Death Penalty1

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Death Penalty

SUBMITTED TO:

Proffessor sir DEBOJEET

SUBMITTED BY:

BA.LLB Hons)4

thth

_Sem.

Faculty of Law,

Jamia Millia Islamia.

ACKNOWLEDGEMENT

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It gives me a great pleasure to present this project on

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 pleas

complete, compact and comprehensive. It’s a great pleas ure to bring my feeling

ure 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,

CRIMINOLOGY

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INDEX

1.Introduction 1.Introduction

2.Crime and Punishment 2.Crime and Punishment

3. Death penalty 3. Death penalty

History History

Rarest of the rarest case Rarest of the rarest case

Legality of Death Sentence Legality of Death Sentence

Reasonableness of Death Sentence Reasonableness of Death Sentence

Whether death Penalty serves any penological purpose? Whether death Penalty serves any penological purpose?

When can Death Sentence be granted When can Death Sentence be granted

Judicial Discretion Judicial Discretion

Need For Guidelines Need For Guidelines

Death Sentence For The Offence Of Rape Death Sentence For The Offence Of Rape

Mitigating

Mitigating CircumstancCircumstanceses

Conviction of a minor Conviction of a minor

Conviction Of A

Conviction Of A Pregnant womanPregnant woman

Lesser Sentence To Co- Accused Lesser Sentence To Co- Accused

Delay in execution of the death sentence Delay in execution of the death sentence

Reasons the death penalty should be

Reasons the death penalty should be abolishedabolished

Arguments for and Against the Death Penalty Arguments for and Against the Death Penalty

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Each society has its own way of social control for which it frames certain laws and Each society has its own way of social control for which it frames certain laws and

also mentions the sanctions with them. These s

also mentions the sanctions with them. These sanctions are nothing but the punishments. „Theanctions are nothing but the punishments. „The

first thing to mention in relation to the definition of punishment is the ineffectiveness of 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 definitional barriers aimed to show that one or other of the proposed justifications of

punishments either logically include or logically excluded by

punishments either logically include or logically excluded by definition.‟definition.‟

Punishment has the following

Punishment has the following featuresfeatures::

1)

1) II t it involves nvolves the dethe depripri vation of vation of cecerr tain tain nornor mallmall y recy recogniogni zzeed rid ri ghts, ghts, or othor oth eer r meameassurur eess considered

considered unun pleaspleasant.ant. 2)

2) II t it is s conseconsequence quence of an of an ofofffeence.nce. 3)

3) II t is at is applippli eed agd againain sst the t the authauth or of or of the cthe crr imim ee.. 4)

4) II t it is s appliappli eed by ad by an orn or gan of gan of ththe e ssysystem that made the atem that made the act an ofct an of ffeence.nce.

The kinds of punishment given are surely influenced by the kind of society one lives 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 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 instrument in preventing crime. But with change in time and development of human mind the punishment

punishment theories theories have have become become more more tolerant tolerant to to these these criminals. criminals. Debunking Debunking the the stringentstringent theories of punishment the modern society is seen in loosening its hold on the criminals. The theories of punishment the modern society is seen in loosening its hold on the criminals. The present

present scenario scenario also also witnesses witnesses the the opposition opposition of of capital capital punishment punishment as as inhumane, inhumane, though though itit was a major form of punishing the criminals earlier. But it may also be observed till recently 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 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.

really punish the individual but punishes the guilty mind.

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

know what crime or an offence really is. Here the researcher would like to quote Salmond’s Salmond’s

de

defifi nitiniti on of con of criri me me , which says,, which says,Crime is an act deemed by law to be harmful for the societyCrime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual.

as a whole though its immediate victim may be an individual. He further substantiates hisHe further substantiates his point

point of of view view through through the the following following illustration illustration a a murderer murderer injures injures primarily primarily a a particularparticular

INTRODUCTION:

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victim, but its blatant disregard of human life puts it beyond a matter of mere compensation victim, but its blatant disregard of human life puts it beyond a matter of mere compensation

between the murderer and the victim‟s family. between the murderer and the victim‟s family.

Thus it becomes very important on behalf of the society to punish the offenders. Punishment 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 can be used as a method of reducing the incidence of criminal behavior either by deterring the potential off

potential offenders or benders or by incapacitating y incapacitating and preventiand preventing them from rng them from repeating the oepeating the offence or bffence or byy reforming them into law-abiding citizens.

reforming them into law-abiding citizens. Theories of punishment contain generally policiesTheories of punishment contain generally policies regarding theories of punishment namely: Deterrent, Retributive, Preventive and regarding theories of punishment namely: Deterrent, Retributive, Preventive and Reformative.

Reformative. Punishment, whether legal or divine, needs justification. Many a time thisPunishment, whether legal or divine, needs justification. Many a time this punishment

punishment has been has been termed termed as a as a mode of mode of social social protection. protection. The affinThe affinity oity of punisf punishment withment withh many other measures involving deprivation by the state morally recognized rights is generally 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 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 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 as for other compulsory measures imposed by the state does not necessarily involve a particular standpo

particular standpoint on the issint on the issues of deterrence, ues of deterrence, reform or physical ireform or physical incapacitation. Obvncapacitation. Obviouslyiously the justification in terms of protection commits us to holding that punishment may be the justification in terms of protection commits us to holding that punishment may be effective in preventing social harms through one of these methods.

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 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 what crime really is. But it is quite difficult to say whether or not there must be any place for the

the traditional forms of punishment. In today‟s world the major question that is raised bytraditional 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 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 reformative successful in their objective. It is observed that prisons have become a place for breeding criminals not

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Cr

Cr imim e e is beis behavior havior or action or action that ithat i s s punipuni sshablhabl e e by by cricri mimi nal nal ll aw. aw. A crA cr imim e e is a is a publipubli c, c, asas oppo

opposseed to a mord to a mor al, wral, wr ong; ong; ii t it i s s an ofan of fence fence committed agacommitted agaii nst (and hence nst (and hence punpun ii sshablhabl e be by)y) the s

the state tate or thor th e e communicommuni ty at larty at lar gege. M. M any criany cri mes mes are immorare immor al, but nal, but n ot all ot all actionsactions cons

considered idered iimmormmor al are ilal are il legal.legal.

One can surely observe how closely crime and punishment are related. In different legal 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 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 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 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 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 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 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 India, but in many European countries such as Holland it is legalized. But there are certain offences which are recognized almost universally like murder.

offences which are recognized almost universally like murder.

Durkheim

Durkheim explains crime, as crime exists in every society which do and do not have laws,explains crime, as crime exists in every society which do and do not have laws, courts and the police.

courts and the police. He He asserts asserts that that all all societies societies have have crime, crime, since since all all societies societies involve involve aa differentiation between two kinds of actions, those that are allowed and those that are differentiation between two kinds of actions, those that are allowed and those that are forbidden. He calls the latter type criminal.

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 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 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 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. 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 A complete definition will now be made in such a way as to include both legal and divine punishment.

punishment. A. FA. F lelew w first suggests that first suggests that punishment must be an punishment must be an evil, an unpleasantness evil, an unpleasantness to theto the victim

victim. J. Mabbot objects to the use of the word. J. Mabbot objects to the use of the word'evil''evil' in connection with punishment. Hein connection with punishment. He maintains that 'evil' carries too much moral flavor and also that it suggests positive suffering. maintains that 'evil' carries too much moral flavor and also that it suggests positive suffering.

M

M abbabbotot states: The world is a worse place the more evil there is in it and perhaps the morestates: The world is a worse place the more evil there is in it and perhaps the more suffering. But it does not seem to me necessarily a worse place whenever men are deprived of suffering. 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 something they would like to retain; and this is the essence of modern punishment. While

Crime and Punishment

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deprivation may be a more appropriate description of modern punishment this does not 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 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 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.)

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 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'. 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 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 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 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 is possible to commit a wrongdoing intentionally although no law has been made, in fact it is because

because certain certain acts acts are are consideredconsidered wrong that laws are made in the first place. What iswrong 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 important to note is that punishment is a conditional act and cannot be isolated from its total context.

context.

But Durkheim has a different approach to punishment altogether. He treats punishment as the 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 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 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 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 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 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 action transgresses widely shared ad strongly held sentiments, whatever these might be in any particular

particular casecase..He explains that if punishment is a reaction of the society against theHe 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 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 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 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 approach has been criticized severely by various penologists, as at one time there is the use of both reformative and retr

both reformative and retributive theories.ibutive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the acts done are 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 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 not questioned. But any action through which maybe the same benefit is gained still the person

person may may be be punished punished as as because because his his action action was was not not within within the the scope scope of of the the provisions.provisions. Also there are certain elements in the society who though do many immoral acts but as Also there are certain elements in the society who though do many immoral acts but as

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because

because any any provisions provisions or or sanctions sanctions are are not not mentioned mentioned so so that that they they can can be be punished punished theythey continue to do those act. One should not earn any benefits or satisfaction out of such acts. 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 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 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 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 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 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 measures and discourage the offender from committing that act in the future. Treating punishment

punishment as as a a conventional conventional device device for for the the expression expression of of resentment, resentment, indignation,indignation, disappointment felt either by the sufferer and his family or the punishing authority as such disappointment felt either by the sufferer and his family or the punishing authority as such J.Feinberg argues tha

J.Feinberg argues that t certain kinds of certain kinds of severe treatment besevere treatment become symbolic of the come symbolic of the of theof the attitudes and judgment of the society or community in the face of the wrongdoing, and 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 constitute a stigma which castes shame and ignominy on the individual on whom the punishment is appli

punishment is applied. The distinctiveness of the ed. The distinctiveness of the unpleasant measure coulunpleasant measure could consist of the wayd consist of the way of executing them.

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The

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

Capital crimes are

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

armed forces..

Since

Since 19891989, the death penalty has also been legal for a, the death penalty has also been legal for a second offense of "large scalesecond offense of "large scale narcotics trafficking

narcotics trafficking". In recent years the death penalty has been imposed under new anti-". In recent years the death penalty has been imposed under new anti-terrorism legislation for people

terrorism legislation for peopleconvicted of terrconvicted of terr oriori sst activitit activiti eess.. Recently the Indian Supreme Recently the Indian Supreme Court in

Court in SSwamy Swamy Sharhar addaaddanannan da v. Sda v. State otate of f KarKar nataka nataka 1 1 made imposing the death penalty made imposing the death penalty even harder. The judgement holds that

even harder. The judgement holds that the “rarest of the rare” test prescribed inthe “rarest of the rare” test prescribed in Bachchan Singh’s case was diluted i

Bachchan Singh’s case was diluted in the Machchi Singhn the Machchi Singh case. The judgement then goes case. The judgement then goes

on to say that the “rarest of the rare” must be measured not only in

on to say that the “rarest of the rare” must be measured not only in qualitative but also inqualitative but also in quantitative

quantitative terms. terms.

India's top court has recommend the death penalty be

India's top court has recommend the death penalty be extendedextended to those found guilty of to those found guilty of committing so-called

committing so-called "honour killings"honour killings" with the Supreme Court stating that honour killings" with the Supreme Court stating that honour killings fall within the "rarest of the rare" category

fall within the "rarest of the rare" categoryand deserves to be a capital crime.and deserves to be a capital crime.

1 1 2007 SC 649 2007 SC 649

DEATH PENALTY :

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Official government statistics claim that only 52 people had been executed since Official government statistics claim that only 52 people had been executed since in

in dedepependencendence, but th, but th e Pe Peeople's Uniople's Uni on fon f or Cior Ci vil vil LL ibertiiberti ees s cited infcited inf ormorm ation ation has shas suggeuggesstetedd th

that that th e e total total nunu mber of mber of eexecutixecuti ons sons siinnce ce iindependependence may bndence may be e as as hihi gh as 3,00gh as 3,000 to 4,300 0 to 4,300 ..

About 29 mercy petitions are pending before the president, some of them from 1992. These 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 other deaths), include that of three assassins of Rajiv Gandhi (in a bombing which caused 14 other deaths), Khalistan Liberation Force terrorist Davinder Singh Bhullar who was convicted for killing Khalistan Liberation Force terrorist Davinder Singh Bhullar who was convicted for killing nine persons and injuring 31, the cases of slain forest brigand

nine persons and injuring 31, the cases of slain forest brigand Veerappan' Veerappan's four associatess four associates — —

Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran

Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran — — for killing 21 policemen infor killing 21 policemen in 1993 ; Gurdev Singh, Satnam Singh, Para Singh and Sarabjit Singh, given death penalty for 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 killing 17 persons in a village in Amritsar in 1991 ; and one Praveen Kumar for killing four members of his family

members of his family in Mangalore in 1994. in Mangalore in 1994. Many more are on Many more are on death row after having beendeath row after having been sentenced to die by lower courts, but on appeal most of them are likely to be commuted to 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 life imprisonment by the State High Courts or the Supreme Court of India. that due to the absence of sentencing guidelines in what constitutes

absence of sentencing guidelines in what constitutes "rarest of the rare "rarest of the rare", in some less", in some less gruesome murders, the lower courts have awarded death sentences possibly due to poor gruesome murders, the lower courts have awarded death sentences possibly due to poor defence presented by the lawyers of the economically backward.

defence presented by the lawyers of the economically backward.

Th

Th e de deeath penalty iath penalty i s s carrcarr ii eed out by hand out by han gingin g. After g. After a 1983 ca 1983 chalhal lenge to lenge to thithi s s metmethod, thehod, the S

Suprupr eeme me Court rCourt r ulul eed that hanging did not id that hanging did not i nvolve nvolve torturtortur ee, ba, barbarirbari ty, ty, humhum ilil iation, or,iation, or, degradation.

degradation.MohammadMohammadAfzaAfzal l (Afza(Afzal l GuruGuru ) ) was convicted of conspiracy in connection with was convicted of conspiracy in connection with

HISTORY

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the 2001 Indian Parliament attack and was sentenced to death. The Supreme Court of India the 2001 Indian Parliament attack and was sentenced to death. The Supreme Court of India upheld the sentence, ruling that the attack

upheld the sentence, ruling that the attack"" sshockhockeed the consd the conscience of thcience of th e e ssociety at larociety at lar ge.ge." "

Afzal was scheduled to be executed on October 20, 2006, but the sentence was stayed. The Afzal was scheduled to be executed on October 20, 2006, but the sentence was stayed. The Afzal case remains a volatile political issue.

Afzal case remains a volatile political issue. On May 3, 2010,

On May 3, 2010, AjAj mal Kmal K asasab ab was found guilty of numerous charges and was sentenced towas 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 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 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 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 death row in India. Kasab was handed capital punishment for killing 72 people and waging war against the state.

war against the state. In its recent judgment in

In its recent judgment in MM ulul la Vs. Sla Vs. State tate of Uof U P P , the Supreme Court has continued with the, the Supreme Court has continued with the trend of emphasising the extremely limited scope of the rarest of rare doctrine first trend of emphasising the extremely limited scope of the rarest of rare doctrine first formulated in Bachan Singh.

formulated in Bachan Singh. JuJu sstiti ce ce SSii nhnh a'a' s cs controntr ii butibuti on to thon to th e de deeath penalty debath penalty debateate,, where he

where he rr eepepeateatedly emphasdly emphasii sseed the fund the fun damedamental ntal precoprecondindi tion tion in in Bachan SinBachan Sin gh--gh-- -th-th atat rr aresarest of rt of r are care casase e wilwil l be l be one one where 'the altewhere 'the alterr natinati ve ve option [option [ of lof l ifif e e imim pripri ssonment] ionment] i ss un

un quesquestiti onably onably ff orecorecloselosed.' d.' We have also previously looked at his landmark judgment in We have also previously looked at his landmark judgment in Santosh Bariyar in some detail. Justice Sathasivam's judgment in

Santosh Bariyar in some detail. Justice Sathasivam's judgment in Mulla Mulla seems to be informed seems to be informed by a similar spirit. A few extracts from th

by a similar spirit. A few extracts from the judgment follow:e judgment follow:

The following propositions emerge from Bachan Singh The following propositions emerge from Bachan Singh casecase

1.

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

culpability. 2.

2. Before opting for the death penalty the circumstances of the `offender' also requireBefore opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'.

to be taken into consideration along with the circumstances of the `crime'. 3.

3. Life imprisonment is the rule and death sentence is an exception.In other wordsLife 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 death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment

an altogether inadequate punishment having regard to the relevant having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant regard to the nature and circumstances of the crime and all the relevant circumstance.

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4.

4. A balance sheet of aggravating and mitigating circumstances has to be drawn upA 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 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 and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

circumstances before the option is exercised. This Court in

This Court in BachhBachh an Singhan Singh '' s s v. v. SState tate of Punof Pun jab jab (supra) has held that:"A real and abiding (supra) has held that:"A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's 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 instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

option is unquestionably foreclosed." ThTh eerr eeff ore, it iore, it i s s opeopen fn f or thor th e e court to grcourt to gr ant a deant a deathath pe

penalnal ty in ty in an extran extr eemely narmely nar rr ow sow seet of t of cascaseess, whi, whi ch ich i s ss signign ifif ii eed by the phrase d by the phrase `r`r aresarest of t of thethe rare'.

rare'. This rarest of the rare test relates to This rarest of the rare test relates to "" sspepecial cial rr eeasasons" ons" under Section 354(3). under Section 354(3). Importantly, as the Court held,

Importantly, as the Court held, thithi s s rr oute is oute is opeopen to thn to th e e CourCour t onlt onl y whey when thn th eerr e e is no otheris no other pun

pun ii sshment whihment whi ch may be ch may be alternaltern ativeatively gily gi veven n . This results in the death penalty being an. This results in the death penalty being an exception in sentencing, especially in the case where some other punishment can suffice. It exception in sentencing, especially in the case where some other punishment can suffice. It was in this context that the Court had noted:

was in this context that the Court had noted:"" The eThe expresxpresssion ion "" sspepecial rcial r eeasasonsons" " in in thethe conte

context of xt of thithi s s provisionprovision , ob, obviously meviously means ans "" eexcexceptionption al ral r eeasasons" ons" ff ounoun deded on thed on the e

excexceptionption allall y grave cy grave cirir cumstacumstancences s of tof t he partihe parti culcul ar ar cascase ree relatilati ng to thng to th e ce crr imim e ae as s well well as as thethe c

criminariminal"l"

 

To decide whether a case falls under the category of rarest of rare case or not was completely 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 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 were to be kept in mind while deciding the question of sentence. One of the very important principles

principles is regis regarding arding aggravating aggravating and mitiand mitigating gating circumstances. circumstances. It has It has been been the vithe view of ew of thethe court that while deciding the question of sentence, a balance sheet of aggravating and court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn.

mitigating circumstances in that particular case has to be drawn. FF ulul l weightage l weightage sshouhou ll d bd bee give

given to thn to th e e mimi titi gating cirgating cir cumscumstancetances s and eand eveven afn af teter r that ithat i f thf th e e court court feefeels that jls that j ustice ustice wilwil ll not be done

not be done iif anf an y puny puniisshmhm eent lnt l eesss s ththan than th e e dedeath seath sentnteence is ance is awarwar deded, then and, then an d thd th een onn on llyy death se

death sentnt ence ence shoushoulld be d be iimposed.mposed.

The principles laid down by the apex court in

The principles laid down by the apex court in MM acachhi hhi ssinin gh v. Sgh v. State tate of Punof Pun jab jab were were reiterated in it's latest judgment in

reiterated in it's latest judgment inSSushil ushil MM urur mu Vs. mu Vs. SState tate of Jhof Jh arkharkh and and : :"" II n raresn rarest ot of rarf rar ee cas

caseess, when th, when th e e collcoll eectictive ve conscconscii ence ence of of ththe e commucommunini ty ity is s sso so shockhockeed thd that iat it wit wi lll l eexpect thexpect the

Rarest of rare cases

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hol

hol dederr s s of thof th e e juju dicidici al poweal power center center tr t o ino in flfl ict deict death peath penalnal ty irty ir rr eesspepective ctive of thof th eeir ir peperr ssonalonal opin

opin ii on as regon as regards deards dessirir abilabil itit y or y or otherwiotherwi sse oe of f rr eetaintain inin g deg death penalty, death penalty, death seath sentence ntence cancan

be awarded.”

be awarded.” The SC has also discussed such circumstance in various cases. TheseThe SC has also discussed such circumstance in various cases. These circumstances include:

circumstances include: 1.

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

dastardly manner so as to arouse intense and extreme indignation of the community. dastardly manner so as to arouse intense and extreme indignation of the community. 2.

2. Murder for a motive which evinces total depravity and meanness.Murder for a motive which evinces total depravity and meanness. 3.

3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrathMurder of a Scheduled cast or Scheduled tribe- arousing social wrath 4.

4. Bride burning/ Dowry death.Bride burning/ Dowry death. 5.

5. Murderer in a dominating position, position of trust or in course of betrayal of theMurderer in a dominating position, position of trust or in course of betrayal of the motherland.

motherland. 6.

6. Where it is enormous in proportion.Where it is enormous in proportion. 7.

7. Victim- innocent child, helpless woman, old/infirm person, public figure generallyVictim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.

loved and respected by the community.

If upon taking an overall view of all the circumstances and taking in to account the answers 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 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. 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 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 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, economic depravity justify moral depravity, but we certainly recognize that in the real world, such factors may lead a person to crime. The

such factors may lead a person to crime. The 48th r48th r eeport of port of the Lthe L aw Commissaw Commission ion also also reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt, reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt, but th

but they may ey may amount to amount to mitigating cimitigating circumstances. rcumstances. Socio-economic Socio-economic factors factors lead us lead us to anoto anotherther related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to 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 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 reform. This court on many previous occasions has held that this ability to reform amount to a mitigating factor in cases of death penalty.

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In

In JagmohJagmoh an v. San v. State otate of Uf U .P.P the question of constitutional validity of Sec. 302, I.P.C. wasthe 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 discussed in detail by the SC. Apart from the constitutional validity, the SC also discussed position

position in in other other countries, countries, the the structure structure of of Indian Indian Criminal Criminal law, law, various various policies policies and and billsbills proposed

proposed in in the the parliament parliament , , the the extent extent of of Judicial Judicial discretion discretion etc. etc. On On the the question question ofof constitutional validity the Court observed:

constitutional validity the Court observed:"" ThTh e Cr.P.C. require Cr.P.C. requir ees that the acs that the accuscuseed mud mu sst bet be ques

questiti oned with oned with rr eegard to gard to the cirthe cir cumscumstancetances as appeppeariari ng ng against hiagainst hi m im i n n the ethe evidevidence . Hnce . H e ise is also que

also quesstiti oneoned ged generalneral ly on ly on the casthe case ae and thnd th eerr e is ae is an n oppoopporr tuntun ity fity f or or hihi m to say wm to say whether hhether h ee want

want s s to sto say ..ay ... ... II n in i mpormpor tantant cast cases es lliike murke mur dederr , the Cour, the Cour t alt always ways gives gives a chana chance ce to thto thee accused to address the Court on the question of Sentence. Under the Cr.P.C. after accused to address the Court on the question of Sentence. Under the Cr.P.C. after convi

convi cticting thng th e e accusaccuseed, the d, the CourCour t has t has to pronto pron ounoun ce ce ththe e ssentence entence accordiaccordi ng to lng to law...aw..."."

On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life of convict 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 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 constitution. Thus, the SC settled this controversy long back in 1973. However even after Jagmohan's case this question came up again and again.

Jagmohan's case this question came up again and again. The SC reviewed

The SC reviewed Jagomhan' s CasJagomhan's Case e in the case of in the case of Bachan Bachan SSinin gh Vs. Sgh Vs. State tate of Puof Pu njnj ab ab

because after

because after Cr. P.C. 1973 , deatCr. P.C. 1973 , death sentence ceaseh sentence ceased to be d to be the normal penalthe normal penalty for murder [ ty for murder [ 354354 (3)]. Another reason was that

(3)]. Another reason was thatMM aneka aneka GandhiGandhi '' s s cascase e gave a new interpretation to Art. 14,19 gave a new interpretation to Art. 14,19 and 21 and their interrelationship . Main issues before the SC were constitutional validity of 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.

Sec. 302 of the I.P.C . as well as constitutional validity of Sec. 354 (3) of Cr.P.C.

Legality of Death Sentence

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The SC in the case of

The SC in the case ofBachan Bachan SSinin gh Vs. gh Vs. SState tate of Puof Pu njnj ab ab observed-

observed-"...if not withstanding the view of the abolitionists to the contrary , a very large segment of "...if not withstanding the view of the abolitionists to the contrary , a very large segment of people, the world over, incl

people, the world over, including sociologists , legisluding sociologists , legislature , Jurists , judges and adature , Jurists , judges and administratorsministrators still firmly believe in the worth and necessity of capital punishment for the protection of

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 society, if in the perspective of prevailing crime conditions in India, contemporary public opinion canalized through the peoples representatives in parliament, has repeatedly including 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 the one made recently to abolish or specifically restrict the area of death penalty, if death penalty is still a recogni

penalty is still a recognized legal sanction for muzed legal sanction for murder or some types of murrder or some types of murder in most of theder in most of the civilized countries in the world , if the farmers of the Indian constitution were fully aware of 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 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, 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 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

354 (3) were before the Parliament when it took up revision of the Cr.P.C.,., iit it is s not possnot possiiblblee to held th

to held th at the provisat the provisii on of on of dedeath penalty as ath penalty as an alan al teterr natinati ve ve punpun ishment for ishment for murmur dederr , in , in sseec.c. 302,

302, PePenal nal Code Code iis s unun rr eeasasonable and not ionable and not in thn th e e publpubl ic iic interesnterest. Tht. Th e e imim pugned ppugned prr ovisovision ion inin Se

Sec. 30c. 302 , v2 , viiololates ates neitneit her ther the letter nhe letter n or or ththe e eeththos os of Aof A rr titi cle 19" cle 19" . [ Para 132] . [ Para 132]

 

The SC in the case of

The SC in the case of Bachan SinBachan Sin gh v. Sgh v. State tate of Punof Pun jab jab considered a no. of opinions from all considered a no. of opinions from all over the world. Out of them, the opinion of Sir James Fitziames Stephen, the great Jurist, who 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

was concerned with the drafting of I.P.C. is very important to

mention-"

" No other puNo other pu nini sshment dehment deteterr s s man so man so eeffff eectuallctuall y fry fr om coom commimmi ttitti ng cring cri mes mes as as thethe pun

pun ii sshment of hment of dedeath ath ” ” . This is one of those propositions which is difficult to prove simply . This is one of those propositions which is difficult to prove simply because

because they they are are in in themselves themselves more more obvious obvious than than any any proof proof can can make make them. them. In In anyany secondary punishment, however terrible, there is hope, but death is death, it's terrors cannot secondary punishment, however terrible, there is hope, but death is death, it's terrors cannot be described more

be described more forciblyforcibly. " . " ThTh esese ve viieews are vews are verr y sy strtr ong ong answeanswerr s to the pes to the people whople who opposo opposee de

death puath pu nini sshment wihment wi th th the arguthe argu mements that ints that it doet does not ss not seerr ve ve pepenolnol ogical ogical purpur pospose e ” ” ..

 

Reasonableness of Death Sentence

Whether death Penalty serves any penological purpose?

When can Death Sentence be granted ?

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As have been stated earlier, after Cr.P.C. , 1973, death sentence is the exception while life 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 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 death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh's Case and observed:

Bachan Singh's Case and observed:“ “ A rA r eeal and abal and abidiidi ng cong concencern rn for for the the dignidigni ty oty of hf h umanuman lili fe pofe posstultul ateates s rr eessistance istance to takito taki ng a ling a li ff e e thrthr ough lough l aw'aw' s s inin sstrtr umentaliumentali ty. That ought to bety. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably done save in the rarest of rare cases when the alternative option is unquestionably for

for eecloscloseed..d..""

For all the offences, in which death sentence is the punishment, it may be noted that it is 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 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 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 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 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 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 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.

debate going on, about the extent of this judicial discretion.

 

In

InJagmohanJagmohan '' s Cass Case e the SC held :- the SC held

:-"

" The sThe strutru cture cture of our crof our cr imiimi nal lnal law waw whihi ch is ch is pripri ncipallncipall y cy contained ontained in in the the IIPC aPC and thend the CR.P.

CR.P.C. unC. un dederr taketakes the ps the polioli cy that whcy that wh een n the legisthe legislatulatu rr ees have s have dedefifi ned an ofned an of fence wfence wii thth clar

clar ii ty and presty and prescricri bebed the maximud the maximu m punm pun ii sshment, therefore a wide hment, therefore a wide discdiscrr eetiti on ion in thn th e e mattematterr of f

of f ii xixi ng the deng the degree gree of punof pun ishment sishment shoulhoul d be d be allall oweowed to judged to judgess."."

Thus the SC was in favour of wide discretion to be given to judges for deciding the degree of Thus the SC was in favour of wide discretion to be given to judges for deciding the degree of punishment.However, this vi

punishment.However, this vide direction was restricted de direction was restricted by section 354(3) of Cr.P.C. 1973by section 354(3) of Cr.P.C. 1973 which laid down the law that for death sentence special reasons are to be recorded , meaning 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.

thereby , that death sentence is to be imposed in special cases only. In a case the court observed :

In a case the court observed :

Judicial Discretion

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"

" ThTh e e discdiscrr eetion tion to imto im pospose e the sthe seentence ntence of death or lof death or l ifif e e imim pripri ssonment is not sonment is not so vide ao vide after fter allall s

seection ction 354 (3) has narr354 (3) has narr oweowed the discd the discrr eetion tion . Death s. Death seentence ntence iis s ordiordi narnar ilil y ruy ru led out andled out and can onl

can onl y be y be imim posposeed for d for sspepecial cial rr eeasasons Judgeons Judges s are left are left with with the tasthe task of k of discdiscoveoverr ii ng 'ng ' Sp

Speecial cial rr eeasasons'ons'..

In the case of

In the case of DalbiDalbi r r SSinin gh v. Sgh v. State tate of Punof Pun jab jab the court expressing its concern for the way in the court expressing its concern for the way in which this discretion was being used . " Notwithstanding the catalogue of grounds warranting 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 death sentence as an exceptional measure, 'life' being the rule , the judicial decisions have been

been differing differing (and (and dithering) dithering) at at various various levels levels with with the the result result the the need need for for a a through through re- re-examination has been forced on courts by counsel on both sides" . .

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. In Bachan Singh's case this problem was solved by the apex court itself to a very large extent. The court observed:

The court observed:" " II t is imperatit is imperati ve ve to voto voii ce ce the cothe concencerr n thn th at coat courur tsts, aide, aided by d by the broadthe broad ilil lulu sstrtr ative ative guigui dedelili nes nes inin dicatedicated by d by us, us, wilwil l dil di sscharge the charge the onerous funonerous fun ction wiction wi th evth eveerr mormor ee s

scrucru pulpul ous ous care care and humand hum ane ane conceconcerr n, dirn, dir eectected along wid along wi th hth h igh righ r oad oad of lof l eegislatigislati ve ve polipoli cycy outl

outl ii ned in Sened in Sec. c. 354(3).354(3)..."."

A brief analysis of the cases decided by the SC. Regarding the question of death sentence 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.

over last 25 years will reveal how differing/dithering the judgments have been.



 InIn KurKur ami aliami ali as as MM utha v. Sutha v. State tate of Tamil of Tamil Nadu Nadu , the accused was a poor agriculturist , the accused was a poor agriculturist and had a wife and five children to support, but considering the murder of two persons 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 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 case, and till that time the principle of aggravating and initiating circumstances was not laid down.

not laid down.



 While, inWhile, in a brutala brutal and dear case of and dear case of bride burning bride burning the S.C. observed: the S.C. observed: "From the judgment of the High Court, it is apparent that death sentence is awarded "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 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 swayed by emotion and indignation. Ultimately the death sentence was commuted to life imprisonment."

life imprisonment."



 In 1994, while deciding the case ofIn 1994, while deciding the case of AnAn sshad v. Shad v. State tate of Kof K arnarn ataka ataka , the SC Commuted, the SC Commuted death sentence to life imprisonment while the accused was convict of a brutal, 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 diabolical murder. The sentence was commuted because the SC felt that there are

Need For Guidelines

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chances of reformation of accused. With due respect to the court's view, it is 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 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, 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

it can be done on the line of SC's judgment inJaveJaved Ahd Ah med Abdul med Abdul HH amid pasamid passsawa v.awa v. S

State tate of Mof M aharahar asastrtr a a on this case. The death sentence of accused was affirmed in 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 1983, but later, on the basis of serious atonement, the SC commuted the sentence to life imprisonment.

life imprisonment.



 Then comes the very important case ofThen comes the very important case ofMM ohd. Chaman v. Sohd. Chaman v. State tate (N.C.T.) of D(N.C.T.) of D eell hi hi . In . In this case

this case a one and hala one and hal f year olf year ol d gird gir l l was was rr apeaped by the acd by the accusecused, and bed, and because cause of tof thehe henious act, she sustained serious injuries and died

henious act, she sustained serious injuries and died . H.C. confirmed the death. H.C. confirmed the death sentence awarded by the sessions Court. But

sentence awarded by the sessions Court. But the Hthe H on'on' ble Sble SC commuted the deC commuted the deathath s

seentence ntence iinto lnto l ifif e e imim pripri ssonment onment , observing :- "The crime committed is undoubtedly, observing :- "The crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible . It reveals a 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 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 desires.... We are not persuaded to accept that the case can be called one of the ' rarest of rare cases' deserving death penalty.

of rare cases' deserving death penalty.We We fifi nd it dind it di ffff iculicul t to hold that the t to hold that the apappepellll ant isant is s

such uch a dangea dangerr ous pous peerr sson thon th at to sat to spare hipare hi s s llifif e e wilwil l l eendanger thndanger th e e communicommuni ty. Ity. I t ist is our

our consconsidered videred view that thiew that th e e cascase is oe is one in ne in whiwhi ch a hch a h umanuman ii sst approach shoult approach shoul d bed be take

taken n in in the matthe matteter r of awardiof awardi ng punng pun ishmeishment " nt " on the question of extent of judicial on the question of extent of judicial discretion, the court observed :

discretion, the court observed :

"Such standardization is well nigh impossible. Firstly degree of culpability cannot be "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 , measured in any case. Secondly criminal cases cannot be categorized there being infinite , unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing procedure

procedure will will cease cease to to be be judicial. judicial. And And fourthly fourthly , , such such standardizatistandardization on or or sentencingsentencing discretion is policy matter belonging to the legislature beyond the courts functions" .

discretion is policy matter belonging to the legislature beyond the courts functions" .

Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be 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 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 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 ; 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 Machhi Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the present

present social social scenario, scenario, then then these these guidelines guidelines have have to to be be strictly strictly complied complied with, with, so so that that thethe persons convicted f

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The Indian Supreme Court had another opportunity to rectify its position, when the case of The Indian Supreme Court had another opportunity to rectify its position, when the case of

V. Mohini Gir

V. Mohini Gir i v. i v. Union of InUnion of In dia dia 22 was argued before it in 2002. In this case the petitioner 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 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 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 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.

guideline arguing that it would curtail the judicial discretion of the bench.

 

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

individuals convicted of rape33

State

State Of UOf U ttar ttar PrPr adeadessh Vh V ss.S.Satiati sshh 4 4

Stressing that leniency in punishing grave crimes would have serious consequences the 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 supreme court has awarded the death penalty to a man for the rape and murder of a six year old girl.

old girl.

 

In cases where there are more than one accused, and murder has been committed by several In cases where there are more than one accused, and murder has been committed by several persons,

persons, under under section section 34 34 of of IPC, the IPC, the act act done done by by one one will will be be considered considered to to be be acts acts done done byby all. So if a lesser sentence of life imprisonment is awarded to one accused, then the 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 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.

role of any one of them in the commission of the crime is more that of others. In

In WazWazii r Sinr Sin gh v. Sgh v. State tate Of PuOf Pu njnj ab ab the Supreme Court held that the distinction made in the the 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 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.

accused was also reduced to the one transportation of life.

2 2 2002 AIR SCW 5306 2002 AIR SCW 5306 3 3

Hindustan Times 19 April 2000 Hindustan Times 19 April 2000

4 4

08.2.2005 08.2.2005

Death Sentence For The Offence Of Rape

Lesser Sentence To Co- Accused

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 

Delay in execution of death sentence is a factor which may be taken into consideration for Delay in execution of death sentence is a factor which may be taken into consideration for commuting the sentence of death to life imprisonment.

commuting the sentence of death to life imprisonment. In the case of

In the case of SSmt Trimt Tri vevenini beben v. n v. SState tate of Gujof Guj arat arat the Supreme Court held that "....undue the Supreme Court held that "....undue long delay in execution of the death sentence will entitle the condemned person to approach 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 this court will under Art 32, but this court will only examine the nature of delay caused and circumstances ensued after sent

circumstances ensued after sentence was finally confirmed by the judicial process…..Noence was finally confirmed by the judicial process…..No

fixed period of delay could be held to make the sentence of death in executable. fixed period of delay could be held to make the sentence of death in executable.