic right to appeal to the Supreme Court, there is no
such right in the event a High Court enhances a trial court’s sentence to that of death. As noted
above, access to the Supreme Court for appeal can only be granted if the High Court grants special
leave or if special leave is granted by the Supreme Court itself. The Supreme Court can dismiss a
death sentence case in line, i.e. at the threshold stage itself without even admitting the appeal for
consideration.
The right to appeal – no automatic appeal to the Supreme Court:
There is no automatic right of an accused to appeal to the Supreme Court in capital cases.
This is so even where the trial court may have awarded life imprisonment but the High Court has
enhanced the sentence to death. The sole exception in law is made for cases where the High Court
overturns an acquittal and awards the death penalty, where Section 379 Cr.P.C. provides for
mandatory appeal to the Supreme Court.

P.I.L. in capital Cases:

While the Supreme Court had entertained a petition filed in the public interest by a social
activist seeking commutation of a death sentence on the grounds of delay in Madhu Mehta v.
Union of India and ors 3., the Court has subsequently refused to entertain such public interest
petitions despite similar (if not more serious) grounds in Ashok Kumar Pandey v. the State of West
Bengal and ors 4. Though, the Supreme Court had previously also dismissed third – party petitions
in Simranjit Singh Mann V Union of India 5 and Karamjeet Singh v. Union of India 6, in these two
cases the condemned prisoners had themselves given oral and written instructions that no petitions
should be filed in the courts or for mercy on their behalf. The restriction on third party intervention

3
AIR (1989) SC 2299
4
AIR (2004) SC 280
5
AIR (1991) SC 280
6
AIR (1993) SC 284

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was extended even to the National Commission for Women, which sought to intervene in the case
of Panchi and ors v. State of Uttar Pradesh 7, where one of the accused was a woman with a suckling
child. The Supreme Court observed that, “under the Code of Criminal Procedure, National
Commission for Women or any other organization cannot have locus stand in this murder
case.”Where petitions have been filed by fellow prisoners, the Supreme Court has been more open.
Thus, in Daya Singh v. Union of India and ors 8 a letter sent by a prisoner incarcerated in Calcutta
who read a reference to the delay on death row in Daya Singh’s case was converted into a petition
by the Court. Similarly, in Sukumar Barman alias Sulku and anr. Through Chander Kumar Banik
v. State of West Bengal 9, the Supreme Court accepted a postal communication
filed by a fellow death row prisoner, Chandra Kumar Banik, as a petition. 10

7
A.I.R (1998) SC 2726
8
A.I.R. (1991) SC 1548
9
A.I.R. (1994) SCC (Cri) 36
10
http:// www.amnesty.orglen/ library/asset/ASA20/007/2008/en/f8d94e73-16dc-11dd-89e2-354
ccbabfb/asa2002008eng.html)

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 Death Sentence and Judicial Trends
The abolitionists see this provision a green signal for dilution of capital punishment while
for the retentionists the special reasons contemplated by section 354 (3) implicitly suggest, that
death Sentence is legally and constitutionally permissible. In the case of Kunju Janardhanam v.
State of Andhra Pradesh 11, the accused, infatuated by the charm of a village girl committed brutal
murder of his innocent wife and his two minor sons while they were asleep in dead of night. The
girl on her part had warned the accused though her letters not to destroy his happy family life by
the illicit intimacy but the accused paid no heed and chose to commit triple murder with extreme
depravity. Although the majority by 2:1 commuted death sentence to that of imprisonment for life
Mr. Justice A.P. Sen. in his dissenting judgment disagreed with the majority and, observed: “The
accused who acted as a monster, did not even spare his two Innocent minor children in order to
get rid of his wife and issues through her if death sentence was not to be awarded in a case like
this I do not see the type of offences which call for death sentence”.
Mr. Justice Krishna Iyer of the Supreme Court of India however, made it clear in Rajendra
Prasad v. State of UP 12that where the murder is deliberate premeditated cold – blooded and
gruesome and there are no extenuating circumstances, the offender must be sentenced to death as
a measure of social defense.
In a way Rajendra Prasad’s case provided an appropriate opportunity for the Supreme
Court to express its view on need for dilution of death penalty in the context of Indian society
Citing extensively from Anglo American literature’ available on the subject and the relevant case
law. Mr. Justice Krishna Iyer tried to derive at the point that special reasons referred to under
Section 354 (3) of the Code of Criminal Procedure must be liberally construed so as to limit; death
penalty only to rare categories of cases such as white-collar crime anti – social offences like
hijacking or selling of spurious liquor, etc. and hardened murderers. Justice Krishna Iyer
emphatically stated that by and large murders in India are not by a calculated professionally cold
– blooded planning but something that happens on the spur of the moment due to sudden
provocation passion family feud or an altercation etc. motivates one to go to extreme and commit
the crime and therefore, there are prospects for reformation of the offenders if they are not done
away to death.

11
Cri.Appeal no.511 of 1978 disposed of along with Rajendra Prasad case. A.I.R.1979 S.C. 916
12
A.I.R. (1979). S.C.916

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 The Supreme Court reiterated its approval for death sentence once again in its decision in
Chopra Children murder case. 13 In this case the accused Kuljeet Singh alias Ranga along with one
Jashbir Singh alias Billa committed gruesome murder of two teenage children Gita Chopra and
her brother Sanjay in a professional manner and was sentenced to death by Additional District
Judge, Delhi. The High Court confirmed the conviction and death sentence whereupon appellant
moved in appeal to Supreme Court. Dismissing the appeal, the Supreme Court upheld the
conviction and sentence of the accused on the ground that the murder was preplanned, cold –
blooded and committed in most brutal manner; hence there were no extenuating circumstances
warranting mitigation of sentence.
In yet another case, namely, Javed Ahmad Abdul Hamid Paivala v. State of Maharashtra,
the Supreme Court upheld the sentence of death for a gruesome and brutal murder. 14 In the instant
case the appellant was convicted for multiple murders. He killed his sister-in-law aged 23 years,
his little niece aged 3 years, his baby nephew aged about one and half years and the minor servant
aged about 8 years. The motive of murders was the golden ear rings and bangles of the deceased.
The sister- in-law sustained 20 stab injuries, niece 13 stab wounds, servant 8 incised wounds and
baby niece 3 injuries the accused was convicted for murder, and sentenced to death. His conviction
was upheld by the High Court. He thereupon moved an appeal to the Supreme Court only on the
question of sentence. Dismissing his appeal, the Supreme Court, inter alias observed:
“The appellant acted like a demon showing no mercy to his helpless victims three of whom
were helpless little children and one a woman. The murders were perpetrated in a cruel, callous
and fiendish fashion. Although the appellant was 22 years of age, and the case rested upon
circumstantial evidence, the Court was unable to, refuse to pass the sentence of death as it would
be stultifying the course of law and justice. It was truly the rarest of rare cases’ the Court had no
option but to confirm the sentence of death.”
A year later, the Supreme Court was once again called upon to settle the controversy over
choice between death penalty and imprisonment for life but this time by a larger Bench of five
Judges Overruling its earlier decision in Rajendra Prasad, the Court by a majority of 4 to 1 majority
view taken by Mr. Justice Y.V. Chandrachud, J. Sarkaria, Gupta and Untavalia, JJ. While
Bhagwati, J. dissenting expressed a view that death sentence as an alternative punishment for

13
A.I.R. (1981) SC1572
14
A.I.R. (1983) SC 594

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murder is not unreasonable and hence not violative of Articles 14, 19 and 21 of the Constitution,
because the “Public Order” contemplated by clause (2) to (4) of art.19 is different from “law and
order”. Justifying retention of death penalty as an alternative punishment in reference to Section
354 (3) of the Code of Criminal Procedure, 1973.
In the notorious Joshi Abhyankar murder case 15 the accused committed a series, of
gruesome murders during January, 1976 and March, 1977. They were sentenced to death by the
trial Court which was confirmed by the Bombay High Court on 6 April, 1979. The appellants
thereupon filed special leave petitions before the Supreme Court for commutation of death
sentence to one of life imprisonment as the ‘death’ was hovering over their minds for five years.
Two of the petitioners, namely, Shanta Ram Jagtap and Munawar Shah pleaded that during this
period, they had written a book entitled “Kalyan Marg” in Marathi and translated “Sukshmaya
Vyayar”. Written in English by Dhirendra Bramhachari into Marathi. Dismissing the petitions, the
Supreme Court observed that the book writing and translation work of the petitioners believed that
any specter of death penalty was hovering over their minds during the period they have been in
jail. Therefore, any mercy shown in matter of sentence would not only be misplaced but will
certainly give rise to and foster a feeling of private revenge among the people leading to
destabilization of society.
The execution of death sentence by public hanging was held: as barbaric and violative of
Art. 21 of the Constitution even, if the Jail Manual were to provide public hanging, it would be
declared unconstitutional.
In Kamta Tiwari v. State of M.P.16 the accused committed the rape on a seven years old
girl and strangulated her of death. He threw her body in a well and caused disappearance of
evidence. The accused was convicted for the offences under Sections 363, 376, 302 and 201, IPC
and was sentenced to death by the trial court and the sentence was maintained by the High Court
also. In appeal, the Supreme Court upheld the decision of the lower courts and held that this is a
‘rarest of rare cases’ where the sentence of death is eminently desirable not only to deter others
from committing such atrocious crimes but also to give emphatic expression to society’s
abhorrence of such crimes. The Court, inter alia observed.

15
A.I.R. (1987) SC.585
16
A.I.R. (1996) SC 2800

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 “Before opting for death penalty, the circumstances of the offender also require to be taken
into consideration along with the circumstances of the crime. A balance – sheet of aggravating and
mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to
be accorded full weight age and a just balance has to be struck between the aggravating and
mitigating circumstances before the option is exercised”.
In yet another case, Ravji alias Ram Chandra v. State of Rajasthan 17 the Supreme Court
found no justification in commuting the death penalty to imprisonment for life. In this case, the
accused had committed murder of five persons including his wife and three minor children and
attempted to commit murder of two others. The act was committed in cool and calculated manner
while victims were asleep. There was absence of provocation or any psychic disorder which could
be attributed to these brutal and heinous murders. Therefore, the Court found no Justification to
commute the death penalty to imprisonment for life and dismissed the appeal. In Geneta
Vijayavardhan Rao & another v. State of Andhra Pradesh, 18 the two appellants were accused of
setting up a super express: bus on fire by sprinkling petrol with the motive of plundering the
passengers. This resulted into roasting 23 passengers to death besides & a number of
passenger’s sustained serious burn injuries. The defense plea was that the accused were young and
their prime motive was not murder but plundering property and wealth was not considered
sufficient enough to constitute mitigating. Circumstances warranting commutation of death
sentence to that of imprisonment for life. The Apex Court ruled that considering the overall picture,
the case was one of the rarest of rare case not merely because of record number of innocent human
beings roasted. Alive but the inhuman manner in, which the Scheme of crime was plotted and
executed.
In Manohar Lal alias Munna & another v. State of Delhi, 19 the two accused (appellants)
killed four sons in presence of the sole eye-witness; the mother by setting them ablaze the incident
was the result of the carnage fuelled by the assassination of Mrs. Indira Gandhi which scored a
heavy toll on Sikh community in Delhi. The accused were convicted, for offences under Sections
302 and 396 read. With Section 149 IPC by the Session Court and sentenced to death on the first
count and to life imprisonment on the other The High Court of Delhi confirmed. The conviction

17
A.I.R. (1996) SC787
18
A.I.R. (2000) SC 420
19
A.I.R. (1996) SC 2791

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and sentence thereupon the appellants filed the criminal appeal by special leave. The Supreme
Court held that the act of accused though gruesome, they had no special or personal enmity
towards. The deceased persons it was the assassination of Prime Minister Indira Gandhi which had
& blind folded the accused, it could be said that the act of the mob of which the appellants members
were only the result of a “temporary frenzy”. Therefore, sentencing accuses to death would not be
proper in the instant case and as such it is altered to that of imprisonment for life.
In Dhananjoy Chatterjee alias Dhana v. State of West Bengal, 20 the appellant was found
guilty of committing rape and murder of a school going 18 years old girl in retaliation for his
transfer as a security guard to some other building complex, on the complaint by the deceased girl
to her parents that the appellant was teasing and harassing her. His appeal having failed in the High
Court and the Supreme Court and the mercy appeal being rejected by the Governor of West Bengal
and also the Hon’ble President of India, he was finally hanged till death on 14th August 2004 in
Alipore Jail of West Bengal in execution of his death sentence. The facts of the case were
asfollows:
The appellant was security guard deputed to guard the building Anand Apartments.
Deceased had made complaint about the teasing by the appellant to her mother previously also and
her father requested to replace the appellant and accordingly he was transferred to Paras apartment.
Anguished from this, the appellant entered the house in the absence of other members, committed
rape and killed her. She was found dead on the floor with her skirt and blouse pulled up and her
private parts and breast were visible with patches of blood near her head and floor. According to
medical evidence, hymen of the deceased showed fresh tear with fresh blood in the margins and
blood stains on the vagina and matted public hair. It is settled law that when the case is based on
circumstantial evidence, the motive also gets importance. In the circumstance the chain of the
evidence was so complete that it led to the guilt of the accused. The High Court rightly upheld the
conviction and sentence of death.
Thus, the ill-fated victim Hetal Parekh was raped and murdered on March 5, 1990 between
5.30 and 5.45 pm. In her Flat No. 3A, on the third floor of Anand Apartment. The appellant was
charged and tried for rape and murder and also for an offence under Section 380, I.P.C. for
committing theft of a wrist-watch from the said flat. The learned Additional Session Judge found
him guilty and convicted the appellant (i) for an offence under Section 302 I.P.C. and sentenced

20
Cr.Appeal no. 393- 394 of 2004 decided on 2 6-03-2004

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him to death, (ii) for an offence under Section 376 I.P.C. and sentenced him to imprisonment for
life, and (iii) for the offence under Section 380 I.P.C., he was sentenced to undergo rigorous
imprisonment for, five years. The substantive sentences under sections 376 and 380 I.P.C. were
ordered to, run concurrently but were to cease to have any effect, in case the sentence of death for
conviction of the appellant under section. 302 I.P.C.was confirmed by the High Court and the
appellant was executed. Reference for confirmation of the death sentence was accordingly made
to the High Court. The appellant also preferred an appeal against his conviction and sentence in
the High Court. The criminal Appeal filed by the appellant was dismissed and the sentence of
death was confirmed by the High Court. On special leave being granted, the appellant, Dhananjoy
Chatterjee alias Dhana, filed an appeal.
There were no eye witnesses of the occurrence and the entire case rested on, circumstantial
evidence in a case based, on circumstantial evidence, the existence of motive assumes significance.
Though absence of motive does not necessarily discredit the prosecution case if the case stands
otherwise established by other conclusive circumstances and the chain of such evidence is
complete and takes one irresistible conclusion about the guilt of the accused. In this case there was
ample evidence on record to show that the appellant had a motive to commit the alleged crime and
therefore the Court rightly found. The accused guilty of aforesaid offences. Abscondence of the
accused was sufficient to support the case against him. The Court, therefore, rejected the belated
and vague plea of alibi which it considered to be only an afterthought and a plea in despair. The
Court held that prosecution has successfully established that the appellant alone was guilty of
committing rape of Hetal and subsequently murdering her.
As to the question of sentence, the trial Court awarded the sentence of death and the High
Court confirmed the imposition of capital, punishment for the offence under section. 302 of I.P.C.
for the murder, of Hetal Parekh. Learned counsel submitted that appellant was, a married man of
27 year of age and there were no special reasons to award the sentence of death on him. It was
further submitted that keeping in view the legislative policy discernible from Section 235 (2) read
with Section. 354 (3) of Cr.P.C. the Court may make the choice of not imposing the extreme
penalty of death. On the appellant and give him a chance to become a, reformed member of the
society in keeping with the concern, for the dignity of human life. The learned counsel for the
State, on the other hand canvassed for confirmation of the sentence of death so that it serves as a
deterrent to similar depraved minds. According to the learned State counsel there were no

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mitigating circumstances; and the case was undoubtedly “rarest of the rare’’ case where the
sentence of death alone would meet the ends of justice. The Court observed as flows:
“We have given, our anxious consideration to the question of sentence keeping in view the
changed legislative policy which is patent from Section 354 (3) Cr. P.C. We have also considered
the observation of this Court in Bachchan Singh v. State of Punjab. 21 But in recent years, the rising
crime rate particularly violent crime against women has made the criminal sentencing by the courts
a subject of concern. “Today there is admitted disparities. Some criminals; get Very harsh
sentences while many receive grossly different sentence for an essentially equivalent crime and a
shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate
making justice suffer by weakening the system’s credibility. Of course, it is not possible to lay
down any cut and dry formula relating to imposition of sentence but the object of sentencing should
be to see that the crime does not go unpunished and the victim of crime as also the society has the
satisfaction that justice has been done to it. In imposing sentences in the absence of specific
legislation, Judges must consider variety of factors and after considering all those factors and
taking an overall view of the situation, impose have also to be taken into consideration.
The Court further observed: “In our opinion, the measure of punishment in a given case must
depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and
unprotected state of the Victim. Imposition of appropriate punishment is the manner in which the
courts respond to the society’s cry for justice against the criminals. Justice demands that courts
should impose punishment befitting the crime So that the courts reflect public abhorrence of the
crime. The Court must; not only keep in view the rights of the criminal but also the rights of the
victim of crime and the society at large while considering imposition of appropriate punishment”.
According to the Hon’ble Court, The sordid episode of the security guard sacred duty was
to ensure the protection and welfare of the inhabitants the flats in the apartment, should have
subjected the deceased ,a resident of one of the flats, to gratify his lust and murder her in retaliation
for his transfer on her complaint, makes the crime even more heinous Keeping in view the medical
evidence and the state in which the body of the deceased was found it is obvious that a most
heinous type of barware rape and murder was Committed on a helpless, and defenseless school
going girl of 18 years If the security guards behave in this manner who will guard the guards. The
faith of the society by such. A harb Arica act of the guard gets totally shaken and its cry for justice

21
A.I.R. (1983) SC 898

14 | P a g e
becomes loud and clear. The offence was not only inhuman and barbaric but it was a totally ruthless
crime of rape followed by cold blooded murder and an affront to the human dignity of the society.
The savage nature of the crime has shocked our judicial conscience. There are no extenuating or
mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for the
dignity of human life is required to be kept in mind by the Courts while considering the
confirmation of the sentence of death but a cold blooded preplanned brutal murder without any
provocation after committing rape on and innocent and defenseless young girl of 18 years by the
security guard certainly makes this case a “rarest of the rare” cases which calls for no punishment
other that the capital punishment and we accordingly confirm the sentence of death imposed upon
the appellant for the offence under Section 302 IPC. The order of sentence imposed on the
appellant by the courts below for offences under Sections 376 and 380 IPC are also confirmed
along with the directions relating; thereto as in the event of the execution of the appellant those
sentences would only remain of academic interest. This appeal fails and is hereby dismissed.

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 Delay in execution of Death Sentence
A survey of available case laws on death sentence would reveal that the attention of the
Supreme Court was focused on the question whether inordinate delay, in the execution of death
penalty can be, considered to entitle the convict to claim commutation of the sentence to that of
life imprisonment. In Triveniben v. State of Gujarat, 22 the five Judges Bench of the Supreme Court
overruled Vetheeswaran’s and Jawed Ahmed to the extent they purported to lay down the two
years delay rule, and held that no fixed period of delay could be held to make the sentence of death
inexecutable. The Court, however, observed that it would consider such delay as an important
ground for commutation of the sentence.
In Madhu Mehta v. Union of India 23 the Supreme Court held that a delay of eight years in
the disposal of mercy petition would be sufficient to justify commutation of death sentence to life
imprisonment since right to speedy trial is implicate in article 21 of the constitution which operated
through all the stages of sentencing mercy petition to the president.
In State of UP v. Ramesh Prasad Misra, 24 the Supreme Court reduced the death sentence
of the accused to one of imprisonment for life in view of long lapse of time from the date of
commission of crime. The incident had occurred on the intervening night of September 26/27,
1985 in Karwi town of Banda district of U.P. The accused was a practicing advocate who had
committed horrendous bed – room murder of his 28 years old wife whom he had married only 5
months ago. He was found guilty of offence under Sections 300 and 498-A (i.e., dowry death) and
his plea of alibi was not established hence he was convicted on the basis of circumstantial evidence
and sentenced to death.

22
A.I.R. (1989) SC 1335
23
A.I.R. (1989) Cr.L.J.2321
24.A.I.R. (1997) SC 2766

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 Constitutional Validity of Death Penalty
S.367(5) of the Criminal Procedure Code, 1898, prior to its amendment in 1955, required
a court sentencing a person convicted of an offence punishment with death to a punishment other
than death to state the reasons why it was not awarding death sentence. The amendment deleted
this provision but there was so indication in either the Cr.P.C. or the Indian Penal Code, 1860
(I.P.C.) as to which cases called for life imprisonment and which the alternative death penalty. The
Law Commission of India in 1967 undertook a study of death penalty and submitted its 35 the
Report to the government. It justified its conclusion for retention of death penalty thus:
Having regard to the conditions in India, to the variety of social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the vastness of
its area, to the diversity of its population and to the paramount need for maintaining law and order
in the country at the present juncture, India cannot risk the experiment of abolition of capital
punishment.
Article 21 of Constitution Says no person shall be deprived unless by procedure established
by law- That utters Deprivation of life of any person is sanctioned validated and approved by way
of legality.
Imposing of death sentence is one thing that always gets more attention to be discussed,
including from the view of constitutional validity in each countries. A serious discussion regarding
to death sentence in Indonesia, whether it should be continued or abolished, has come up before
the Court after some applicant applied a petition to Indonesian Constitutional Court in order to
challenge the constitutionality of death penalty in Drugs and Narcotic Act against the provision of
Rights to Life on Indonesian Constitution, 1945. This article is the first chapter of several other
chapters with the topic of “death penalty” which will be flattened on the following days.
The provision of death penalty as an alternative punishment for murder under302, IPC Was
challenged as constitutionally invalid being violate of Arts. 14, (2) 19(3) and 21Of the Constitution
in a series of cases. It was contended in Jagmohan Singh v. State of U.P. 25 That the constitutional
validity of death sentence has to be tested with reference to Arts. 14 and 19 besides Art. 21 of the

25
A.I.R.1973(1) SCC20

17 | P a g e
Constitution as the right to life is fundamental to the enjoyment of all these freedoms as contained
in Art. 19 of the Constitution.
It was further contended that the Code of Criminal Procedure prescribed the procedure of
finding guilt of an accused but regarding the sentence to be awarded under S. 302, I.P.C. the
unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be
awarded. The Supreme Court held that the death sentence as an alternative punishment under
S.302, I.P.C. is not unreasonable and it is in the public interest and the procedural safeguard
provided to the accused under the Code of Criminal Procedure is not unreasonable leaving the
discretion with the judge to sentence an accused, convicted for murder either to death or life
imprisonment Death sentence as an alternative punishment for life was held valid.
Though the court did not accept the contention that the validity of the sentence to death has
to be tested in the light of Art. 14 and 10 of the Constitution. But in Rajendra Prasad v. State of
U.P. 26 the court accepted the proposition that the validity of the death sentence can be tested with
reference to Arts. 14, 19 and 21 of the Constitution. The Supreme Court suggested that in
exceptional circumstances death sentence should be imposed only when public interest, social
defense and public order would warrant. Such extreme penalty should be imposed in extreme
circumstances. The court in Bachchan Singh v. State of Punjab 27 upheld that constitutional validity
of death sentence. The court reasoned that penal law does not attract Art. 19(1) of the Constitution.
If the impact of the law on any of the-rights under Art. 19(1) is merely incidental, indirect, remote
or collateral, Art. 19 would not be available for testing its validity.
Accordingly, the court held that S.302 I.P.C. for its validity would not require qualifying
the test of Art. 19. The procedure provided in the Code of Criminal Procedure for imposing capital
punishment for murder cannot be said to be unfair, unreasonable and unjust. But Justice Bhagwati
in his dissenting judgment held that S. 302, I.P.C. and S. 354 (3), Cr. P.C. violation of Arts. 14 and
21 as these provisions confers unguided power on the court which irrational and arbitrary. Thus,
death sentence should be imposed in the rarest of the rare case.
The Supreme Court in Machchi Sing v State of Punjab 28 laid down the broad outlines of
the circumstances when death sentence should be imposed. It should be considered whether there

26
A.I.R. (1973) SC 947
27
A.I.R. (1979) SC 917
28
A.I.R. (1980) SC 898

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is something uncommon about the crime and the compelling circumstances for imposing death
sentence after giving maximum weight age of the mitigating circumstances which is favors of the
accused.
Jumman Khan was facing the gallows on being sentenced to death for having brutally raped
and strangulated to death a six-year-old girl named Sakina. The convict challenged the death
sentence and its constitutionality. 29 It was argued that death penalty is not only outmoded,
unreasonable, cruel and unusual punishment but also defies the dignity of the individual and the
issue needs reconsideration which stands like sentinel over human misery, degradation and
oppression. The Supreme Court while endorsing its earlier view as to the constitutionality of death
sentence held that the failure to impose death sentence is such grave cases here it is a crime against
the society, particularly in case of murders with extreme brutality will bring to naught the sentence
of death penalty provided by s. 302 of I.P.C. The only punishment which the convict deserves for
having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust
is nothing but death as a measure of social necessity and also a means of deterring other potential
offenders.
The Supreme Court in earlier case Bachchan Singh v. State Punjab 30 judge upheld the
constitutional validity of imposition of death sentence as an alternative to life imprisonment and it
was further that it is not violate of Arts. 14 and 21 of the Constitution. Chief Justice Chandrachud
expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjab31
held that death sentence is constitutionally valid and permissible within the constraints of the rule
in Bachchan Singh. This has to be accepted as the law of the land. The decisions rendered by this
court after full debate has to be accepted without mental reservation until they are set aside.
The challenge touching the constitutionality of the death sentence also surfaced in
Triveniben v State of Gujarati40 and in Allauddin’s case 32 and the Supreme Court asserted
affirmatively that the Constitution does not prohibit the death penalty.
It is in the rare cases, the legislature in its wisdom, considered it necessary impose the
extreme punishment of death to deter others and to protect the society. The choice of sentence is
left with the rider that the judge may visit the convict with extreme punishment provided there

29
Jumman Khan v. State of U.P. A.I.R(1991) SC 345
30
A.I.R(1982) SC 1325: (1982) 3SCC 24
31
A.I.R. (1983) SC 465: (1983) 2SCC 344
32
A.I.R. (1989) SC 1335: (1989) 1 SCC 678

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exist special reasons for doing so. The provision of Art. 302, I.P.C. is consistent with the
Constitutional Provision of Art. 21 which enjoins that personal liberty or life of an individual shall
not be taken except according to the procedure established by law. Whether death penalty violates
Art. 14,19, and 21 of the Constitution came up for consideration before the Supreme Court in
Bachchan Singh v. State of Punjab 33 and the court answered the contention in the negative.
In the face of the statutory provision in cl.(3) of s. 354 of the Cr. PC requiring giving of
special reason while imposing death penalty which is consistent with Art. 21 of the Constitution
which enjoins that the personal liberty or life of an individual shall not be taken except according
to the procedure established by law, the extreme plea of death in no case cannot be countenanced
and death penalty cannot be said to be violate of Art. 21 of the Constitution. Section 302, IPC casts
a heavy duty on the court to choose between death sentence and imprisonment for life and court
must show high degree of concern and sensitiveness in the choice of sentence. It was held in
Allauddin Mian v. State of Bihar 34 that special reason in s. 354, Cr. PC should be sufficient safe
guard against arbitrary imposition of extreme penalty. Where a sentence of severity is imposed, it
is imperative that the Judge should indicate the basis upon which he considered the sentence of
that magnitude justified.
That is all about the constitutionality aspects of death penalty according to the
interpretation of Supreme Court on Indian Constitution; the decisions of Indian Supreme Court
that I have discussed above, however, couldn’t be throughout adopted in Indonesia. But, some of
its reasoning can be considered as guidance for any Indonesian stakeholders.

33
A.I.R. (1980) SC 898: (1980) 2 SCC 684
34
A.I.R. (1989) SC 1457

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 CONCLUSION
Mohammed Ajmal Amir Kasab, the sole surviving perpetrator of 26/11 terror attack, convicted
and ordered to be sent to gallows by a special Mumbai anti terror court thursday is one more
addition to the over 300 people on death row in India.
Some of the prominent ones on the death row are:
• Mohammed Afzal Guru. Awaiting death sentence for his role in
Dec 13. 2001, terror attack on Indian Parliament,
• Khalistan Liberation Force terrorist...Davinder Singh.Bhullar,
convicted for killing nine people and injuring 31.
• Murugan, Santhan and Perarivalan alias Arivu, convicted for the
assassination of former prime minister Rajiv Gandhi in 1991.
• Former Youth Congress leader Sushil Sharma, for the murder of
his wife Naina Sahni and later disposing of her body in tandoor
(clay oven) of a restaurant July 2, 1995.
• Former senior police officer’s son Santosh KumarSingh, for raping
and killing his law college colleague Priayadarshini Mattoo in 1996.
• Three AIADMK workers - Nedunchezhian(41), Muniappan (52)
and Ravindran (also known as Madhu, 44) - for setting ablaze a
bus and killing three students, in Tamil Nadu,s Dharmapuri city in
2000.
• Former Lok Sabha MP Anand Mohan Singh, former Bihar minister
Akhlaq Ahmed and former state legislator Arun Kumar for lynching
to Death Gopalganj district magistrate G. Krishnaiah in the state in
1994.
• Pawan Kumar Mittal, A petrol pump owner in Uttar Pradesh.
Lakhimpur Kheri for killing Indian Oil Corporation officer
S.Manjunath in November 2005.
• Babbar Khalsa militants, Jagtar Singh Hawara and Balwant Singh
Rajoana for assassinating then Punjab chief minister Beant Singh
in 1995.

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