DEATH PENALTY: A LEGAL INSIGHT INTO IT’S NUANCES

CRIMINOLOGY
ASSIGNMENT
TOPIC- DEATH PENALTY: A LEGAL
INSIGHT INTO IT’S NUANCES

SUBMITTED TO:

MR. RASHID CA SIR

SUBMITTED BY: SUFIYAN SIDDIQUI

BA.LLB (Hons.) 5TH Sem.

Faculty of Law,

Jamia Millia Islamia.

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ACKNOWLEDGEMENT

It gives me a great pleasure to present this project on

CRIMINOLOGY strictly in manner under the guidance of our

learned Professor,

I have made sincere efforts to make the assignment more

meaningful, complete, compact and comprehensive. It’s a great

pleasure to bring my feeling into notice and practice .At last I give

him special regards for the valuable suggestions and efforts without

which this assignment could not have been completed.

With Regards,

-Sufiyan Siddiqui

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INDEX
1.Introduction

2.Crime and Punishment

3. Death penalty

History

Rarest of the rarest case

Legality of Death Sentence

Reasonableness of Death Sentence

Whether death Penalty serves any penological purpose?

When can Death Sentence be granted

Judicial Discretion

Need For Guidelines

Death Sentence For The Offence Of Rape

Mitigating Circumstances

Conviction of a minor

Conviction Of A Pregnant woman

Lesser Sentence To Co- Accused

Delay in execution of the death sentence

Reasons the death penalty should be abolished

Arguments for and Against the Death Penalty

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INTRODUCTION:
Each society has its own way of social control for which it frames certain laws and
also mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The
first thing to mention in relation to the definition of punishment is the ineffectiveness of
definitional barriers aimed to show that one or other of the proposed justifications of
punishments either logically include or logically excluded by definition.’

Punishment has the following features:

1) It involves the deprivation of certain normally recognized rights, or other

measures considered unpleasant.

2) It is consequence of an offence.

3) It is applied against the author of the crime.

4) It is applied by an organ of the system that made the act an offence.

The kinds of punishment given are surely influenced by the kind of society one lives in.
Though during ancient period, punishment was more severe as fear was taken as the prime
instrument in preventing crime. But with change in time and development of human mind the
punishment theories have become more tolerant to these criminals. Debunking the stringent
theories of punishment the modern society is seen in loosening its hold on the criminals. The
present scenario also witnesses the opposition of capital punishment as inhumane, though it
was a major form of punishing the criminals earlier. But it may also be observed till recently
the TALIBANS used quite a harsh method for suppression. The law says that it does not
really punish the individual but punishes the guilty mind.

As punishment generally is provided in Criminal Law it becomes imperative on our part to

know what crime or an offence really is. Here the researcher would like to quote Salmond’s
definition of crime, which says, Crime is an act deemed by law to be harmful for the society

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as a whole though its immediate victim may be an individual. He further substantiates his
point of view through the following illustration a murderer injures primarily a particular
victim, but its blatant disregard of human life puts it beyond a matter of mere compensation
between the murderer and the victim’s family.

Thus it becomes very important on behalf of the society to punish the offenders. Punishment
can be used as a method of reducing the incidence of criminal behavior either by deterring the
potential offenders or by incapacitating and preventing them from repeating the offence or by
reforming them into law-abiding citizens. Theories of punishment contain generally policies
regarding theories of punishment namely: Deterrent, Retributive, Preventive and
Reformative. Punishment, whether legal or divine, needs justification. Many a time this
punishment has been termed as a mode of social protection. The affinity of punishment with
many other measures involving deprivation by the state morally recognized rights is generally
evident. The justifiability of these measures in particular cases may well be controversial, but
it is hardly under fire. The attempt to give punishment the same justification for punishment
as for other compulsory measures imposed by the state does not necessarily involve a
particular standpoint on the issues of deterrence, reform or physical incapacitation. Obviously
the justification in terms of protection commits us to holding that punishment may be
effective in preventing social harms through one of these methods.

As punishments generally punish the guilty mind it becomes very important to clarify as to
what crime really is. But it is quite difficult to say whether or not there must be any place for
the traditional forms of punishment. In today’s world the major question that is raised by
most of the penologist is that how far are present ‘humane’ methods of punishment like the
reformative successful in their objective. It is observed that prisons have become a place for
breeding criminals not as a place of reformation as it was meant to be.

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Crime and Punishment :

Crime is behavior or action that is punishable by criminal law. A crime is a public, as
opposed to a moral, wrong; it is an offence committed against (and hence punishable
by) the state or the community at large. Many crimes are immoral, but not all actions
considered immoral are illegal.

One can surely observe how closely crime and punishment are related. In different legal
systems the forms of punishment may be different but it may be observed that all arise out of
some action or omission. All these constitute all moral as well as legal wrongs such as
murder, rape, littering, theft, trespass and many more. As crime is quite different in different
geographical area it is quite evident that the forms of punishment would vary as it was
mentioned earlier that punishment as well as crime are socially determined. A type of action
may be a crime in one society but not in another. For example euthanasia is an offence in
India, but in many European countries such as Holland it is legalized. But there are certain
offences which are recognized almost universally like murder1.

Durkheim explains crime, as crime exists in every society which do and do not have laws,
courts and the police. He asserts that all societies have crime, since all societies involve a
differentiation between two kinds of actions, those that are allowed and those that are
forbidden. He calls the latter type criminal.

Law is the string that binds society, and he who attempts to break the string is a danger to the
society as a whole and dealt with sternly by the powerful arms of law. Punishment though
most times confused with imprisonment is something much different from it. Punishment
though most times confused only with sanctions may also be of moral nature like ostracism.

A complete definition will now be made in such a way as to include both legal and divine
punishment. A. Flew first suggests that punishment must be an evil, an unpleasantness to the
victim. J. Mabbot objects to the use of the word 'evil' in connection with punishment. He
maintains that 'evil' carries too much moral flavor and also that it suggests positive suffering.
Mabbot states: The world is a worse place the more evil there is in it and perhaps the more

1
Section 302 IPC,1860.

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Suffering2. But it does not seem to me necessarily a worse place whenever men are deprived
of something they would like to retain; and this is the essence of modern punishment. While
deprivation may be a more appropriate description of modern punishment this does not
necessarily exempt it from being an evil. Nor does the suggestion that 'evil' carries a moral
flavor, for in fact the word punishment itself carries a moral flavor. (Like 'evil', punishment is
not in itself a moral term but it is suggested that it usually occurs in an ethical context.)

While we must eventually come to some conclusion as to whether punishment is an evil, it

would be preferable at present to use, as does W. Moberly, the slightly more neutral term 'ill'.
Both of these thinkers of punishment believe that the offender must be answerable for any
wrong that he has done. K. Baier explains punishment as law-making, penalization, finding
guilty, pronouncing a sentence. In a legal context law-making is a necessary condition, but it
is possible to commit a wrongdoing intentionally although no law has been made, in fact it is
because certain acts are consideredwrong that laws are made in the first place. What is
important to note is that punishment is a conditional act and cannot be isolated from its total
context.

But Durkheim has a different approach to punishment altogether. He treats punishment as the
reaction of the society against a crime. According to him as if punishment be a proportionate
response to the harm caused to the society then the extent of the punishment inflicted must be
clearly sorted out. He also stressed on the point that punishment can never be calculated; it is
an intensely emotional- sense of outrage- the desire to exact punishment. He says, it is not the
specific nature or result of the offending action as such which matter, but the fact that the
action transgresses widely shared ad strongly held sentiments, whatever these might be in any
particular case. He explains that if punishment is a reaction of the society against the
offenders then it is generally in the form of an outrage or anger being reparative or
reformative becomes punitive. This approach of the society towards the criminals is what
makes us treat them as outcasts and treated as a deviant from the social norms. This two-fold
approach has been criticized severely by various penologists, as at one time there is the use of
both reformative and retributive theories.

2
https://www.lawctopus.com/academike/retributive-theory-of-punishment-a-critical-analysis/.

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Punishment and crime are very strange phenomena to deal with. It is only if the acts done are
within the course of the provisions provided under the Code then any benefits take out of it is
not questioned. But any action through which maybe the same benefit is gained still the
person may be punished as because his action was not within the scope of the provisions.
Also there are certain elements in the society who though do many immoral acts but as
because any provisions or sanctions are not mentioned so that they can be punished they
continue to do those act. One should not earn any benefits or satisfaction out of such acts.

The legitimacy of any form of has always been criticized. Though there are many legal
coercive measures but it is quite different from punishment. If the punishment were any
retribution to an evil done then regardless of any consequence it would try to end that evil in
itself. But if the objective of the punishment given is to prevent the crime from further
occurrence then it would rather than using coercive methods it would be using persuasive
measures and discourage the offender from committing that act in the future. Treating
punishment as a conventional device for the expression of resentment, indignation,
disappointment felt either by the sufferer and his family or the punishing authority as such
J.Feinberg argues that certain kinds of severe treatment become symbolic of the of the
attitudes and judgment of the society or community in the face of the wrongdoing, and
constitute a stigma which castes shame and ignominy on the individual on whom the
punishment is applied. The distinctiveness of the unpleasant measure could consist of the way
of executing them.

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DEATH PENALTY :
The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in
"the rarest of rare cases."

Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or
insane person, waging war against the nation, and abetting mutiny by a member of the
armed forces.

Since 1989, the death penalty has also been legal for a second offence of "large scale
narcotics trafficking". In recent years the death penalty has been imposed under new anti-
terrorism legislation for people convicted of terrorist activities. Recently the Indian
Supreme Court in Swamy Sharaddananda v. State of Karnataka3 made imposing the death
penalty even harder. The judgement holds that the “rarest of the rare” test prescribed in
Bachchan Singh’s case4 was diluted in the Machchi Singh case5. The judgement then goes
on to say that the “rarest of the rare” must be measured not only in qualitative but also in
quantitative terms.

India's top court has recommended the death penalty be extended to those found guilty of
committing so-called "honour killings" with the Supreme Court stating that honour killings
fall within the "rarest of the rare" category and deserves to be a capital crime.

3
2007 SC 649
4
Bachan Singh vs. State of Punjab (1980) (2 SCC 684) .
5
Machhi Singh And Others vs State Of Punjab (1983) AIR 957.

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HISTORY

Official government statistics claim that only 52 people had been executed since
independence, but the People's Union for Civil Liberties cited information has
suggested that the total number of executions since independence may be as high as
3,000 to 4,3006.About 29 mercy petitions are pending before the president, some of them
from 1992.

These include that of three assassins of Rajiv Gandhi (in a bombing which caused 14 deaths)
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, Gnan prakasham, Meesekar Madaiah and Bilvendran—for killing 21 policemen 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. Many more are on death row after having been
sentenced to die by lower courts, but on appeal most of them are likely to be commuted to
life imprisonment by the State High Courts or the Supreme Court of India. that due to the
absence of sentencing guidelines in what constitutes "rarest of the rare", in some less
gruesome murders, the lower courts have awarded death sentences possibly due to poor
defence presented by the lawyers of the economically backward.

6
Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-
2006

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The death penalty is carried out by hanging. After a 1983 challenge to this method, the
Supreme Court ruled that hanging did not involve torture, barbarity, humiliation, or,
degradation. Mohammad Afzal (Afzal Guru) was convicted of conspiracy in connection
with the 2001 Indian Parliament attack and was sentenced to death. The Supreme Court of
India upheld the sentence, ruling that the attack "shocked the conscience of the society at
large."Afzal was scheduled to be executed on October 20, 2006, but the sentence was stayed.
The Afzal case remains a volatile political issue.

On May 3, 2010, Ajmal Kasab was found guilty of numerous charges and was sentenced to
death on 4 counts. On Thu, May 6 02:18 PM a Mumbai Special Court, which conducted the
trial of 26/11 terror strikes, announced the death penalty for Ajmal Amir Kasab, the lone
surviving terrorist. The sentencing by Judge M L Tahiliyani makes Kasab the 52nd person on
death row in India. Kasab was handed capital punishment for killing 72 people and waging
war against the state.

In its recent judgment in Mulla Vs. State of UP7, the Supreme Court has continued with the
trend of emphasising the extremely limited scope of the rarest of rare doctrine first
formulated in Bachan Singh. Justice Sinha's contribution to the death penalty debate,
where he repeatedly emphasised the fundamental precondition in Bachan Singh---that
rarest of rare case will be one where 'the alternative option [of life imprisonment] is
unquestionably foreclosed.' We have also previously looked at his landmark judgment in
SantoshBariyar in some detail. Justice Sathasivam's judgment in Mulla seems to be informed
by a similar spirit. A few extracts from the judgment follow:

The following propositions emerge from Bachan Singh case

1. Punishment of death need not be inflicted except in gravest cases of extreme

culpability.
2. Before opting for the death penalty the circumstances of the `offender' also require
to be taken into consideration along with the circumstances of the `crime'.
3. Life imprisonment is the rule and death sentence is an exception.In other words
death sentence must be imposed only when life imprisonment appears to be
an altogether inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only provided, the option to impose
7
AIR 2010 SC 942.

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sentence of imprisonment for life cannot be conscientiously exercised having

regard to the nature and circumstances of the crime and all the relevant
circumstance.
4. 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 weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.

This Court in Bachhan Singh's v. State of Punjab8 has held that:"A real and abiding
concern for the dignity of human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed."Therefore, it is open for the court to grant a death
penalty in an extremely narrow set of cases, which is signified by the phrase `rarest of
the rare'. This rarest of the rare test relates to "special reasons" under Section 354(3) CrPC.
Importantly, as the Court held, this route is open to the Court only when there is no other
punishment which may be alternatively given. This results in the death penalty being an
exception in sentencing, especially in the case where some other punishment can suffice. It
was in this context that the Court had noted:"The expression "special reasons" in the
context of this provision, obviously means "exceptional reasons" founded on the
exceptionally grave circumstances of the particular case relating to the crime as well as
the criminal"

 Rarest of rare cases

To decide whether a case falls under the category of rarest of rare case or not was completely
left upon the court's discretion. However the apex court laid down a few principles which
were to be kept in mind while deciding the question of sentence. One of the very important
principles is regarding aggravating and mitigating circumstances. It has been the view of the
court that while deciding the question of sentence, a balance sheet of aggravating and
mitigating circumstances in that particular case has to be drawn. Full weightage should be
given to the mitigating circumstances and even after that if the court feels that justice
will not be done if any punishment less than the death sentence is awarded, then and
then only death sentence should be imposed.

8
Supra note 4.

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The principles laid down by the apex court in Machhi singh v. State of Punjab 9were
reiterated in it's latest judgment in Sushil Murmu Vs. State of Jharkhand:"In rarest of
rare cases, when the collective conscience of the community is so shocked that it will
expect the holders of the judicial power center to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of retaining death penalty,
death sentence can be awarded.” The SC has also discussed such circumstance in various
cases. These circumstances include:

1. Murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly

manner so as to arouse intense and extreme indignation of the community.
2. Murder for a motive which evinces total depravity and meanness.
3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrath
4. Bride burning/ Dowry death.
5. Murderer in a dominating position, position of trust or in course of betrayal of the
motherland.
6. Where it is enormous in proportion.
7. Victim- innocent child, helpless woman, old/infirm person, public figure generally
loved and respected by the community.

If upon taking an overall view of all the circumstances and taking in to account the answers
to the question posed by way of the test of rarest of rare cases, the circumstances of the case
is such that death penalty is warranted, the court would proceed to do so.
Another factor which unfortunately has been left out in much judicial decision-making in
sentencing is the socio-economic factors leading to crime. We at no stage suggest .that
economic depravity justify moral depravity, but we certainly recognize that in the real world,
such factors may lead a person to crime. The 48th report of the Law Commission also
reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt,
but they may amount to mitigating circumstances. Socio-economic factors lead us to another
related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to
note that a criminal who commits crimes due to his economic backwardness is most likely to
reform. This court on many previous occasions has held that this ability to reform amount to
a mitigating factor in cases of death penalty.

9
Supra note 5.

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Legality of Death Sentence

In Jagmohan v. State of U.P 10the question of constitutional validity of Sec. 302, I.P.C. was
discussed in detail by the SC. Apart from the constitutional validity, the SC also discussed
position in other countries, the structure of Indian Criminal law, various policies and bills
proposed in the parliament , the extent of Judicial discretion etc. On the question of
constitutional validity the Court observed:"The Cr.P.C. requires that the accused must be
questioned with regard to the circumstances appearing against him in the evidence. He
is also questioned generally on the case and there is an opportunity for him to say
whether he wants to say....... In important cases like murder, the Court always gives a
chance to the accused to address the Court on the question of Sentence. Under the
Cr.P.C. after convicting the accused, the Court has to pronounce the sentence according
to law.........." On all these grounds the SC rejected the argument that under Sec. 302, I.P.C.,
life of convict is taken without any procedure established by law & therefore, it violates Art.
21 of the constitution. Thus, the SC settled this controversy long back in 1973. However even
after Jagmohan's case this question came up again and again.

The SC reviewed Jagomhan's Case in the case of Bachan Singh Vs. State of Punjab11
because after Cr. P.C. 1973 , death sentence ceased to be the normal penalty for murder [ 354
(3)]. Another reason was that Maneka Gandhi's case12 gave a new interpretation to Art. 14,
19 and 21 and their interrelationship . Main issues before the SC were constitutional validity
of Sec. 302 of the I.P.C .as well as constitutional validity of Sec. 354 (3) of Cr.P.C.

10
AIR 1973 SC 947.
11
Supra note 4.
12
Maneka Gandhi v Union of India 1978 AIR 597 .

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Reasonableness of Death Sentence

The SC in the case of Bachan Singh Vs. State of Punjab13 observed- ".......if not
withstanding the view of the abolitionists to the contrary , a very large segment of people, the
world over, including sociologists , legislature , Jurists , judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary public opinion canalized
through the peoples representatives in parliament, has repeatedly including the one made
recently to abolish or specifically restrict the area of death penalty, if death penalty is still a
recognized legal sanction for murder or some types of murder in most of the civilized
countries in the world , if the farmers of the Indian constitution were fully aware of the
existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th
report and subsequent reports of law commission suggesting retention of death penalty, and
recommending revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354
(3) were before the Parliament when it took up revision of the Cr.P.C., it is not possible to
held that the provision of death penalty as an alternative punishment for murder, in sec.
302, Penal Code is unreasonable and not in the public interest. The impugned provision
in Sec. 302 , violates neither the letter nor the ethos of Article 19" .14

 Whether death Penalty serves any penological purpose?

The SC in the case of Bachan Singh v. State of Punjab15 considered a no. of opinions from
all over the world. Out of them, the opinion of Sir James Fitziames Stephen, the great Jurist,
who was concerned with the drafting of I.P.C. is very important to mention-

"No other punishment deters man so effectually from committing crimes as the
punishment of death”. This is one of those propositions which is difficult to prove simply
because they are in themselves more obvious than any proof can make them. In any
secondary punishment, however terrible, there is hope, but death is death, it's terrors cannot
be described more forcibly. "These views are very strong answers to the people who
oppose death punishment with the arguments that it does not serve penological
purpose”.
13
Supra Note 11.
14
Para 132.
15
Ibid.

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 When can Death Sentence be granted ?

As have been stated earlier, after Cr.P.C., 1973, death sentence is the exception while life
imprisonment is the rule. Therefore, by virtue of section 354(3) of Cr.P.C., it can be said that
death sentence be inflicted in special cases only. The apex court modified this terminology in
Bachan Singh's Case and observed: “A real and abiding concern for the dignity of human
life postulates resistance to taking a life through law's instrumentality. That ought to be
done save in the rarest of rare cases when the alternative option is unquestionably
foreclosed."

Judicial Discretion

For all the offences, in which death sentence is the punishment, it may be noted that it is
not the only punishment, it is the extreme penalty. Thus, these sections, by virtue of their
very wordings itself, provide for a discretion which is to be vested in the courts to decide
the quantum of punishment. So the ultimate judicial discretion to decide whether death
sentence is to be imposed or not , have been vested in courts right from the inception of
Penal Code in 1860. However the manner of exercising this discretion has undergone
various changes with the changing time and evolution of new principles. There is also a
debate going on, about the extent of this judicial discretion.

 Wide discretion

In Jagmohan's Case the SC held:-

" The structure of our criminal law which is principally contained in the IPC and the
CR.P.C. undertakes the policy that when the legislatures have defined an offence with
clarity and prescribed the maximum punishment, therefore a wide discretion in the
matter of fixing the degree of punishment should be allowed to judges." Thus the SC was
in favour of wide discretion to be given to judges for deciding the degree of punishment.
However, this vide direction was restricted by section 354(3) of Cr.P.C. 1973 which laid
down the law that for death sentence special reasons are to be recorded , meaning thereby ,
that death sentence is to be imposed in special cases only.

In a case the court observed :

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" The discretion to impose the sentence of death or life imprisonment is not so vide after
all section 354 (3) has narrowed the discretion . Death sentence is ordinarily ruled out
and can only be imposed for special reasons Judges are left with the task of discovering
' Special reasons'.

In the case of Dalbir Singh v. State of Punjab the court expressing its concern for the way
in which this discretion was being used ." Notwithstanding the catalogue of grounds
warranting death sentence as an exceptional measure, 'life' being the rule , the judicial
decisions have been differing (and dithering) at various levels with the result the need for a
through re-examination has been forced on courts by counsel on both sides" . .

In Bachan Singh's case this problem was solved by the apex court itself to a very large
extent.The court observed:" It is imperative to voice the concern that courts, aided by the
broad illustrative guidelines indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed along with high road of
legislative policy outlined in Sec. 354(3)....."

Need For Guidelines

A brief analysis of the cases decided by the SC. Regarding the question of death sentence
over last 25 years will reveal how differing/dithering the judgments have been.

 In Kurami alias Mutha v. State of Tamil Nadu16, the accused was a poor
agriculturist and had a wife and five children to support, but considering the murder
of two persons as brutal the death sentence was confirmed but this case was before
Bachan Singh's case, and till that time the principle of aggravating and initiating
circumstances was not laid down.
 While, in a brutal and dear case of bride burning the S.C. observed:
"From the judgment of the High Court, it is apparent that death sentence is awarded
more out of anger than on reasons.... Judicial discretion should not be allowed to be
swayed by emotion and indignation. Ultimately the death sentence was commuted to
life imprisonment."

16
1995 AIR 264.

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 In 1994, while deciding the case of Anshad v. State of Karnataka17, the SC

Commuted death sentence to life imprisonment while the accused was convict of a
brutal, diabolical murder. The sentence was commuted because the SC felt that there
are chances of reformation of accused. With due respect to the court's view, it is
submitted that there still remains a question creating doubts on such judgments as to
how to judge the chances of reformation of an accused in a particular case. However,
it can be done on the line of SC's judgment in Javed Ahmed Abdul Hamid passawa
v. State of Maharastra18 on this case. The death sentence of accused was affirmed in
1983, but later, on the basis of serious atonement, the SC commuted the sentence to
life imprisonment.
 Then comes the very important case of Mohd. Chaman v. State (N.C.T.) of Delhi19 .
In this case a one and half year old girl was raped by the accused, and because of
the henious act, she sustained serious injuries and died. H.C. confirmed the death
sentence awarded by the sessions Court. But the Hon'ble SC commuted the death
sentence into life imprisonment, observing:- "The crime committed is undoubtedly
serious and heinous and the conduct of the appellant is reprehensible . It reveals a
dirty and prevented mind of a human being who has no control own his carnal
desires.... We are not persuaded to accept that the case can be called one of the ' rarest
of rare cases' deserving death penalty. We find it difficult to hold that the appellant
is such a dangerous person that to spare his life will endanger the community. It
is our considered view that the case is one in which a humanist approach should
be taken in the matter of awarding punishment " on the question of extent of
judicial discretion, the court observed :

"Such standardization is well nigh impossible. Firstly degree of culpability cannot be

measured in any case. Secondly criminal cases cannot be categorized there being infinite,
unpredictable and unforeseeable variations. Thirdly in such categorization, the sentencing
procedure will cease to be judicial. And fourthly, such standardization or sentencing
discretion is policy matter belonging to the legislature beyond the courts functions" .

17
1994 SCC (4) 381.
18
1985 AIR 231.
19 Appeal (crl.) 68-69 1999.

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Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be
said that such wide discretion has resulted into enormously varying judgments, which does
not portray a good picture of the justice delivery system. What is needed to be done; therefore
is to revise and review the guidelines and principles laid down in cases like Bachan Singh or
Machhi Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the
present social scenario, then these guidelines have to be strictly complied with, so that the
persons convicted for offence of similar nature are awarded punishments of identical degree.

The Indian Supreme Court had another opportunity to rectify its position, when the case of V.
Mohini Giri v. Union of India20 was argued before it in 2002. In this case the petitioner had
sought "the issuance of a guideline as to what should be the appropriate approach in the cases
where one of the judges in the Bench of this Court while hearing an appeal against death
sentence, acquits the accused person". The Apex Court declined issuing such a guideline
arguing that it would curtail the judicial discretion of the bench.

 Death Sentence For The Offence Of Rape

In April 2000 the Government announced it would consider imposing the death penalty for
individuals convicted of rape21

State Of Uttar Pradesh v. Satish22

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.

 Lesser Sentence To Co- Accused

In cases where there are more than one accused, and murder has been committed by several
persons, under section 34 of IPC, the act done by one will be considered to be acts done by
all. So if a lesser sentence of life imprisonment is awarded to one accused, then the co-
accused should also generally be given the same sentence, unless it can be established that the
role of any one of them in the commission of the crime is more that of others.
20
2002 AIR SCW 5306
21
Hindustan Times 19 April 2000
22
08.2.2005

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In Wazir Singh v. State Of Punjab23the Supreme Court held that the distinction made in the
matter of sentence between the two accused was not justified. The death sentence of the other
accused was also reduced to the one transportation of life.

 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 Smt. Triveniben v. State of Gujarat24 the Supreme Court held that "....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.

23
AIR 1956 SC 754.
24
1989 AIR 1335.

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Reasons why the death penalty should be abolished:

It is a complex issue and it is difficult to point to any single fact or argument as the most
important.

Executions are carried out at staggering cost to taxpayers:

It costs far more to execute a person than to keep him or her in prison for life. A recent New
Jersey Policy Perspectives report concluded that the state's death penalty has cost taxpayers
$253 million since 1983, a figure that is over and above the costs that would have been
incurred had the state utilized a sentence of life without parole instead of death. "From a
strictly financial perspective, it is hard to reach a conclusion other than this: New Jersey
taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital
punishment system that has executed no one," the report concluded. Michael Murphy, former
Morris County, NJ prosecutor, remarked: "If you were to ask me how $11 million a year
could best protect the people of New Jersey, I would tell you by giving the law enforcement
community more resources. I'm not interested in hypotheticals or abstractions, I want the
tools for law enforcement to do their job, and $11 million can buy a lot of tools."

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There is no credible evidence that capital punishment deters

crime:
Scientific studies have consistently failed to demonstrate that executions deter people from
committing crime anymore than long prison sentences. Moreover, states without the death
penalty have much lower murder rates. The South accounts for 80% of US executions and
has the highest regional murder rate.

Millions currently spent on the death penalty could be used

to assist the families of murder victims.

Many family members who have lost love ones to murder feel that the death penalty will not
heal their wounds nor will it end their pain; the extended process prior to executions can
prolong the agony experienced by the family. Funds now being used for the costly process of
executions could be used to help families put their lives back together through counseling,
restitution, crime victim hotlines, and other services addressing their needs.

Life Without Parole is a Sensible Alternative to the Death Penalty

In every state that retains the death penalty, jurors have the option of sentencing convicted
capital murderers to life in prison without the possibility of parole. The sentence is cheaper to
tax-payers and keeps violent offenders off the streets for good. Unlike the death penalty, a
sentence of Life without Parole also allows mistakes to be corrected. There are currently over
3,300 people in California who have received this alternative sentence, which also has a more
limited appeals process last approximately 3 years. According to the California Governor's
Office, only seven people sentenced to life without parole have been released since the state
provided for this option in 1977, and this occurred because they were able to prove their
innocence.

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Recent cases

Dhananjoy Chatterjee alias Dhana v. State of West Bengal &Ors.25

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 Jharkhand26

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.

State of U.P. v. Satish27

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.

25
(1994) 2 SCC 220.
26
(2004) 2 SCC 338.
27Appeal (crl.) 256-257 of 2005

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Arguments for and Against the Death

Penalty
DETERRENCE: The death penalty prevents future murder.

Society has always used punishment to discourage would-be criminals from unlawful action.
Since society has the highest interest in preventing murder, it should use the strongest
punishment available to deter murder, and that is the death penalty. If murderers are
sentenced to death and executed, potential murderers will think twice before killing for fear
of losing their own life. For years, criminologists analyzed murder rates to see if they
fluctuated with the likelihood of convicted murderers being executed, but the results were
inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced
results showing that for every inmate who was executed, 7 lives were spared because others
were deterred from committing murder.

Similar results have been produced by disciples of Ehrlich in follow-up studies. Moreover,
even if some studies regarding deterrence are inconclusive, that is only because the death
penalty is rarely used and takes years before an execution is actually carried out. Punishments
which are swift and sure are the best deterrent. The fact that some states or countries which
do not use the death penalty have lower murder rates than jurisdictions which do is not
evidence of the failure of deterrence. States with high murder rates would have even higher
rates if they did not use the death penalty.

Finally, the death penalty certainly "deters" the murderer who is executed. Strictly speaking,
this is a form of incapacitation, similar to the way a robber put in prison is prevented from

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robbing on the streets. Vicious murderers must be killed to prevent them from murdering
again, either in prison, or in society if they should get out. Both as a deterrent and as a form
of permanent incapacitation, the death penalty helps to prevent future crime.

Testimony in support of deterrence

Ernest van den Haag, Professor of Jurisprudence and Public Policy, Fordham University,
advocated in his research article28 “Execution of those who have committed heinous murders
may deter only one murder per year. If it does, it seems quite warranted. It is also the only
fitting retribution for murder I can think of.” “Most abolitionists acknowledge that they
would continue to favour abolition even if the death penalty were shown to deter more
murders than alternatives could deter. Abolitionists appear to value the life of a convicted
murderer or, at least, his non-execution, more highly than they value the lives of the innocent
victims who might be spared by deterring prospective murderers. Deterrence is not altogether
decisive for me either. I would favour retention of the death penalty as retribution even if it
were shown that the threat of execution could not deter prospective murderers not already
deterred by the threat of imprisonment. Still, I believe the death penalty, because of its
finality, is more feared than imprisonment, and deters some prospective murderers not
deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims
by deterring their murderers is more important than preserving the lives of convicted
murderers because of the possibility, or even the probability, that executing them would not
deter others. Whereas the life of the victims who might be saved is valuable, that of the
murderer has only negative value, because of his crime. Surely the criminal law is meant to
protect the lives of potential victims in preference to those of actual murderers.”

”We threaten punishments in order to deter crime. We impose them not only to make
the threats credible but also as retribution (justice) for the crimes that were not
deterred. Threats and punishments are necessary to deter and deterrence is a sufficient
practical justification for them. Retribution is an independent moral justification.
Although penalties can be unwise, repulsive, or inappropriate, and those punished can
be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be
unjust. By committing the crime, the criminal volunteered to assume the risk of
receiving a legal punishment that he could have avoided by not committing the crime.

28
The Ultimate Punishment: A Defence, (Harvard Law Review Association) 1986.
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The punishment he suffers is the punishment he voluntarily risked suffering and,

therefore, it is no more unjust to him than any other event for which one knowingly
volunteers to assume the risk. Thus, the death penalty cannot be unjust to the guilty
criminal.”

REBUTTAL TO DETERRENCE:

The death penalty is not a proven deterrent to future murders.

Those who believe that deterrence justifies the execution of certain offenders bear the burden
of proving that the death penalty is a deterrent. The overwhelming conclusion from years of
deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence
of life in prison. The Ehrlich studies have been widely discredited. In fact, some
criminologists, such as William Bowers of North-eastern University, maintain that the death
penalty has the opposite effect: that is, society is brutalized by the use of the death penalty,
and this increases the likelihood of more murder. Even most supporters of the death penalty
now place little or no weight on deterrence as a serious justification for its continued use.
States in the United States that do not employ the death penalty generally have lower murder
rates than states that do. The same is true when the U.S. is compared to countries similar to it.
The U.S., with the death penalty, has a higher murder rate than the countries of Europe or
Canada, which do not use the death penalty. The death penalty is not a deterrent because most
people who commit murders either do not expect to be caught or do not carefully weigh the
differences between a possible execution and life in prison before they act. Frequently,
murders are committed in moments of passion or anger, or by criminals who are substance
abusers and acted impulsively. As someone who presided over many of Texas's executions,
former Texas Attorney General Jim Mattox has remarked, "It is my own experience that
those executed in Texas were not deterred by the existence of the death penalty law. I think in
most cases you'll find that the murder was committed under severe drug and alcohol abuse."
There is no conclusive proof that the death penalty acts as a better deterrent than the threat of
life imprisonment. A survey of the former and present presidents of the country's top
academic criminological societies found that 84% of these experts rejected the notion that
research had demonstrated any deterrent effect from the death penalty.

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Once in prison, those serving life sentences often settle into a routine and are less of a threat
to commit violence than other prisoners. Moreover, most states now have a sentence of life
without parole. Prisoners who are given this sentence will never be released. Thus, the safety
of society can be assured without using the death penalty.

RETRIBUTION

A just society requires the death penalty for the taking of a life.

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored,
society succumbs to a rule of violence. Only the taking of the murderer's life restores the
balance and allows society to show convincingly that murder is an intolerable crime which
will be punished in kind.

Retribution has its basis in religious values, which have historically maintained that it is
proper to take an "eye for an eye" and a life for a life. Although the victim and the victim's
family cannot be restored to the status which preceded the murder, at least an execution
brings closure to the murderer's crime (and closure to the ordeal for the victim's family) and
ensures that the murderer will create no more victims.

For committing the most cruel and heinous crimes, the ones for which the death penalty is
applied, offenders deserve the worst punishment under our system of law, and it is the death
penalty. Any lesser punishment would undermine the value society places on protecting lives.

Testimony in support of retribution

Louis P. Pojman, Author and Professor of Philosophy in U.S. Military Academy says in
"The Death Penalty“[Opponents of the capital punishment often put forth the following
argument:] Perhaps the murderer deserves to die, but what authority does the state have to
execute him or her? Both the Old and New Testament says, “‘Vengeance is mine, I will
repay,’ says the Lord”29. You need special authority to justify taking the life of a human
being. The objector fails to note that the New Testament passage continues with a support of
the right of the state to execute criminals in the name of God: ‘Let every person be subjected
to the governing authorities. For there is no authority except from God, and those that exist

29
Prov. 25:21 and Romans 12:19
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have been instituted by God. Therefore he who resists what God has appointed, and those
who resist will incur judgment.... If you do wrong, be afraid, for [the authority] does not bear
the sword in vain; he is the servant of God to execute his wrath on the wrongdoer’30. So,
according to the Bible, the authority to punish, which presumably includes the death
penalty, comes from God. But we need not appeal to a religious justification for capital
punishment. We can cite the state's role in dispensing justice. Just as the state has the
authority (and duty) to act justly in allocating scarce resources, in meeting minimal needs of
its (deserving) citizens, in defending its citizens from violence and crime, and in not waging
unjust wars; so too does it have the authority, flowing from its mission to promote justice and
the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right
to life, deserves to be executed, especially if it will likely deter would-be murderers, the state
has a duty to execute those convicted of first-degree murder.”

REBUTTAL TO RETRIBUTION:

The death penalty is not a just response for the taking of a life.

Retribution is another word for revenge. Although our first instinct may be to inflict
immediate pain on someone who wrongs us, the standards of a mature society demand a more
measured response. The emotional impulse for revenge is not a sufficient justification for
invoking a system of capital punishment, with all its accompanying problems and risks. Our
laws and criminal justice system should lead us to higher principles that demonstrate a
complete respect for life, even the life of a murderer. Encouraging our basest motives of
revenge, which ends in another killing, extends the chain of violence. Allowing executions
sanctions killing as a form of 'pay-back'. Many victims' families denounce the use of the
death penalty. Using an execution to try to right the wrong of their loss is an affront to them
and only causes more pain. The notion of an eye for an eye, or a life for a life, is a simplistic
one which our society has never endorsed. We do not allow torturing the torturer, or raping
the rapist. Taking the life of a murderer is a similarly disproportionate punishment, and these
defendants are typically not the worst offenders but merely the ones with the fewest resources
to defend themselves

30
Romans 13: 1-4
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CONCLUSION

In India the present position regarding death sentence is quite a balanced one. But the wide

judicial discretion given to the court has resulted into enormously varying judgment, which

does not portray a good picture of the justice delivery system. What is needed to be done is

that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly

complied with, so that the person convicted for offence of similar nature are awarded

punishment of identical degree.

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BIBLIOGRAPHY

Books Referred

 Administration of Criminal Justice by Dr. N.K. Chakrabarti

 A Theory of Justice by John Rawls
 PSA Pillai 13th edition Lexis Nexis Publications

 Websites Referred

 www.LegalServiceIndia.com

 www.Findarticles.com

 www.legalservicesindia.com

 https://indiankanoon.org

 www.lawoctopus.com

 www.amnesty.org

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