PUNISHMENT IN

INDIA
.
 Punishment in ancient India
Daa (Hindu punishment)
In ancient India, punishments were generally
sanctioned by the ruler, but other legal officials
could also play a part. The punishments that
were handed out were in response to criminal
activity.
In the Hindu law tradition, there is a
counterpart to daa which is pryacitta, or
atonement. Whereas daa is sanctioned
primarily by the king, prya
 Purpose of Daa
There were two main purposes for punishment in
Hindu society.
1st--Incapacitation ,
By this an offender would not be able to commit the
same crime again. For example, the hands of a thief
would be cut off.
2ndDeterrence
Criminals were punished to set an example to the
public, in hopes of preventing future offenses.
Other purposes such as rehabilitation were used as
means of punishment and correction.
Retribution not have a prevalent role in Hindu
punishment.
 Incapacitation
Incapacitation is a way to prevent the
commission of a crime. An offender punished
with death, banishment, imprisonment or
mutilation prevents them from being able to
repeat an offense permanently or
temporarily.
Manu urges the king to cut off the offending
limb of a thief to prevent them from stealing
again. In the case of cutting off a limb it has
both a preventative effect and ensures that
the same crime will not be committed again
 Deterrence
One reason for punishment is to prevent or
discourage commission of crimes or unlawful
behavior through deterrence. It can prevent people
from committing a crime or from re-offending.
According to the Mahabharata people only
engage in their lawful activities for fear of
punishment by the king, The main way to deter
potential criminals from committing a crime was
through the example of offenders suffering. Making
imprisonment both deterrent and preventative.
 Rehabilitation

Rehabilitation is yet another goal of Hindu

punishment. Someone who breaks the law
should be punished in a way that improves
his character and conduct and places the
offender on the correct path. The
Mahabharata recommends the king reform
or correct criminals by punishment.
 The Dharmasastras
The Dharmastras are dealing with dharma. They are
essentially the legal texts of ancient Hindu society.
These texts were written for the purpose of describing
the ideal behavior of members in the society. The
Dharmastras were even written to encompass the
method, by which, one would urinate or defecate.
Another set of local laws that work in conjunction with
Dharmastras is cra. Dharmastras date back to
ancient India; however, there have been edits to the
original texts over time.
 Types of punishment

The Mnava-Dharmastra, Manu cites four types of

punishment:
Vak-danda, admonition;
Dhikdanda, censure;
Dhanadanda, fine (penalty) &
Badhadanda,
Vak-danda is the least severe type of punishment and the
severity increases as Dhikdanda, Dhanadanda, and
Badhadanda respectively.
Manu also states that the different types of punishments
may be combined to serve as a just punishment. Later
authors added two more types of punishment:
confiscation of property and public humiliation
The general forms of punishment
are:
Flogging
Mutilation
Branding
Stoning
Pillory
Fine / Penalty
Forfeiture of Property
Security Bond
Banishment
Simple Imprisonment
Solitary confinement
Imprisonment for Life
Death or Capital Punishment
 Punishments in Mohammedan Law
Qisas - Victim or his relatives inflict similar
pain / punishment to the offender
Diya - Offender can be exempted by paying
money to the victim or heir of victim
Hadd - Fixed punishment to various crimes.
Judge does not have a say.
Tazeer - Judge has the complete discretion to
award punishment to the offender
Siyasat - King, in the interest of public could
award punishment to the offender
Types of Punishments according to
IPC
Sec 53 of IPC prescribes 5 kinds of
punishments.
Death Penalty
Life imprisonment
Imprisonment: Rigorous ,Simple
Forfeiture of property
Fine
 1. The punishment of Death:
Imposed on the following offences:
(a) Waging or attempting to wage war or abetting the
waging of war against the Government of India -Section 121
(b) Abetment of mutiny actually committed Sec. 132
(c) Giving or fabricating false evidence upon which an
innocent person suffers death Sec. 194
(d) Murder Section 302
(e) Punishment for murder by a life-convict Sec. 303 [This
Section was struck down by the Supreme Court holding that
it was unconstitutional, while disposing the case Mithu v.
State of Punjab, AIR 1983 SC 4731;
(g) Attempt to murder by a person under sentence of
imprisonment for life, if hurt is caused Sec. 307
(h) Dacoity with murder Sec. 396
 .
The Courts have a high range of discretionary powers in
passing death sentences. The death punishment is also
called Capital Punishment. The word capital means
the head or top of the column. Thus the capital
punishment means removal of head, death penalty
or beheading.
It is the maximum punishment possible to be imposed
on a criminal. This punishment occupies topmost
position among the grades of punishments. This
punishment can be imposed in extreme cases and rarely
that too in extremely grave crimes.
 2. Imprisonment for Life:
Before 1955, the words transportation for life
was used. The Code of Criminal Procedure
Amendment Act, 1955 (Act No. 26 of 1955)
substituted the words Imprisonment for life in
place of transportation for life.
The general public thinks that imprisonment for
life means only 14 years imprisonment, and the
convict shall be released as soon as the 14 years
period is lapsed. It is wrong presumption.
Actually, the punishment under the
Imprisonment for Life means imprisonment for
the whole of the remaining period of the
convicted persons natural life.
 .
Now the convicts under imprisonment for life
are imprisoned in the Prisons of the States
concerned. The life convict is not entitled to
automatic release on completion of fourteen
years imprisonment, unless on special
occasions, the Government may pass an
order considering the good behavior and
conduct of the convict remitting the balance
of imprisonment for life.
 (i) Rigorous Imprisonment i.e. with
Hard Labour:

Examples: House- trespass under Sec 449

fabricating false evidence with intent to procure
conviction of an offence which is capital by the
Code Sec. 194, etc.
For such offences, rigorous imprisonment may
be imposed. In rigorous imprisonment, the
convicted person is put to do hard labour such
as digging earth, cutting stones, agriculture,
grinding corn, drawing water, carpentry, etc. The
Supreme Court suggested that the offenders
imposed hard labour should be paid minimum
wages.
 (ii) Simple imprisonment:

This punishment is imposed for the lighter

offences. Examples: public servant unlawfully
engaging in trade or unlawfully buying or
bidding for property (Sections 168-169);
absconding to avoid service of summons or
other proceedings, or not attending in
obedience to an order from a public servant
(Sections 172-174); to obstruct traffic or
cause public nuisance; eve- teasing,
Solitary Confinement
 :

Section 73 of the Code empowers the Courts

to impose solitary confinement to certain
persons and in relation to certain offences
A harsh and hardened convict may be
confined in a separate cell to correct his
conduct. He is put separately without other
prisoners.
 The object of this punishment :
To reform the hardened and habitual
offender
To experience him with loneliness.

There are certain restrictions in imposing

solitary confinement. They are:
 Constitutional arguments against solitary confinement
1. It violates the basic concept of human dignity
2. It denies basic human rights
3. It causes significant mental and physical pain and
suffering
4. It is unnecessary in many cases
Arguments in favour of solitary confinement
1. It is necessary to prevent cases of suicides
2. It is an additional measure of protection of an inmate
from other inmates
3. In cases of violations of prison regulations, it can be
given to some extent
After 43 years in solitary imprisonment,
US inmate Albert Woodfox freed
 Woodfox and two others were kept in
solitary for being members of Black Panthers
The trio became known as "Angola Three"
for their long solitary confinement
For 43 years, Woodfox spent 23 hours a day
in a solitary cell, 1 hour at exercise yard alone

.
(a) Solitary confinement should not exceed three
months of the whole term of imprisonment.
(b) . It cannot be awarded where imprisonment is not
part of the substantive sentence.
(c) It cannot be awarded where imprisonment is in
lieu of fine.
(d) It cannot also be awarded for the whole term of
imprisonment. Further according to Section 73, the
following scale shall be adhered,
(i) Time not exceeding one month if the term of
imprisonment shall not exceed six months;
(ii) A time not exceeding two months if the term of
imprisonment shall exceed six months and shall not
exceed one year;
 .
(iii) A time not exceeding three months if the
term of imprisonment shall exceed one year.
In several European countries, including
Great Britain, this punishment was repealed.
Section 74 limits the solitary confinement. If
it is imposed for a long time, it adversely
affects on human beings and creates mental
derangement.
 This Section says that solitary confinement shall
in no case exceed fourteen days at a time with
intervals between the periods of solitary
confinement of not less duration than such
periods, and when the imprisonment awarded
shall exceed three months, such confinement
shall not exceed seven days in any one month of
the whole imprisonment awarded, with
intervals between the periods of solitary
confinement of not less duration than such
periods.
 Landmark case laws

Unni Krishnan & Ors. v. State of Andhra Pradesh

& Ors., 1993 SC
As per Supreme Court Right against solitary
confinement is one of the rights that falls
under Article 21 (Right to Life) of the
Constitution.
Sunil Batra v. Delhi Administration, 1979 SC
Supreme Court held that solitary or single cell
confinement prior to rejection of the mercy
petition by the President is unconstitutional.
 .
Section 75 the Code permits to impose
enhanced punishment for certain offences
under Chapter-XII or Chapter-XVII after
previous convictions.
 .
According to this Section, whoever, having been
convicted by a Court in India, of an offence
punishable under Chapter-XII or Chapter-XVII of this
Code, with imprisonment of either description for a
term of three years or upwards, shall be guilty of any
offence punishable under either of those Chapters
with like imprisonment for the like term, shall be
subject for every such subsequent offence to
imprisonment for life, or to imprisonment of either
description for a term which may extend to ten years,
as Chapter-XII, containing Sections 230 to 263-A,
explains about the offences relating to coins and
Government Stamps.
 .
Chapter-XVII containing Sections 378 to 462
explains the offences against property, i.e.,
theft, extortion, robbery, dacoity, criminal
misappropriation of property, criminal
breach of trust, receiving of stolen property,
cheating, mischief and criminal trespass.
 .
Conditions for imposing enhanced
punishment:
(a) The accused must have been previously
convicted;
(b) Such conviction must be for any offence
mentioned in Chapter-XII or XVII; to
(c) Such previous conviction must have been for
an offence punishable for not less than three ea
years;
(d) Subsequent offence must also be punishable
with imprisonment for not less than three years
 4. Forfeiture of Property:

Forfeiture is the divestiture of specific property without

compensation in consequence of some default or act of
forbidden by law. The Courts may order for forfeiture of
property of the accused in certain occasions.
In white collar crimes, and where a Government
employee or any private person accumulates black money
and black assets, and there is no genuine answer and
proof for such money and properties with such person,
the Court may award for forfeiture of property.
In cases of smugglers, goondas, anti-national
personalities, etc., the Government or the Courts are
empowered to forfeiture of property of such anti-social
elements.
 5. Fine:

The Courts may impose fine along with or

without imprisonment. The Indian Penal Code
mentions the punishment of fine for several
offences, generally with or without
imprisonment.
Amount of fine:
According to Section 63, where no sum is
expressed to which a fine may extend, the
amount of fine to which the offender is liable is
unlimited, but shall not be excessive.
 Crimes punishable by death

Under Article 21 of the Constitution of

India, no person can be deprived of his life
except according to procedure established by
law.
 .
A death sentence such as the one handed to Yakub
Memon, convicted for the 1993 Mumbai serial
bombings is common in India, with 1,303 capital-
punishment verdicts between 2004 and 2013,
according to this National Crime Record Bureau prison
statistics report.
However, only three convicts were executed over this
period, one each in West Bengal (2004), Maharashtra
(2012) and Delhi (2013). India saw an execution-free
period of seven years between 2004 and 2012.
.
 .
On 14 August 2004, Dhananjoy Chatterjee
was hanged at Alipore Central Jail in West
Bengal on his 42nd birthday, convicted for
the rape and murder of a teenage girl
 .
Dhananjoy Chatterjee (14 August 1965 14 August
2004) was born in Kuludihi, West Bengal, India and
worked as a security guard in Kolkata.He was the only
person judicially executed in India in the twenty-first
century so far for a crime not related to terrorism.
The execution by hanging took place in Alipore
Central Correctional Home, Kolkata, on 14 August,
2004.Dhananjoy had been charged with the crimes
of rape and murder of Hetal Parekh, an 18-year-old
school-girl, on 5 March 1990, in her third floor
apartment in Bhawanipore, Kolkata
 .
Dhananjoy was convicted on the basis
of circumstantial evidences only. He had
consistently maintained his innocence
throughout his trial and imprisonment, which
lasted for more than 14 years
 .
Hetal Parekh was a student of Welland Gouldsmith
School at Bowbazar, Kolkata. She used to live with her
parents and elder brother in a third floor flat of
Anand Apartments in Bhawanipore. The Parekhs
moved into this flat in 1987, soon after the
construction of this building had been completed.
There was an automatic elevator in the building,
which used to be operated by a liftman from 8 am to
2 pm and 4 pm to 8 pm. Security and Investigation
Bureau, a private security agency was entrusted with
the security of the building. The agency used to
engage security guards (casual workers) in three shifts
a day. Dhananjoy was a security guard of this agency.
He had worked in that building for about three years.
 .
On 5 March 1990, Dhananjoy performed
security duty in Anand Apartments during
the morning shift (6 am to 2 pm). Hetal left
for her ICSE examination at about 7:30 am.
After the examination, which was held at her
own school, she returned home. In the
afternoon, only Hetal and her mother were
there in the flat. Hetal's father and brother
were away in their shop at Bagri market
 Hetal's mother went to visit the Lakshminarayan
.
.temple on Sarat Bose Road in the afternoon. The temple
is only a ten minutes walk from Anand Apartments. After
returning from the temple, she rang the calling bell of her
flat a few times and banged on the door repeatedly, but
no one opened the door.

At her instruction, some servants of different flats broke

the door open. Hetal was found lying dead near the door
connecting the living room with the Parekh couple's
bedroom. There was blood on her face and on the floor.
Hetal's mother lifted Hetal's body and carried it to the
ground floor by using the elevator. Two local doctors
examined Hetal and declared her dead.The liftman said
that he had seen Dhananjoy walking down the stairs
shortly before Hetal's mother had returned.
 .
The police was informed after Hetal's brother
and father returned. Dhananjoy was not seen
in the area after the murder had been
discovered. He became the focal point of
police investigations. He was eventually
arrested by the police from his village home
at Kuludihi near Chhatna, Bankura, in the
early hours of 12 May 1990.
 .
The case was investigated by the Detective
Department of Kolkata Police. The charge sheet
prepared by the police included the charges
of rape, murder and the theft of a wrist watch.
The trial took place in the second court of
the Additional Sessions Judge at Alipore. Since
there was no direct witness to the murder, the
case hinged on circumstantial evidence
only.After the sessions court convicted
Dhananjoy of all the offenses and sentenced him
to death, the High Court at Calcutta and
the Supreme Court of India upheld
the conviction and the death sentence.
 .
There may not have been a rape.

Dubious 'eye-witness' testimonies

Sketch and photograph of Anand Apartments
showing third floor balcony and place of duty of
security guard, together with actual photograph
Dhananjoy had been linked to the crime through
witness testimonies. Two main witness
testimonies were from two security personnel,
who purportedly conversed with Dhananjoy
while he was leaning out of the balcony of the
 .
victims third floor flat at Anand Apartments and the
witnesses were at the security guard's place of duty
at the ground floor. However, that balcony is not even
visible from the guards place of duty, which is inside
the building and it is not possible for anyone to lean
out of the balcony enclosed in iron grills (see sketch).
The only other 'eyewitness', a liftman, contradicted
what the prosecution claimed to be his statement to
the police (e.g., he completely denied that he had
taken Dhananjoy by lift to the third floor and saw him
proceeding towards the victims flat). The liftman was
declared a hostile witness at the behest of the
prosecution
 .
Dubious pieces of material evidence
One of the three pieces of material evidence used to
link Dhananjoy to the crime scene was a neck-chain
found there, which a servant of the opposite flat had
claimed as his own. He changed his story in Court and
said that he had gifted the chain to
Dhananjoy. Another evidence was a 'stolen' watch
'seized' from Dhananjoy. The serial number of the
watch was never matched with the purchase record,
though the police was in touch with the shop that had
sold it..
 .
The third piece of material evidence was a button found
from the crime scene, and forensically linked with a shirt
'seized' from Dhananjoy under doubtful
circumstances.There was no independent witness of these
'seizures. One of the witnesses could not be produced in
court, while the other one worked in a tea shop next to
the police station and was known to have served tea to
the police. 'Seizures' from the crime scene were also
dubious. The police was called more than three hours
after the door of Hetal's flat was broken and her dead
body wad publicly discovered. The body had been moved
repeatedly and the crime scene had been trampled upon
before the police arrived
.
 .
On 21 November 2012, Mohammad Ajmal
Amir Kasab the only terrorist to
have survived the 2008 Mumbai terror
attacks, was hanged in Punes Yerwada Jail.
 .
Mohammed Ajmal Amir Kasab was a
Pakistani militant and a member of the
Lashkar-e-Taiba Islamist group, through
which he took part in the 2008 Mumbai
terrorist attacks in Maharashtra state of
India.Kasab was the only attacker captured
alive by police.
.
 .
On 9 Februrary 2013, Mohammed Afzal Guru,
a convict in the 2001 Parliament attack case
was hanged inside Delhis Tihar jail.
 .
Mohammad Afzal Guru (30 June 1969 9 February
2013) was born in Kashmir, India who was convicted
and was given death sentence in India for his role in
the December 2001 terrorist attack on the Indian
Parliament. Indian media states he received terrorist
training in Pakistan by Pakistan Army's retired
officers. He had provided hideout and logistics for the
terrorists in New Delhi. Tracking of phone calls
between him and the militants, minutes before the
attack, proved his role, which he later confessed to. In
2001, Guru was arrested, along with three others.
 .
The initial conviction and sentence was made by a
special Prevention of Terrorism Act Court in 2002,
which was confirmed in 2003 by the Delhi High Court.
In 2005, his appeal was rejected by the Supreme
Court of India following which his wife filed a mercy
petition before the President of India
On 3 February 2013, his mercy petition was rejected
by the President of India, Pranab Mukherjee and he
was secretly hanged at Delhi's Tihar Jail around
08:00 am on 9 February 2013 and afterward buried
inside jail grounds in Operation Three Star.
 The court had wrongly decided
case... They were
Shivajji vs State of Maharashtra,
Mohan Anna Chavan vs State of Maharashtra,
Bantu vs State of Uttar Pradesh (President
Pratibha Patil commuted the sentence of this
convict),
Surja Ram vs State of Rajasthan (Surja Ram was
executed),
Dayanidhi Bisoi vs State of Orissa, and
State of U.P. vs Sattan
 .
In Ravji Ram Chandra vs State of Rajasthan
(1996) (2 SCC 175), a case which was decided
by a Bench of two judges, the Supreme Court
held that it is the nature and gravity of the
crime but not the criminal which are
germane for consideration of appropriate
punishment in a criminal trial (paragraph 24)
 .
In addition, 3,751 death sentences were
commuted to life imprisonment during this
period.

Former chartered accountant Memon is set

to be hanged on July 30, 2015, the day he
turns 53. A debate has now broken out over
the verdict against him and the death
sentence in general.
 .
In July 2007, Yakub and 11 others were
convicted and sentenced to death by a
special court for planning or carrying out the
1993 Mumbai bombings that killed nearly
260 people and injured 700.

In March 2013, the Supreme Court upheld

Memons death sentence, while commuting
the death sentence of 10 others (one died
later) to life imprisonment.
 .
Uttar Pradesh awarded the most death
sentences (318) over the last 10 years.
Maharashtra was second with 108, followed
by Karnataka (107), Bihar (105) and Madhya
Pradesh (104).
 .
These top five states comprise almost 57% of
all capital punishments awarded in the
country between 2004 and 2013.

In Delhi, 2,465 prisoners had death sentences

commuted to life imprisonment (between
2004 and 2013). Jharkhand and Uttar Pradesh
were second with 303 death sentences
commuted to life imprisonment, followed by
Bihar (157) and West Bengal (104).
 Death sentence abandoned by 160
countriesnot India, China, US and
Japan.
In 2007, the United Nations General Assembly adopted resolution
owards the abolition of capital punishment and the protection of human
rights when it endorsed a call for a worldwide moratorium on the death
penalty.
Apart from India, other prominent countries that opposed the resolution
to abolish the death penalty include China, Japan and United States.
In 2013, nearly 778 executions were reported in 22 countries, a 14%
growth over 682 executions in 2012.
On Monday, Pakistan executed two murder convicts following a one-
month break during the holy month of Ramzan. This adds to 176
executions since December 2014, after a six-year moratorium on the
death penalty.
 .

121 Waging, or attempting to wage war, or abetting waging of

war, against the Government of India
132 Abetment of mutiny
194 If an innocent person be convicted and executed in
consequence of such false evidence to procure conviction of
capital offence
302, 303 Murder 305 Abetment of suicide of child or insane
person
364A Kidnapping for ransom
396 Dacoity with murder If any one of five or more persons,
who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be
punished
376A Rape/Sexual Assault An amendment in the year 2013
provided for death penalty in case he inflicts an injury upon
woman during rape which causes her death or to be in
persistent vegetative state.
 .
The Supreme Court of India ruled in 1983 that the
death penalty should be imposed only in "the rarest of
rare cases."While stating that honour killings fall
within the "rarest of the rare" category, Supreme
Court has recommended the death penalty be
extended to those found guilty of committing "honour
killings", which deserve to be a capital crime. The
Supreme Court also recommended death sentences to
be imposed on police officials who commit police
brutality in the form of encounter killings
In an appeal filed by Vikram Singh and another person,
facing the death sentence, the constitutional validity
of Section 364A of the Indian Penal Code has been
questioned
 Other legislation

Sati is an inhumane practice involving the burning

or burying alive of any widow or woman along with
the body of her deceased husband or any other
relative or with any article, object or thing
associated with the husband or such relative. Under
the Commission of Sati (Prevention) Act, 1987 Part.
II, Section 4(1), if any person commits sati, whoever
abets the commission of such sati, either directly or
indirectly, shall be punishable with death.
 .
The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 was
enacted to prevent the commission of offences
of atrocities against the members of the
Scheduled Castes and the Scheduled Tribes.
Under Section 3(2)(i) of the Act, bearing false
witness in a capital case against a member of a
scheduled caste or tribe, resulting in that
person's conviction and execution, carries the
death penalty
 .
In 1989, the Narcotic Drugs and Psychotropic
Substances (NDPS) Act was passed which
applied a mandatory death penalty for a second
offence of "large scale narcotics trafficking". On
16 June 2011, the Bombay High Court ruled that
Section 31A of the NDPS Act, which imposed the
mandatory sentence, violated Article 21 (Right
to Life) of the Constitution and that a second
conviction need not be a death penalty, giving
judges discretion to decide about awarding
capital punishment.
 .
In recent years, the death penalty has been
imposed under new anti-terrorism legislation for
people convicted of terrorist activities.On 3
February 2013, in response to public outcry over
a brutal gang rape in Delhi, the Indian
Government passed an ordinance which applied
the death penalty in cases of rape that leads to
death or leaves the victim in a "persistent
vegetative state".The death penalty can also be
handed down to repeat rape offenders under
the Criminal Law (Amendment) Act, 2013.
 .
After the award of the death sentence by a
sessions (trial) court,the sentence must be
confirmed by a High Court to make it final.
Once confirmed, the condemned convict has
the option of appealing to the Supreme Court. If
this is not possible, or if the Supreme Court
turns down the appeal or refuses to hear the
petition, the condemned person can submit a
mercy petition to the President of India and
the Governor of the State
 Constitutional power

Article 72(1) of the Constitution of India states:

The President shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any
person convicted of any offence
(a) in all cases where the punishment or sentence is
by a Court Martial;
(b) in all cases where the punishment or sentence is
for an offence against any law relating to a matter to
which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of
death.
 Execution of death sentence

The execution of death sentence in India is

carried out by two modes, namely hanging by
the neck till death and being shot to death.
the Code of Criminal Procedure (1973)
Section 354(5) of the above procedure reads
as "When any person is sentenced to death,
the sentence shall direct that he be hanged
by the neck till he is dead."
 The Army Act and Air Force Act also provide for the
execution of the death sentence.Section 34 of the Air
Force Act, 1950 empowers the court martial to
impose the death sentence for the offences
mentioned in section 34(a) to (o) of The Air Force
Act, 1950. Section 163 of the Act provides for the
form of the sentence of death as:-
"In awarding a sentence of death, a court-martial
shall, in its discretion, direct that the offender shall
suffer death by being hanged by the neck until he be
dead or shall suffer death by being shot to death".
 .
In Prajeet Kumar Singh v.State of Bihar
DATE OF JUDGMENT: 02/04/2008 SC reiterated
precedents set in 1980 and in a number of other
decisions on the death penalty.

It said the rarest cases were those in which the

collective conscience of the community is so shocked
that it will expect the holders of the judicial power to
inflict death penalty.

These, the court said, were cases in which a murder is

committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse
intense and extreme indignation of the community.
 .
Shatrughan Chauhan & Anr. Vs Union of India
SC commutes death sentences of 15 Convicts,
due to delay in mercy plea decisions

 What is a 'rarest of rare' crime

inviting the death penalty?

A provision was introduced in 1973, Section

354(3) of the Criminal Procedure Code (CrPC),
which stipulated that a judgment shall state
''the reasons for the sentence awarded and, in
the case of sentence of death, the special
reasons for such sentence''. It was while
interpreting those ''special reasons'' required for
invoking the discretion of death penalty that the
Supreme Court formulated the ''rarest of rare''
doctrine in 1980 in the Bachan Singh case.
 Aggravating and Mitigating Factors

When deciding the sentencing for a

defendant who has been found guilty, jurors
in most states are asked to weigh the
aggravating and mitigating circumstances of
the case.The weighing of aggravating and
mitigating factors is most often used in
connection with the penalty phase of capital
murder cases.
 .
Aggravating Factors are any relevant
circumstances, supported by the evidence
presented during the trial, that makes the
harshest penalty appropriate, in the
judgment of the jurors.
Mitigating Factors are any evidence
presented regarding the defendant's
character or the circumstances of the crime,
which would cause a juror to vote for a lesser
sentence.
 Parameters for imposition of death
sentence
a. Cases of extreme culpability
b. Circumstances of the offender &
circumstances
of the crime both have to consider
c. Life imprisonment is the rule & Death
sentence is exceptional
d. Have to balance between aggravating &
Mitigating factors
 .
Circumstances for death sentences
a. In cases of extreme culpability
b. When murder committed for a motive which
evinces total depravity Eg Murder by hired for
money
c. In cases of dowry death in order to remarry for
the sake of dowry
d. In cases of multiple murders
e. In cases of murder of innocent child, helpless
women, old /infirm person / public figure loved
by the people.
 .
The circumstances of the crime and the existence of
special circumstances.
The presence or absence of violent criminal activity
by the defendant.
The presence or absence of any prior felony
convictions.
Whether the crime was committed while the
defendant was under the influence of extreme mental
or emotional disorder.
Whether the victim was a participant in the
defendant's homicidal conduct or consented to the
killing.
 .
Whether the crime was committed under circumstances which
the defendant reasonably believed to be a moral justification or
extenuation for his conduct.
Whether the defendant acted under extreme duress or under the
substantial domination of another person.
Whether at the time of the crime the capacity of the defendant to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law was impaired as a result
of mental disease or defect, or the affects of intoxication.
The age of the defendant at the time of the crime.
Whether the defendant was an accomplice to the crime and his
participation was relatively minor.
Any other circumstances which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
 Important judgments
In Rajendra Prasad v State of U.P,1979 cr .L.J
792The SC gas observed that capital sentence
may be awarded where survival of the
society is in danger.

Section 354(3)cr pc ,1973 have to be read in

the humane light of part iii and iv of the
constitution.and by preamble.
 .
Section 354(3) CRPC 1973
(3) When the conviction is for an offence
punishable with death or, in the alternative,
with imprisonment for life or imprisonment
for a term of years, the judgment shall state
the reasons for the sentence awarded, and,
in the case of sentence of death, the special
reasons for such sentence.
 .
In Bachan Singh v. State of Punjab,1980 CR L.J
636(S.C)SC while upholding the validity of the
death penalty,opinioned that,death penalty
can be awarded in rarest of the rare cases.
 Bachan Singh V. State of Punjab , AIR
1980 SC 898
Bachan Singh, appellant in Criminal Appeal No. 273 of
1979, was tried and convicted and sentenced to death
under Section 302, Indian Penal Code for the murders
of DesaSingh, Durga Bai and Veeran Bai by the
Sessions Judge. The High Court confirmed his death
sentence and dismissed his appeal. Bachan Singh then
appealed to the SC by special leave, which came up
for hearing before a Bench of this Court (consisting of
Sarkaria and Kailasam, JJ.). The question raised in the
appeal was, whether the facts found by the courts
below would be "special reasons "for awarding, the
death sentence as required under Section 354(3) of
the CrPC, 1973.
 .
ISSUES :
The principal questions that fall to be considered in this case are:
(i) Whether death penalty provided for the offence of murder in
Section 302, Penal Code is unconstitutional?
(ii) If the answer to the above mentioned question be in the
negative, whether the sentencing procedure provided in Section
354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the
ground that it invests the Court with unguided and untrammelled
discretion and allows death sentence to be arbitrarily imposed on
a person found guilty of murder or any other capital offence
punishable under the Indian Penal Code with death or, in the
alternative, with imprisonment for life.?
 .
In this case judges differs in two views, one is
majority consisting of Y.V.Chandrachud,C.J.,
R.S.Sarkaria, A.C.Gupta, and N.L.Untwalia JJ. The
other view that is of minorityconsists of
P.N.Bhagwati J.The
majority view
was given with reference to the constitutional
validity of (i) death penalty for murder in 302
IPC (ii) and procedure in 354(3) CrPC,
 .
1973.Now under issue (i) there are further two
points:

Whether Article 19 is at all applicable for

judging the validity of the
impugnedprovision in section 302 of IPC?

Whether the impugned limb of the

provision of 302 of IPC contravenes
Article 21 of the constitution?
 .
It was finally held that the impugned provision of
section 302 penal code violates neither the letter nor
the ethos of Art. 19. As to the matter of 2nd point
Art.21 clearly brings out the implication that the
founding fathers recognized the rights of the state to
deprive a person of his life or personal liberty in
accordance with fair, just and reasonable procedure
established by valid law.
There are several other indications, also, in the
Constitution which show that the Constitution makers
were fully cognizant of the existence of death penalty
for murder and certain other offences in the IPC
 .
Now there comes (ii) issue which says are the
provisions of Section 354(3) of the CrPC,1973
unconstitutional? That is the question. The
constitutional validity of Section 354(3)is
assailed on the ground that -A sentence of death
is the extreme penalty of law and it is but fair
that when a Court awards that sentence in a
case where the alternative sentence of
imprisonment for life is also available, it should
give special reasons in support of the
 .
Sub-section (3) of Section 354 of the current
Code provides: When the conviction is for an
offence punishable with death or, in the
alternative with imprisonment for life or
imprisonment for a term of years, the
judgment shall state the reasons for the
sentence awarded, and, in the case of
sentence of death, the special reasons for
such sentence
 .
Now comes the minority view
(consisting of P.N.Bhagwati) who says that section 302
of IPC in so far as it provides for imposition of death
penalty as an alternative to life sentence is Ultra Virus
and Void as being violative of Articles 14 and 21 of
the constitution. Since it does not provide any
legislative guidelines as to when life should be
permitted be extinguished by imposition of death
sentence. He then further said thatI would strike
down section 302 IPC as unconstitutional and void
 ORDER
SC with the majority of 4:1 rejected the
challenge to the constitutionality of Section
302of the Penal Code in so far as it provides for
the death sentence as also the challenge to the
constitutionality of Section 354(3) of the CrPC,
1973The Writ Petitions and other connected
matters may now be placed for hearing, in
theusual course, before the Division Bench for
consideration of the individual cases on merits,
in the light of the principles enunciated in the
majority judgment.
Machhi Singh
. And Others vs State Of
Punjab on 20 July, 1983Equivalent
citations: 1983 AIR 957, 1983 SCR (3)
 .
Penal Code (Act 45 of 1860), Section 302-
Sentence- Imposition of death sentence-
"Rarest of rare cases formula"- Guidelines to
be adopted in identification of rarest of rare
cases, explained-Evidence Act (Act 1 of 1872)
Section 9- Witnesses indentifying culprits in
the light shed by lantern-Appreciation of-
Dying declaration, non-recording of-
Evidentiary value-Doctrine of benefit of
doubt, when to be invoked.
 .
A feud between two families has resulted in tragic
consequences. Seventeen lives were lost in the course of a
series of five incidents which occurred in quick succession
in five different villages, situated in the vicinity of each
other, in Punjab, on the night between August 12 and
August 13, 1977. The seventeen persons who lost their
lives and the three who substained injuries included men,
women and children related to one Amar Singh and his
sister Piaro Bai. In this connection one Machhi Singh and
his eleven companions, close relatives and associates
were prosecuted in five sessions cases, each pertaining to
the concerned village in which the killings took place
 .
Machhi Singh was the common accused at each
trial. The composition of his co- accused differed
number-wise and identity-wise from trial to trial
At the conclusion of the series of trials, the
accused found guilty were convicted under
appropriate provisions. Four of them were
awarded death sentence, whereas sentence of
imprisonment for life was imposed on nine of
them. They were also convicted for different
offences and appropriate punishment was inflicted
on each of them in that behalf. The order of
conviction and sentence gave rise to five murder
references and fourteen appeals by the convicts
before the High Court of Punjab and Haryana.
 .
Having lost their appeals and the death sentences
having been con-firmed, the appellants have come in
appeal by way of special leave. The Court considered
the following:
(a) What normal guidelines are to be followed so as
to identify the "rarest of rare cases" formula for
imposing death sentence, as spelled out in Bachan
Singh v. State of Punjab, [1980] 2 SCR 864;
(b) Reliability of eye witnesses to a crime under light
shed by the lantern in a village to identify connect an
accused to the crime;
(c) invocation of the doctrine of benefit of doubt;
 .
and
(d) the effect of non-summoning the
magistrate for recording dying declaration.
Allowing the Criminal Appeals Nos. 79/81
and 86/81 and dismissing the other appeals,
the Court
 .
HELD : 1:1. The extreme penalty of death need not
be inflicted except in gravest cases of extreme
culpability. Before opting for the death penalty the
circumstances of the 'offender' also require to be
taken into consideration alongwith the
circumstances of the 'crime'. 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
sentence of imprisonment for life cannot be
conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
 .
A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in
doing so the mitigating circumstances has 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.
 Balance sheet theory

Put in this context, the Supreme Courts

judgment in Machhi Singh vs State of Punjab in
1983, delivered by a three-judge Bench, revived
the theory of balancing of aggravating and
mitigating circumstances through a balance
sheet, thus negating Bachan Singhs principled
opposition to it. Ironically, most courtsfrom
trial courts to the Supreme Courthad no
compunction in relying on Machhi Singh after
paying lip service to Bachan Singh as though
they were complementary. The balance sheet
theory held the field post- Machhi Singh.
 .
The flaw was discovered first in a judgment delivered
by the Supreme Court in 2008, but then it was too
late as some death-row convicts, sentenced via
Machhi Singh, had already been hanged. Another
Bench reiterated this critique of Machhi Singh in
2009, but like the previous one in 2008 it did not find
it necessary to refer the question of overruling
Machhi Singh to a larger Bench comprising five
judges. Sangeet continued this scrutiny of Machhi
Singh and reiterated the need for a fresh look at it but
stopped short of referring it to a larger Bench, even
though it was competent to do so
 .
however, lies in bringing out the dichotomy between
Machhi Singh and Bachan Singh very clearly. A
balance sheet cannot be drawn up of two distinct and
different constituents of an incident, is how it put it.
Machhi Singh explains how a principled sentencing
envisaged in Bachan Singh soon turned out to be
judge-centric.
Although it does not refer to the judgment in the
case of Ajmal Kasab delivered on August 29, the fact
that the Supreme Court relied on Machhi Singh
approvingly to sentence Kasab to death raises serious
doubts whether the court adopted the correct legal
approach to send him to the gallows.