Chapter - IV
Execution of Death
Sentence in Context of
Indian Laws
CHAPTER – IV
EXECUTION OF DEATH SENTENCE IN CONTEXT OF INDIAN
LAWS
INTRODUCTION :
Between 1975 and 1991, about 40 people were executed. The
number of people executed in India since independence in 1947 is a matter
of dispute; official government statistics claim that only 52 people had been
executed since independence, but the People's Union for Civil Liberties cited
information from Appendix 34 of the 1967 Law Commission of India report
showing that 1,422 executions took place in 16 Indian states from 1953 to
1963, and has suggested that the total number of executions since
independence may be as high as 3,000 to 4,300. At least 100 people in
2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to
death (but not executed), according to Amnesty International figures. No
official statistics of those sentenced to death have been released.
On April 27, 1995 Auto Shankar was hanged in Salem, Tamil Nadu.
Since 1995 only one execution, that of Dhananjoy Chatterjee in August
2004, took place.
About 26 mercy petitions are pending before the president, some of
them from 1992. These include that of Khalistan Liberation Force terrorist
Davinder Singh Bhullar who was convicted for killing nine persons and
injuring 31, the cases of slain forest brigand Veerappan's four associates—
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Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran—for killing 21
policemen in 1993 ; Gurdev Singh, Satnam Singh, Para Singh and Sarabjit
Singh, given death penalty for killing 17 persons in a village in Amritsar in
1991 ; and one Praveen Kumar for killing four members of his family in
Mangalore in 1994.
Afzal Guru was convicted of conspiracy in connection with the 2001
Indian Parliament attack and was sentenced to death. The Supreme Court of
India upheld the sentence, ruling that the attack "shocked the conscience of
the society at large." Afzal was scheduled to be executed on October 20,
2006, but the sentence was stayed. The Afzal case remains a volatile
political issue.
On 3 May 2010, an Mumbai Special Court convicted Ajmal Kasab of
murder, waging war on India, possessing explosives, and other charges. On
6 May 2010, the same trial court sentenced him to death on four counts and
to a life sentence on five other counts. Kasab has been sentenced to death
for attacking Mumbai and killing 166 people on 26 November 2008 along
with nine Pakistani terrorists. He was found guilty of 80 offences, including
waging war against the nation, which is punishable by the death penalty.
Kasab's death sentence was upheld by the Bombay High Court on 21
February 2011.
On 5 March 2012, a sessions court in Chandigarh ordered the
execution of Balwant Singh Rajoana, a Babbar Khalsa militant, convicted for
his involvement in the assassination of Punjab Chief Minister Beant Singh.
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The sentence was to be carried out on 31 March 2012 in Patiala Central Jail,
but the Centre stayed the execution on March 28 due protests from hardline
Sikh groups.
On 13 March 2012, a court in Sirsa, Haryana, awarded death penalty
to 22-year-old Nikka Singh for raping a 75-year-old woman and later
murdering her by gagging her mouth with a shawl and by strangulating her
neck with her salwar on February 11, 2011. "Imposition of death sentence is
most appropriate in this case. The court has held that it was a cold-blooded
murder and where rape was committed on an innocent and hapless old
woman," said Neelima Shangla, the Sirsa additional district and sessions
judge. "The rape and cold-blooded murder of a woman, who was of
grandmother’s age of the accused, falls in the rarest of the rare case." The
court held that Nikka Singh was a "savage" whose "existence on earth was a
grave danger to society" as he had also attempted to rape two other village
women.
The approach of Indian Courts and laws must be seen in such
perspective that they have pulled Death Penalty to be retained in Indian
Penal system. Nevertheless Indian Penal system has not scalded death
penalty. It has put Death penalty in utmost importance and is so awarded for
rare crimes in rare cases for rare Criminal. As the precision of Indian Laws
and procedures strive to reach Justice. It strives for punishment for guilty
and it strives for innocent to be not sentenced even unknowingly. However
there are procedural hazardous which are tried to be minimized. The position
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of Death penalty, its positive ends & negative ends in Indian laws is
conversed here in this Chapter.
4.1 Execution of death sentence in context of Indian Law
The ancient law of crimes in India provided death sentence for quite a
good number of offences. The Indian epics viz, the Mahabharata and the
Ramayana also contain references about the offender being punished with
vandal and which meant amputating the criminals to death are known to
have existed which included changing and imprisonment of the offender.
During the medieval period of moguls rule in India, the sentence of death
revived in its crudest form. At times the offender was made to dress in the
tight robe prepared out of freshly slain buffalo skin and thrown in the
scorching sun. The shrinking of the law hide eventually caused death of the
offender in agony, pain, suffering death penalty was by hailing the body of
the offender on walls. These modes of putting an offender to death were
abolished under the British system of criminal justice administration during
early decades of nineteenth century when death by hanging remained the
only legalized mode of inflicting death sentence.
The execution of death sentence in India is carried out by two various
states provide for the method of execution of death sentence in India. Once
modes namely hanging by neck till death and being shot to death. The jail
manuals of various states provide for the method of execution of death
sentence in India. Once death sentence is awarded and is confirmed after
exhausting all the possible available remedies the execution is carried in
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accordance with section 354 (5) of the Cr.P.C. 1973 i.e. hanging by neck till
death. It is also provided under the Air force act, 1950, the Army act 1950
and the Navy act 1952 that the execution has to be carried out either by
hanging by neck till death or by being shot to death.
Death penalty in India is awarded as punishment for various crimes
under various acts. The acts and the provisions for death penalty are
discussed below.
1. Criminal Procedure code 1973 (Cr. P.C.)
The Criminal Procedure Code, 1973 (Cr. P . C.) is a comprehensive
law that sets out procedural rules for the administration of criminal justice.
The 1973 Code was the result of a major overhaul of the previous Code of
1898. The Code covers procedures form the registration of an offence, to the
powers, duties and responsibilities of various authorities involved in
investigation as well as procedural safeguards, provisions relating to bail and
so on. The Code also elaborates on the principles and procedures governing
the conduct of trials, the manner of admission of evidence and related
issues, culminating in provisions that govern the handing down of a
judgment at the end of a trial in a criminal prosecution. The Code also
contains provisions relating to the right of convicted persons to file revision
petitions and appeals in higher courts of law.
The code of criminal procedure, 1973, also contains a provision
regarding death sentence. Section 354(3) of the code provides that while –
“When the conviction is for an offence punishable with imprisonment for life
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the judgment shall state the reasons for the sentence awarded, and in the
case of sentences of death, the special reasons for such sentence.” The
court must record “Special reasons” justifying the sentence and state as to
why an alternative sentence would not meet the ends of justice in that
particular case. Commenting on this provision of the code, Mr. Justice
V.R.Krishna Iyer of the supreme court of India observed that the special
reasons which section 354 (3) speaks of provides reasonableness as
envisaged in article 19 as a relative connotation dependent on a Varity of
variables, cultural, social, economic and otherwise. 1
4.2 Difference between criminal law in general and Special Laws that
provide death penalty
Unless special provisions are contained within the above – mentioned
laws, the procedures set out in the Cr.P.C are followed in relation to the
investigation and prosecution of crimes under these laws. Crucially, a
number of these laws include changes to the rules relating to the
appreciation of evidence at trial stage. For example, a number of laws
relating to alleged acts of “terrorism’’ have permitted the use of confessions
made by an accused to a police officer as evidence. Under ordinary criminal
law, such confessions are inadmissible and of no evidentiary value largely
because of concerns about the use of torture by police to extract
confessions. Similarly, while admissions made by one accused about
1
sec.354(3) of the code of criminal procedure pg.537.
137
another co-accused are not admissible under the ordinary criminal law, in
some of the special laws such as TADA and POTA, the law has allowed for
certain presumptions to be drawn implicating other accused. While the
constitutionality of many such dangerous provisions has been challenged
and upheld by the Supreme Court of India, in practice there is clear evidence
that the implementation of many of these laws has been characterized by
misuse and abuse; this only heightens concern for those sentenced to death
under such legislations. 2
4.3 Procedure in Criminal Law for death penalty cases
The Cr.P.C. provides of the possibility of a three - stage judicial
process. Since all death penalty cases involve a charge of murder or similar
other serious offences, all initial trials under the ordinary criminal law are
held before a District and Sessions Court in a particular state, In the event of
the trial court awarding a death sentence, it is mandatory for the respective
High Court of the state to confirm the sentence (Section 366 Cr.P.C.). The
High Court has the power to direct further inquiry to be made or additional
evidence to be taken upon any point bearing on the guilt or innocence of the
accused at this stage (Section 367 Cr.P.C.). Based on its assessment of the
evidence on record, the high Court may: (i) confirm or pass any other
sentence, or (ii) annual the conviction and convict for any other offence that
the Sessions Court might have convicted the accused of or order a new trial
2
http:// www.hinduonnet.com/fline/f12515/stories/20080801251508200.htm]
138
on the basis of the amended charge, or (iii) acquit the accused person. The
High Court is also the first appellate court for a person sentenced to death.
At the third level is the Supreme Court of India. There is no automatic right of
appeal from the order of the High Court to the Supreme Court in death
penalty cases except in a situation in which the High Court has imposed a
death sentence while quashing a trial court acquittal. “Special Leave” to file
an appeal with the Supreme Court has to be granted by the High Court or
the Supreme Court has to give leave to file an appeal before it. In the case
of some special legislation such as the Terrorist and Disruptive Activities
(Prevention) Act 1987, provides that appeals against the ruling of the trial
court should automatically lie only with the Supreme Court (Though this Act
lapsed in 1995, trials under the Act continue to this day).
4.4 The procedure of appeal
Under the Cr.P.C. as part of the mandatory confirmation by the High
Court of a death sentence handed down by a trial court, a High Court bench
of a minimum of two judges must, on appreciation of the facts, come to its
own conclusion on guilt and award a sentence as deemed fit in the
circumstances of the case. As indicated above, if the High Court confirms
the death sentence, no automatic appeal is provided to the Supreme Court.
In the event that a trial court acquits an accused in a case involving a crime
punishable by death or other offences, the state alone can file an appeal
against acquittal before the High Court (Section 378 Cr. P.C.) The High
Court can either confirm the acquittal or set aside the acquittal and convict
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the accused for the alleged crimes and impose sentence. If the acquittal is
set aside and a death sentence imposed, Section 379 of the Cr.P.C.
provides for an automatic appeal to the Supreme Court. Appeals may also
be filed by the state for enhancement of sentence imposed by the trial court
or the High Court if it feels that the sentence imposed is inadequate (Section
377 Cr. P.C.). Ordinarily, relatives of the victims of the crime can file revision
petitions (but not appeals) seeking enhancement of the punishment in the
High Court or Supreme Court. Notably, while in the event that a High Court
overturns an acquittal and awards a death sentence there is an automatic
right to appeal to the Supreme Court, there is no such right in the event a
High Court enhances a trial court’s sentence to that of death. As noted
above, access to the Supreme Court for appeal can only be granted if the
High Court grants special leave or if special leave is granted by the Supreme
Court itself. The Supreme Court can dismiss a death sentence case in limne,
i.e. at the threshold stage itself without even admitting the appeal for
consideration.
4.5 The right to appeal – no automatic appeal to the Supreme Court
There is no automatic right of an accused to appeal to the Supreme
Court in capital cases. This is so even where the trial court may have
awarded life imprisonment but the High Court has enhanced the sentence to
death. The sole exception in law is made for cases where the High Court
overturns an acquittal and awards the death penalty, where Section 379
Cr.P.C. provides for mandatory appeal to the Supreme Court.
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4.6 P.I.L. in capital Cases
While the Supreme Court had entertained a petition filed in the public
interest by a social activist seeking commutation of a death sentence on the
grounds of delay in Madhu Mehta v. Union of India and ors3., the Court has
subsequently refused to entertain such public interest petitions despite
similar (if not more serious) grounds in Ashok Kumar Pandey v. the State of
West Bengal and ors4. Though, the Supreme Court had previously also
dismissed third – party petitions in Simranjit Singh Mann V Union of India 5
and Karamjeet Singh v. Union of India6, in these two cases the condemned
prisoners had themselves given oral and written instructions that no petitions
should be filed in the courts or for mercy on their behalf. The restriction on
third party intervention was extended even to the National Commission for
Women, which sought to intervene in the case of Panchi and ors v. State of
Uttar Pradesh7, where one of the accused was a woman with a suckling
child. The Supreme Court observed that, “under the
Code of Criminal
Procedure, National Commission for Women or any other organization
cannot have locus stand in this murder case.”Where petitions have been
filed by fellow prisoners, the Supreme Court has been more open. Thus in
Daya Singh v. Union of India and ors.8 a letter sent by a prisoner
incarcerated in Calcutta who read a reference to the delay on death row in
Daya Singh’s case was converted into a petition by the Court. Similarly in
3
AIR (1989) SC 2299
AIR (2004) SC 280
5
AIR (1991) SC 280
6
AIR (1993) SC 284
7
A.I.R (1998) SC 2726
8
A.I.R. (1991) SC 1548
4
141
Sukumar Barman alias Sulku and anr. Through Chander Kumar Banik v.
State of West Bengal 9, the Supreme Court accepted a postal communication
filed by a fellow death row prisoner, Chandra Kumar Banik, as a petition. 10
4.7 On Commutations and Clemency :
The judicial process comes to an end once the highest courts – either
the High Court (in cases where no appeal has been filed in the Supreme
Court or where special leave petitions have been dismissed) or the Supreme
Court (if special leave has been given) – have confirmed the death sentence.
The law provides that in such a situation the convict shall be ‘hanged by the
neck till is dead’ (Section 354 (5) Cr. P.C.) There are two ways in which a
convict can at this stage avoid execution. The first is a ‘commutation’ of the
death sentence by the appropriate government under provisions of the I.P.C.
and Cr.P.C. The second is a commutation or pardon granted by the
president of India or the Governor of the relevant state under Articles 72 and
161 of the Constitution of India.11 However the President and Governor can
exercise this power only on the ‘aid and advice’ of the Council of Ministers.
Article 72 (3) of the Constitution clarifies that the power of the President of
India to grant pardon and commutation in Article 72 (1) should not curtail the
exercise of similar power to commute death sentences given to the Governor
of the States concerned under Article 161. This provision is of critical
importance as the Constitution implicitly provides a two-tier process of
9
A.I.R.(1994) SCC (Cri) 36
http:// www.amnesty.orglen/ library/asset/ASA20/007/2008/en/f8d94e73-16dc-11dd-89e2-354
ccbabfb/asa2002008eng.html)
11
An article on Capital punishment and statutory frame work in India by- Dr.Aareti Krishna
10
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seeking pardon and commutation from Constitutional functionaries, and also
provides for the theoretical possibility of a difference in opinion between the
Governor of the State exercising power under Article 161 and the President
of India under Article 72. There is of course a fundamental difference
between the powers exercised by judicial bodies and those exercised by
executive / constitutional authorities. An appeal to higher judicial Court is
based on a challenge to the legal evidence heard at trial that has a bearing
on the guilt of the accused and to the sentence imposed. The process
focuses on the appreciation of evidence placed before the courts and is
therefore circumscribed both by the nature of the evidence as also the rules
relating to assessment of the evidence. The commutation powers of the
government and the President / Governors are not limited by the evidence
permitted before the courts. In the exercise powers to grant pardons and
commutations, they have the authority and the moral justification to go
beyond the legal position. Appeals to the executive are therefore often
based on background – personal and social factors that explain the conduct
of the convicted person, their psychological and cultural background and
other special features including material that could not be placed before the
courts.12
12
Lethal lottery-e-article on The death penalty in India -A Research paper by v. suresh (Amnesty India
Publication,may,2008
143
1. The Army Act
In section 34 provides for the offences in relation to the enemy &
punishable with death any person subject to this act who commits any of the
following offences, that is to say :
a)
Shamefully abandons or delivers up any garrison, fortress, post, place
or guard, committed to his charge, or which it is his duty to defend or
uses any means to compel or induce any commanding officer or other
person to commit any of the said act, or
b)
Intentionally uses any means to compel or induce any person subject to
military, naval or air force law to abstain from acting against the enemy,
or to discourage such person from acting against the enemy or
c)
In the presence of the enemy, shamefully casts away his arms
ammunition, tools or equipment or misbehavior is such manner as to
show cowardice or
d)
Treacherously holds correspondence with or communicates intelligence
to the enemy or any person in arms against the union or
e)
Directly or indirectly assists the enemy with money, arms ammunition,
stores or supplies or
f)
Treacherously or through cowardice sends a flag of truce to the enemy, or
g)
In time of war or during any military operation, intentionally occasions a
calculated to create at arm in action, camp, garrison or quarters, or
spreads reports calculated to create alarm or despondency, or
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h)
In time of action leaves his commanding officer or his post, guard,
piquet, patrol or party without being regularly relived or without leave, or
i)
Having been made a prisoner of war, voluntarily serves with or aids the
enemy, or
j)
Knowingly harbors or protects an enemy not being a prisoner, or
k)
Being a sentry in time of war or alarm, sleeps upon his post or is
intoxicated, or air forces of India or any forces co – operating therewith
or any part of such forces, shall on conviction by court martial be liable
to suffer death or such less punishment as is in this act mentioned.13
In section 37 provides for the infliction of death sentences in case the
accused, or any person subject to this act who commits any of the following
offences, that is to say
a)
Begins incites, causes, or conspires with any other person to cause
any muting in the military, naval or air forces of India or any forces co
– operation therewith, or
b)
Joins in any such muting, or
c)
Being present at any such muting, does not use his utmost end
eavaurs to suppress the same, or
d)
Knowing or having reason to believe in the existence of any such
muting, or of any intention to muting, or of any such conspiracy, does
not, without delay, give information thereof to his commanding or
other superior officer, or
13
Sec.34 of the Army Act 1950,pp.683,684,685
145
e)
Endeavors to seduce any person in the military, naval or air forces of
India for his duly or allegiance to the union, shall on conduction by
court martial, be liable to suffer death or such less punishment as is in
this act mentioned.
In section 163 deals with alteration of finding or sentence in certain
cases :
a)
Where a finding of guilty by a court martial, which has been
confirmed, or which doesn’t required confirmation, is found for any
reason to be invalids or cannot be supported by the evidence, the
authority which would have had power under section 179 to commute
the punishment awarded by the sentence, if the finding had been
valid, main substitute a new finding and pass on sentence for the
offence specified of the facts establishing the said offence.
b)
Where a sentence passed by a court martial which has been
confirmed, or which doesn’t required confirmation, not being a
sentence passed in pursuance of a new finding substituted under sub
section (1), is found any reason to be invalid, the authority referred to
in subsection clause (1) may passed a valid sentence.
c)
The punishment awarded by a sentence passed under subsection
clause (1) or subsection (2) shall not be higher in the scale of
punishments than, or in excess of, the punishment awarded by the
sentence for which a new sentence is substituted under this section.
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2. Indian Penal Code 1860 ( I.P.C.)
A death sentence may be awarded under the I.P.C. in the following
cases :
There are two categories of laws that provide for death sentences in
India : The Indian Penal Code, 1860 (I.P.C.); and Special or local legislation.
The source of the power to award death sentences arises from
Section 53 of the I.P.C. This is a general provision on punishment. The
I.P.C. provides for capital punishment for the following offences, or for
criminal conspiracy to commit any of the following offences (Section 120-B):
1.
Treason, for waging war against the Government of India (Sec. 121);
2.
Abetment of mutiny actually committed (Section 132);
3.
Perjury resulting in the conviction and death of an innocent person
(Section 194);
4.
Threatening or inducting any person to give false evidence resulting in
the conviction and death of an innocent person (Section 195 A):
5.
Murder (Section 302) and murder committed by a life convict (Section
303). Though the latter was struck down by the Supreme Court, it still
remains in the I.P.C.
6.
Abetment of a suicide by a minor, insane person or intoxicated person
(Section 307).14
14
Indian penal code,1986 pp.165-170,175
147
7.
8.
9.
Attempted murder by a serving life convict (Section 307 (2));
Kidnapping for ransom (Section 364 A); and
Dacoity (Armed robbery of banditry) with murder (Section 396).
The I.P.C. provides a definition of crimes and prescribes the
punishment to be imposed when the commission of a crime is established
through a trial process in a court of law in which evidences is placed before
the court and the accused is provided with an opportunity not only to test the
evidence of the prosecution but to also lead their own evidence, if so
desired.15
d)
Any finding substituted, or any sentence passed under this section
shall, for the purposes of this act and the rules made there under, have
effect as if it were a finding or sentence, as the case may be, of court martial.
3. Indian navy act
Provides for the form of death sentence “when any person is
sentenced to death, the sentence shall direct that he be hanged by the neck
till he is dead.16
The Army Act and Air Force Act also provide for the execution of the
death sentence. The procedure of execution of death sentence are though
not explained in details but the relevant provisions as has been mentioned in
this Report are important from the view of provisions pertaining to the
confirmation and revision petition too. The various provisions under these
15
16
Indian penal code 1960pp.145-155
Indian Navy Act,1957pp.54,56
148
Acts can be stated here as under, the Army Act, 1950, The Navy Act 1957
also provide for similar provisions like The Air Force Act, 1950. The
provisions of The Army Act, 1950, The Navy Act 1957 are similar in nature to
that of in The Air Force Act, 1950 providing for the option of the execution of
the death penalty by being shot at death.17 After referring to these relevant
provisions in these Acts inference can be drawn that the method of shooting
as one of the methods provided for execution of the death penalty under the
Act aims to make it simple and easy to be executed with the weapons and
equipments available with these forces. The form of shooting a condemned
man necessarily involves less agony as compared to that in the case of the
hanging in which there is an elaborate procedure as to weighting, measuring
of the height, etc. in order to determine the length of the drop specific
restrictions are also put as to wearing certain kinds of apparels, etc.
It may be pointed out here that during the Nuremberg trials after the
Second World War executions, the members of the German High Command
who were condemned to death opted for the execution of the death
sentence by being shot to death as against the method of hanging. They
wanted soldiers’ death by shooting instead of the degrading death by
hanging. This is sufficient to objectively assert that the execution by being
shot to death is simpler and less painful than hanging by neck till death. The
practice of this method both in various developing and developed countries
17
“The provisions relating to awarding the death penalty, in Army Act 1950 are enunciated in chapter
VI section 34(a) to (1)relates to offences in relation to the enemy and punishable with death,sec.37
deals with mutiny and provides for the infliction of death sentence in case the accused is
convicted.chapter VII pertains to punishments awardable by court martial,chapter XII is on
confirmation and reision,chapter XIII is on execution of sentences,sec.166 deals with form of sentence
of death.sec.147 of the navy act 1997 provides for the form of death sentence.”
149
is apparently because this method is simple, easy to execute and less
painful.
4. Special laws providing Death penalty
The legislation of India that has provisions of death sentence for
certain offences are as follows.
1.
Laws relating to the Armed Forces, for example the Air Force Act,
1950, the Army Act, 1950 the Navy Act, 1950 and the Indo – Tibetan
Border Police Force Act 1992.
2.
Defense and Internal Security of India Act, 1971.
3.
Defense of India Act, 1971 (Section 5).
4.
Commission of Sati (Prevention) Act, 1987 (Section 4(1)).
5.
Narcotic Drugs and Psychotropic Substance (Prevention) Act 1985,
as amended in 1988 (Section 31 A).
6.
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
(Section 3 (2) (i)).
7.
Prevention of Terrorism Act, 2002 (POTA) (Section 3 (2) (a)).
8.
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (Section 3(2) (i)).
9.
Explosive Substance Act, 1908, as amended in 2001 (Section 3 (b)).
10.
Arms Act, 1959, as amended in 1988 (Section 27).
11.
Unlawful Activities Prevention Act, 1967, as amended in 2004
(Section 16 (1)). 18
18
Nilndra kumar ,Law relating Armed Forces In India, Universal Law Publication,2005
150
A number of state laws, including: Maharashtra Control of organized
crime Act, 1999 (Section 3 (1)(i)), Karnataka Control of organized crime Act,
2000 (Section 3 (1)(i)), The Andhra Pradesh Control of organized crime Act,
2001 (Section 3 (1)(i)), the Arunachal Pradesh Control of organized Crime
Act, 2002 (Section 3 (1)(i)).
4.8 Death Sentence and Judicial Trends
The abolitionists see this provisions a green signal for dilution of
capital punishment while for the retentionists the special reasons
contemplated by section 354 (3) implicitly suggest, that death Sentence is
legally and constitutionally permissible.
In the case of Kunju Janardhanam v. State of Andhra Pradesh,19 the
accused, infatuated by the charm of a village girl committed brutal murder of
his innocent wife and his two minor sons while they were asleep in dead of
night. The girl on her part had warned the accused though her letters not to
destroy his happy family life by the illicit intimacy but the accused paid no
heed and chose to commit triple murder with extreme depravity. Although
the majority by 2:1 commuted death sentence to that of imprisonment for life
Mr. Justice A.P. Sen. in his dissenting judgment disagreed with the majority
and, observed:
“The accused who acted as a monster, did not even spare his two
Innocent minor children in order to get rid of his wife and issues through her
19
Cri.Appeal no.511 of 1978 disposed of along with Rajendra Prasad case. A.I.R.1979 S.C. 916
151
if death sentence was not to be awarded in a case like this I do not see the
type of offences which call for death sentence”.
Mr. Justice Krishna Iyer of the Supreme Court of India however, made
it clear in Rajendra Prasad v. State of UP20
that where the murder is
deliberate premeditated cold – blooded and gruesome and there are no
extenuating circumstances, the offender must be sentenced to death as a
measure of social defense.
In a way Rajendra Prasad’s case provided an appropriate opportunity
for the Supreme Court to express its view on need for dilution of death
penalty in the context of Indian society Citing extensively from Anglo
American literature’ available on the subject and the relevant case law. Mr.
Justice Krishna Iyer tried to derive at the point that special reasons referred
to under Section 354 (3) of the Code of Criminal Procedure must be liberally
construed so as to limit; death penalty only to rare categories of cases such
as white collar crime anti – social offences like hijacking or selling of
spurious liquor, etc. and hardened murderers. Justice Krishna Iyer
emphatically stated that by and large murders in India are not by a
calculated professionally cold – blooded planning but something that
happens on the spur of the moment due to sudden provocation passion
family feud or an altercation etc. motivates one to go to extreme and commit
the crime and therefore, there are prospects for reformation of the offenders
if they are not done away to death.
20
A.I.R.( 1979). S.C.916
152
The Supreme Court reiterated its approval for death sentence once
again in its decision in Chopra Children murder case.21 In this case the
accused Kuljeet Singh alias Ranga along with one Jashbir Singh alias Billa
committed gruesome murder of two teenage children Gita Chopra and her
brother Sanjay in a professional manner and was sentenced to death by
Additional District Judge, Delhi. The High Court confirmed the conviction and
death sentence whereupon appellant moved in appeal to Supreme Court.
Dismissing the appeal, the Supreme Court upheld the conviction and
sentence of the accused on the ground that the murder was preplanned,
cold – blooded and committed in most brutal manner; hence there were no
extenuating circumstances warranting mitigation of sentence.
In yet another case, namely, Javed Ahmad Abdul Hamid Paivala v.
State of Maharashtra, the Supreme Court upheld the sentence of death for a
gruesome and brutal murder.22
In the instant case the appellant was
convicted for multiple murders. He killed his sister-in-law aged 23 years, his
little niece aged 3 years, his baby nephew aged about one and half years
and the minor servant aged about 8 years. The motive of murders was the
golden ear rings and bangles of the deceased. The sister- in-law sustained
20 stab injuries, niece 13 stab wounds, servant 8 incised wounds and baby
niece 3 injuries the accused was convicted for murder, and sentenced to
death. His conviction was upheld by the High Court. He thereupon moved an
21
22
A.I.R.(1981) SC1572
A.I.R.(1983)SC 594
153
appeal to the Supreme Court only on the question of sentence. Dismissing
his appeal the Supreme Court, inter alias observed:
“The appellant acted like a demon showing no mercy to his helpless
victims three of whom were helpless little children and one a woman. The
murders were perpetrated in a cruel, callous and fiendish fashion. Although
the appellant was 22 years of age, and the case rested upon circumstantial
evidence, the Court was unable to, refuse to pass the sentence of death as it
would be stultifying the course of law and justice. It was truly the rarest of
rare cases’ the Court had no option but to confirm the sentence of death.”
A year later, the Supreme Court was once again called upon to settle
the controversy over choice between death penalty and imprisonment for life
but this time by a larger Bench of five Judges Overruling its earlier decision
in Rajendra Prasad, the Court by a majority of 4 to 1 majority view taken by
Mr. Justice Y.V. Chandrachud, J. Sarkaria, Gupta and Untavalia, JJ. While
Bhagwati, J. dissenting expressed a view that death sentence as an
alternative punishment for murder is not unreasonable and hence not
violative of Articles 14, 19 and 21 of the Constitution, because the “Public
Order” contemplated by clause (2) to (4) of art.19 is different from “law and
order”. Justifying retention of death penalty as an alternative punishment in
reference to Section 354 (3) of the Code of Criminal Procedure, 1973.
In the notorious Joshi Abhyankar murder case23 the accused
committed a series, of gruesome murders during January, 1976 and March,
23
A.I.R.(1987) SC.585
154
1977. They were sentenced to death by the trial Court which was confirmed
by the Bombay High Court on 6 April, 1979. The appellants thereupon filed
special leave petitions before the Supreme Court for commutation of death
sentence to one of life imprisonment as the ‘death’ was hovering over their
minds for five years. Two of the petitioners, namely, Shanta Ram Jagtap and
Munawar Shah pleaded that during this period, they had written a book
entitled “Kalyan Marg” in Marathi and translated “Sukshmaya Vyayar”.
Written in English by Dhirendra Bramhachari into Marathi. Dismissing the
petitions the Supreme Court observed that the book writing and translation
work of the petitioners believed that any specter of death penalty was
hovering over their minds during the period they have been in jail. Therefore,
any mercy shown in matter of sentence would not only be misplaced but will
certainly give rise to and foster a feeling of private revenge among the
people leading to destabilization of society.
The execution of death sentence by public hanging was held: as
barbaric and violative of Art. 21 of the Constitution even, if the Jail Manual
were to provide public hanging, it would be declared unconstitutional.
In Kamta Tiwari v. State of M.P. 24 the accused committed the rape on
a seven years old girl and strangulated her of death. He threw her body in a
well and caused disappearance of evidence. The accused was convicted for
the offences under Sections 363, 376, 302 and 201, IPC and was sentenced
to death by the trial court and the sentence was maintained by the High
24
A.I.R. (1996) SC 2800
155
Court also. In appeal, the Supreme Court upheld the decision of the lower
courts and held that this is a ‘rarest of rare cases’ where the sentence of
death is eminently desirable not only to deter others from committing such
atrocious crimes but also to give emphatic expression to society’s
abhorrence of such crimes. The Court, inter alia observed.
“Before opting for death penalty, the circumstances of the offender
also require to be taken into consideration along with the circumstances of
the crime. A balance – sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances have to be
accorded full weight age and a just balance has to be struck between the
aggravating and mitigating circumstances before the option is exercised”.
In yet another case, Ravji alias Ram Chandra v. State of Rajasthan 25
the Supreme Court found no justification in commuting the death penalty to
imprisonment for life. In this case, the accused had committed murder of five
persons including his wife and three minor children and attempted to commit
murder of two others. The act was committed in cool and calculated manner
while victims were asleep. There was absence of provocation or any psychic
disorder which could be attributed to these brutal and heinous murders.
Therefore, the Court found no Justification to commute the death penalty to
imprisonment for life and dismissed the appeal.
25
A.I.R.(1996)SC787
156
In Geneta Vijayavardhan Rao & another v. State of Andhra
Pradesh,26 the two appellants were accused of setting up a super express:
bus on fire by sprinkling petrol with the motive of plundering the passengers.
This resulted into roasting 23 passengers to death besides & a number of
passenger’s sustained serious burn injures. The defense plea was that the
accused were young and their prime motive was not murder but plundering
property and wealth was not considered sufficient enough to constitute
mitigating. Circumstances warranting commutation of death sentence to that
of imprisonment for life. The Apex Court ruled that considering the overall
picture, the case was one of the rarest of rare case not merely because of
record number of innocent human beings roasted. Alive but the inhuman
manner in, which the Scheme of crime was plotted and executed.
In Manohar Lal alias Munna & another v. State of Delhi,27 the two
accused (appellants) killed four sons in presence of the sole eye-witness; the
mother by setting them ablaze the incident was the result of the carnage
fuelled by the assassination of Mrs. Indira Gandhi which scored a heavy toll
on Sikh community in Delhi. The accused were convicted, for offences under
Sections 302 and 396 read. With Section 149 IPC by the Session Court and
sentenced to death on the first count and to life imprisonment on the other
The High Court of Delhi confirmed. The conviction and sentence thereupon,
the appellants filed the criminal appeal by special leave. The Supreme Court
held that the act of accused though gruesome, they had no special or
26
27
A.I.R. (2000) SC 420
A.I.R. (1996) SC 2791
157
personal enmity towards. The deceased persons it was the assassination of
Prime Minister Indira Gandhi which had & blind folded the accused, it could
be said that the act of the mob of which the appellants members were only
the result of a “temporary frenzy”. Therefore, sentencing accuses to death
would not be proper in the instant case and as such it is altered to that of
imprisonment for life.
In Dhananjoy Chatterjee alias Dhana v. State of West Bengal, 28 the
appellant was found guilty of committing rape and murder of a school going
18 years old girl in retaliation for his transfer as a security guard to some
other building complex, on the complaint by the deceased girl to her parents
that the appellant was teasing and harassing her. His appeal having failed in
the High Court and the Supreme Court and the mercy appeal being rejected
by the Governor of West Bengal and also the Hon’ble President of India, he
was finally hanged till death on 14th August 2004 in Alipore Jail of West
Bengal in execution of his death sentence. The facts of the case were as
follows:
The appellant was security guard deputed to guard the building
Anand Apartments. Deceased had made complaint about the teasing by the
appellant to her mother previously also and her father requested to replace
the appellant and accordingly he was transferred to Paras apartment.
Anguished from this, the appellant entered the house in the absence of other
members, committed rape and killed her. She was found dead on the floor
28
Cr.Appeal no. 393- 394 of 2004 decided on 26-03-2004
158
with her skirt and blouse pulled up and her private parts and breast were
visible with patches of blood near her head and floor. According to medical
evidence, hymen of the deceased showed fresh tear with fresh blood in the
margins and blood stains on the vagina and matted public hair. It is settled
law that when the case is based on circumstantial evidence, the motive also
gets importance. In the circumstance the chain of the evidence was so
complete that it led to the guilt of the accused. The High Court rightly upheld
the conviction and sentence of death.
Thus, the ill-fated victim Hetal Parekh was raped and murdered on
March 5, 1990 between 5.30 and 5.45 pm. In her Flat No. 3A, on the third
floor of Anand Apartment. The appellant was charged and tried for rape and
murder and also for an offence under Section 380, I.P.C. for committing theft
of a wrist-watch from the said flat. The learned Additional Session Judge
found him guilty and convicted the appellant (i) for an offence under Section
302 I.P.C. and sentenced him to death, (ii) for an offence under Section 376
I.P.C. and sentenced him to imprisonment for life, and (iii) for the offence
under Section 380 I.P.C., he was sentenced to undergo rigorous
imprisonment for, five years. The substantive sentences under sections 376
and 380 I.P.C. were ordered to, run concurrently but were to cease to have
any effect, in case the sentence of death for conviction of the appellant
under section. 302 I.P.C.was confirmed by the High Court and the appellant
was executed. Reference for confirmation of the death sentence was
accordingly made to the High Court. The appellant also preferred an appeal
159
against his conviction and sentence in the High Court. The criminal Appeal
filed by the appellant was dismissed and the sentence of death was
confirmed by the High Court. On special leave being granted, the appellant,
Dhananjoy Chatterjee alias Dhana, filed an appeal.
There were no eye witnesses of the occurrence and the entire case
rested on, circumstantial evidence in a case based, on circumstantial
evidence, the existence of motive assumes significance. Though absence of
motive does not necessarily discredit the prosecution case if the case stands
otherwise established by other conclusive circumstances and the chain of
such evidence is complete and takes one irresistible conclusion about the
guilt of the accused. In this case there was ample evidence on record to
show that the appellant had a motive to commit the alleged crime and
therefore the Court rightly found. The accused guilty of aforesaid offences.
Abscondence of the accused was sufficient to support the case against him.
The Court, therefore, rejected the belated and vague plea of alibi which it
considered to be only an afterthought and a plea in despair. The Court held
that prosecution has successfully established that the appellant alone was
guilty of committing rape of Hetal and subsequently murdering her.
As to the question of sentence, the trial Court awarded the sentence
of death and the High Court confirmed the imposition of capital, punishment
for the offence under section. 302 of I.P.C. for the murder, of Hetal Parekh.
Learned counsel submitted that appellant was, a married man of 27 year of
age and there were no special reasons to award the sentence of death on
160
him. It was further submitted that keeping in view the legislative policy
discernible from Section 235 (2) read with Section. 354 (3) of Cr.P.C. the
Court may make the choice of not imposing the extreme penalty of death.
On the appellant and give him a chance to become a, reformed member of
the society in keeping with the concern, for the dignity of human life. The
learned counsel for the State, on the other hand canvassed for confirmation
of the sentence of death so that it serves as a deterrent to similar depraved
minds. According to the learned State counsel there were no mitigating
circumstances; and the case was undoubtedly “rarest of the rare’’ case
where the sentence of death alone would meet the ends of justice. The
Court observed as flows:
“We have given, our anxious consideration to the question of
sentence keeping in view the changed legislative policy which is patent from
Section 354 (3) Cr. P.C. We have also considered the observation of this
Court in Bachchan Singh v. State of Punjab. 29 But in recent years, the rising
crime rate particularly violent crime against women has made the criminal
sentencing by the courts a subject of concern. “Today there is admitted
disparities. Some criminals; get Very harsh sentences while many receive
grossly different sentence for an essentially equivalent crime and a
shockingly large number even go unpunished thereby encouraging the
criminal and in the ultimate making justice suffer by weakening the system’s
credibility. Of course, it is not possible to lay down any cut and dry formula
29
A.I.R.(1983)SC 898
161
relating to imposition of sentence but the object of sentencing should be to
see that the crime does not go unpunished and the victim of crime as also
the society has the satisfaction that justice has been done to it. In imposing
sentences in the absence of specific legislation, Judges must consider
variety of factors and after considering all those factors and taking an overall
view of the situation, impose have also to be taken into consideration.
The Court further observed :“In our opinion, the measure of
punishment in a given case must depend upon the atrocity of the crime; the
conduct of the criminal and the defenseless and unprotected state of the
Victim. Imposition of appropriate punishment is the manner in which the
courts respond to the society’s cry for justice against the criminals. Justice
demands that courts should impose punishment befitting the crime So that
the courts reflect public abhorrence of the crime. The Court must; not only
keep in view the rights of the criminal but also the rights of the victim of crime
and the society at large while considering imposition of appropriate
punishment”.
According to the Hon’ble Court, The sordid episode of the security
guard sacred duty was to ensure the protection and welfare of the
inhabitants the flats in the apartment, should have subjected the deceased,
a resident of one of the flats, to gratify his lust and murder her in retaliation
for his transfer on her complaint, makes the crime even more heinous
Keeping in view the medical evidence and the state in which the body of the
deceased was found it is obvious that a most heinous type of barware rape
162
and murder was Committed on a helpless, and defenseless school going girl
of 18 years If the security guards behave in this manner who will guard the
guards. The faith of the society by such. Aharb Arica act of the guard gets
totally shaken and its cry for justice becomes loud and clear. The offence
was not only inhuman and barbaric but it was a totally ruthless crime of rape
followed by cold blooded murder and an affront to the human dignity of the
society. The savage nature of the crime has shocked our judicial conscience.
There are no extenuating or mitigating circumstances whatsoever in the
case. We agree that a real and abiding concern for the dignity of human life
is required to be kept in mind by the Courts while considering the
confirmation of the sentence of death but a cold blooded preplanned brutal
murder without any provocation after committing rape on and innocent and
defenseless young girl of 18 years by the security guard certainly makes this
case a “rarest of the rare” cases which calls for no punishment other that the
capital punishment and we accordingly confirm the sentence of death
imposed upon the appellant for the offence under Section 302 IPC. The
order of sentence imposed on the appellant by the courts below for offences
under Sections 376 and 380 IPC are also confirmed along with the directions
relating; thereto as in the event of the execution of the appellant those
sentences would only remain of academic interest. This appeal fails and is
hereby dismissed.
As a last ditch to save his life, the appellant filed a mercy appeal to
the Hon’ble President of India which was rejected by an order of the
163
President dated 4th August 2004. Thereafter, the brother of the appellant
filed a petition in the Supreme Court seeking stay of Dhananjoy execution of
death sentence. But the five judge Bench of the Apex Court refused to
review the President’s decision to reject appellant’s mercy petition
Consequently Dhananjoy death sentence was executed in Alipore Central
Jail in West Bengal on 14th August 2004 by hanging him till death.
Dhananjoy’s case is undoubtedly a trend setter in the history, of
capital punishment in India and clearly indicates that the principle laid down
in Bachchan Singh’s case i.e. rarest of rare case is best suited to the socio
milieu of the Indian society evey in the present 21st century.
According to the Apex Court the following cases would attract the
‘rarest of rare cases’ rule to justify imposition of death sentence.
1.
When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community;
2.
The murder is committed far a motive which evinces total depravity
and meanness;
3.
When murder is that of a member of Scheduled Caste or minority
community;
4.
When murder is in enormous proportion i.e., several persons are
murdered;
164
5.
When the victim of murder is an innocent child or a helpless woman
or an old or infirm person.
The Court ruled that Death penalty should be the only punishment to
be awarded in the aforesaid cases.
4.9 Delay in execution of Death Sentence
A survey of available case laws on death sentence would reveal that
the attention of the Supreme Court was focused on the question whether
inordinate delay, in the execution of death penalty can be, considered to
entitle the convict to claim commutation of the sentence to that of life
imprisonment. In Triveniben v. State of Gujarat,30 the five Judges Bench of
the Supreme Court overruled Vetheeswaran’s and Jawed Ahmed to the
extent they purported to lay down the two years delay rule, and held that no
fixed period of delay could be held to make the sentence of death in
executable. The Court, however, observed that it would consider such delay
as an important ground for commutation of the sentence.
In Madhu Mehta v. Union of India31 the Supreme Court held that a
delay of eight years in the disposal of mercy petition would be sufficient to
justify commutation of death sentence to life imprisonment since right to
speedy trial is implicate in article 21 of the constitution which operated
through all the stages of sentencing mercy petition to the president.
30
31
A.I.R.(1989) SC 1335
A.I.R.(1989) Cr.L.J.2321
165
In State of UP v. Ramesh Prasad Misra,32 the Supreme Court
reduced the death sentence of the accused to one of imprisonment for life in
view of long lapse of time from the date of commission of crime. The incident
had occurred on the intervening night of September 26/27, 1985 in Karwi
town of Banda district of U.P. The accused was a practicing advocate who
had committed horrendous bed – room murder of his 28 years old wife
whom he had married only 5 months ago. He was found guilty of offence
under Sections 300 and 498-A (i.e., dowry death) and his plea of alibi was
not established hence he was convicted on the basis of circumstantial
evidence and sentenced to death.
4.10 Constitutional Validity of Death Penalty
S.367(5) of the Criminal Procedure Code, 1898, prior to its
amendment in 1955, required a court sentencing a person convicted of an
offence punishment with death to a punishment other than death to state the
reasons why it was not awarding death sentence. The amendment deleted
this provision but there was so irdication in either the Cr.P.C. or the Indian
Penal Code, 1860 (I.P.C.) as to which cases called for life imprisonment and
which the alternative death penalty. The Law Commission of India in 1967
undertook a study of death penalty and submitted its 35 the Report to the
government. It justified its conclusion for retention of death penalty thus:
Having regard to the conditions in India, to the variety of social
upbringing of its inhabitants, to the disparity in the level of morality and
32
A.I.R.(1997)SC 2766
166
education in the country, to the vastness of its area, to the diversity of its
population and to the paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the experiment of abolition
of capital punishment.
Article 21 of Constitution Says no person shall be deprived unless by
procedure established by law- That utters Deprivation of life of any person is
sanctioned validated and approved by way of legality.
Imposing of death sentence is one thing that always gets more
attention to be discussed, including from the view of constitutional validity in
each countries. A serious discussion regarding to death sentence in
Indonesia, whether it should be continued or abolished, has come up before
the Court after some applicant applied a petition to Indonesian Constitutional
Court in order to challenge the constitutionality of death penalty in Drugs and
Narcotic Act against the provision of Rights to Life on Indonesian
Constitution, 1945. This article is the first chapter of several other chapters
with the topic of “death penalty” which will be flattened on the following days.
The provision of death penalty as an alternative punishment for
murder under302, IPC Was challenged as constitutionally invalid being
violate of Arts. 14, (2) 19(3) and 21Of the Constitution in a series of cases. It
was contended in Jagmohan Singh v. State of U.P. 33 That the constitutional
validity of death sentence has to be tested with reference to Arts. 14 and 19
33
A.I.R.1973(1)SCC20
167
besides Art. 21 of the Constitution as the right to life is fundamental to the
enjoyment of all these freedoms as contained in Art. 19 of the Constitution.
It was further contended that the Code of Criminal Procedure
prescribed the procedure of finding guilt of an accused but regarding the
sentence to be awarded under S. 302, I.P.C. the unguided and uncontrolled
discretion has been left to the Judge to decide the sentence to be awarded.
The Supreme Court held that the death sentence as an alternative
punishment under S.302, I.P.C. is not unreasonable and it is in the public
interest and the procedural safeguard provided to the accused under the
Code of Criminal Procedure is not unreasonable leaving the discretion with
the judge to sentence an accused, convicted for murder either to death or life
imprisonment Death sentence as an alternative punishment for life was held
valid.
Though the court did not accept the contention that the validity of the
sentence to death has to be tested in the light of Art. 14 and 10 of the
Constitution. But in Rajendra Prasad v. State of U.P. 34 the court accepted
the proposition that the validity of the death sentence can be tested with
reference to Arts. 14, 19 and 21 of the Constitution. The Supreme Court
suggested that in exceptional circumstances death sentence should be
imposed only when public interest, social defense and public order would
warrant.
34
Such
extreme
penalty
should
A.I.R.(1973)SC 947
168
be
imposed
in
extreme
circumstances. The court in Bachchan Singh v. State of Punjab 35 upheld that
constitutional validity of death sentence. The court reasoned that penal law
does not attract Art. 19(1) of the Constitution. If the impact of the law on any
of the-rights under Art. 19(1) is merely incidental, indirect, remote or
collateral, Art. 19 would not be available for testing its validity.
Accordingly, the court held that S.302 I.P.C. for its validity would not
require qualifying the test of Art. 19. The procedure provided in the Code of
Criminal Procedure for imposing capital punishment for murder cannot be
said to be unfair, unreasonable and unjust. But Justice Bhagwati in his
dissenting judgment held that S. 302, I.P.C. and S. 354 (3), Cr. P.C. violation
of Arts. 14 and 21 as these provisions confers unguided power on the court
which irrational and arbitrary. Thus, death sentence should be imposed in
the rarest of the rare case.
The Supreme Court in Machchi Sing v State of Punjab 36 laid down the
broad outlines of the circumstances when death sentence should be
imposed. It should be considered whether there is something uncommon
about the crime and the compelling circumstances for imposing death
sentence after giving maximum weight age of the mitigating circumstances
which is favour of the accused.
Jumman Khan was facing the gallows on being sentenced to death
for having brutally raped and strangulated to death a six year old girl named
Sakina.
35
36
The
convict
challenged
A.I.R.(1979) SC 917
A.I.R. (1980)SC 898
169
the
death
sentence
and
its
constitutionality.37
It was argued that death penalty is not only outmoded,
unreasonable, cruel and unusual punishment but also defies the dignity of
the individual and the issue needs reconsideration which stands like sentinel
over human misery, degradation and oppression. The Supreme Court while
endorsing its earlier view as to the constitutionality of death sentence held
that the failure to impose death sentence is such grave cases here it is a
crime against the society, particularly in case of murders with extreme
brutality will bring to naught the sentence of death penalty provided by s. 302
of I.P.C. The only punishment which the convict deserves for having
committed the reprehensible and gruesome murder of the innocent child to
satisfy his lust is nothing but death as a measure of social necessity and also
a means of deterring other potential offenders.
The Supreme Court in earlier case Bachchan Singh v. State Punjab 38
judge upheld the constitutional validity of imposition of death sentence as an
alternative to life imprisonment and it was further that it is not violate of Arts.
14 and 21 of the Constitution. Chief Justice Chandrachud expressing the
view of the three Judges of the Supreme Court in Sher Singh v State of
Punjab 39 held that death sentence is constitutionally valid and permissible
within the constraints of the rule in Bachchan Singh. This has to be accepted
as the law of the land. The decisions rendered by this court after full debate
has to be accepted without mental reservation until they are set aside.
37
Jumman Khan v. State of U.P. A.I.R( 1991) SC 345
A.I.R(1982) SC 1325: (1982) 3SCC 24
39
A.I.R.(1983) SC 465: (1983) 2SCC 344
38
170
The challenge touching the constitutionality of the death sentence
also surfaced in Triveniben v State of Gujarati 40 and in Allauddin’s case 41
and the Supreme Court asserted affirmatively that the Constitution does not
prohibit the death penalty.
It is in the rare cases, the legislature in its wisdom, considered it
necessary impose the extreme punishment of death to deter others and to
protect the society. The choice of sentence is left with the rider that the judge
may visit the convict with extreme punishment provided there exist special
reasons for doing so. The provision of Art. 302, I.P.C. is consistent with the
Constitutional Provision of Art. 21 which enjoins that personal liberty or life of
an individual shall not be taken except according to the procedure
established by law. Whether death penalty violates Art. 14,19, and 21 of the
Constitution came up for consideration before the Supreme Court in
Bachchan Singh v. State of Punjab 42 and the court answered the contention
in the negative.
In the face of the statutory provision in cl.(3) of s. 354 of the Cr. PC
requiring giving of special reason while imposing death penalty which is
consistent with Art. 21 of the Constitution which enjoins that the personal
liberty or life of an individual shall not be taken except according to the
procedure established by law, the extreme plea of death in no case cannot
be countenanced and death penalty cannot be said to be violate of Art. 21 of
40
A.I.R.(1989) SC 1335: (1989) 1 SCC 678
A.I.R.(1989) SC 1456
42
A.I.R. (1980) SC 898: (1980) 2 SCC 684
41
171
the Constitution. Section 302, IPC casts a heavy duty on the court to choose
between death sentence and imprisonment for life and court must show high
degree of concern and sensitiveness in the choice of sentence. It was held
in Allauddin Mian v. State of Bihar43 that special reason in s. 354, Cr. PC
should be sufficient safe guard against arbitrary imposition of extreme
penalty. Where a sentence of severity is imposed, it is imperative that the
Judge should indicate the basis upon which he considered the sentence of
that magnitude justified.
That is all about the constitutionality aspects of death penalty
according to the interpretation of Supreme Court on Indian Constitution; the
decisions of Indian Supreme Court that I have discussed above, however,
couldn’t be throughout adopted in Indonesia. But, some of its reasoning can
be considered as guidance for any Indonesian stakeholders.
4.11 Criminal procedure code. S. 367
In extensive outlook it is important to knob History of death Penalty in
context of amendments of various Laws regarding death penalty. Let us
consider history of criminal procedure code. S.367 (5) of the Criminal
Procedure Code, 1898, prior to its amendment in 1955, required a court
sentencing a person convicted of an offence punishable with death to a
punishment other than death to state the reasons why it was not awarding
death sentence. The amendment deleted this provision but there was no
indication in either the Cr.P.C or the Indian Penal Code, 1860 (I.P.C.) as to
43
A.I.R.(1989)SC 1457
172
which cases called for life imprisonment and which the alternative - death
penalty.
4.12 Law Commission Report
The Law Commission of India in 1967 undertook a study of death
penalty and submitted its 35th Report to the government it Justified its
conclusion for retention of death penalty thus having regard to the conditions
in India, to the variety of social upbringing of its inhabitants, to the disparity in
the level of morality and education in the country, to the vastness of its area,
to the diversity of its population and to the paramount need for maintaining
law and order in the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment..
187th Report of Law Commission of India on Mode of Execution of
death Sentence and Incidental Matters In October, 2003 speaks about
different scientific mode of executions & yet it does not speak about
complete abolition of Death penalty in India.
4.13 Constitutionality in different cases
1. Constitutionality in
Jagmohan Singh v. The State of Uttar
Pradesh
In landmark case Jagmohan Singh v. The State of Uttar Pradesh44, a
Five-judge Constitutional Bench of the Supreme Court rejected a challenge
to the constitutionality of the death penalty- The Court differentiated the
44
A.I.R. 1973 S.C. 947
173
Indian circumstances from that of the United States (where the death penalty
had been beat down as brutal and inhuman in Furman v. Georgia45 and
warned against uprooting the western experience. In the want of sociological
data from India on deterrence, the Supreme Court depended on the 35th
Report of the Law Commission of India (1967) as authoritative. Depending
on the Law Commission’s conclusion that “India cannot risk the experiment
of abolition of capital punishment,” Further settling on, “it will be difficult to
hold that capital punishment as such is unreasonable or not required in the
public interest,” The Court then referred to the various disastrous legislative
endeavors at abolition and argued, “If the legislature decide to retain capital
punishment for murder, it will be difficult for this Court in the absence of
objective evidence regarding its unreasonableness to question the wisdom
and propriety of the Legislature in retaining it. Also representatives of the
people do not welcome the prospect of abolishing capital punishment” The
court did not support the argument that the death penalty is either
unreasonable or not in the public interest. The abolitionists had also claimed
that the unclear discretion in the law on capital sentencing brought about by
the 1955 Amendment Cr.P.C. amounted to extreme discretion and made the
punishment arbitrary and violative of Article 14 of the Constitution as two
people claim to be guilty of the same offence could suffer different fates.
The Court noted that in India in fact, the situation was already better
than the output of the Royal Commission of United Kingdom and the public
45
33 L Ed 2d 346
174
had accepted that only the judges should decide on sentence. The Court
also quoted from a listed text with respect to the aggravating and mitigating
circumstances judges could consider when sentencing an offender. The
Court thus concluded, “The impossibility of laying down standards is at the
very core of the criminal law as administered in India which invests the
judges with a very wide discretion in the matter of fixing the degree of
punishment. The discretion in the matter of sentence is, as already pointed
out, liable to be corrected by superior courts... The exercise of judicial
discretion on well- recognized principles is, in the final analysis, the safest
possible safeguard for the accused.” The Court also discharge the plea of
discrimination, arguing that such a claim could not be made as the facts and
circumstances in each case were themselves different and a judgment in
one case could not be compared with another. The Court also summarily
dismissed the argument that the lack of sentencing modus operandi in
awarding death sentences fell foul of Article 21 of the Indian Constitution as
the deprivation of the right to life was only possible as per the procedure
established by law. The Court noted that the accused was well aware of the
possibility of the sentence during trial and also had an opportunity to address
the Court as also examine himself as a witness and give evidence on
material facts. In fact soon after this judgment, new Code of Criminal
Procedure, 1973, was introduced this was challenging to the constitutionality
of the death penalty. Even though the Supreme Court in Jagmohan Singh
upheld the constitutionality of the death penalty and asserted that the
175
exercise of judicial discretion on well-recognised principles was the safest
possible safeguard for the accused, a glance at the cases that immediately
followed this judgment reveals that the Constitutional Bench was away with
respect to its own fellow judges. The judgment in Jagmohan Singh was
delivered on 3rd October 1972, in four other capital cases where the Court
delivered judgments, different benches of the Supreme Court did not discuss
the issue of sentencing at all.
Criminal Procedure Code 1973
Section 235. Judgment of acquittal or conviction.
(1)
After hearing arguments and points of law (if any), the Judge shall
give a judgment in the case,
(2)
If the accused is convicted, the Judge shall, unless he proceeds in
accordance with the provisions of section 360 hear the accused on
the question of sentence, and then pass sentence on him according
to law. 248 acquittal or conviction.
(i)
If, in any case under this Chapter in which a charge has been framed,
the magistrate finds the accused not guilty, he shall record an order of
acquittal.
(ii)
Where, in any case under this Chapter, the magistrate find the
accused guilty, but does not proceed in accordance with the
provisions of section 325 or section 360, he shall, after hearing the
176
accused on the question of sentence, pass sentence upon him
according to law.
(iii)
Where in any case under this Chapter, a previous conviction is
charged under the provisions of sub-section (7) of section 211 and the
accused does not admit that he has been previously convicted as
alleged in the charge, The magistrate may, after he has convicted the
said accused, take evidence in respect of the alleged previous
conviction- said shall record a finding thereon; Provided that no such
charge shall be read out by the’ Magistrate nor shall the accused be
asked to plead thereto nor shall the previous conviction be referred to
by the prosecution or in any evidence adduced by it, unless and until
the accused has been convicted under sub-section (2)
In any scientific system which turns the focus, at the sentencing
stage, not only on the crime but also the criminal, and seeks to personalize
the punishment so that the reformatory component is as ,much operative as
the deterrent clement, it is essential that facts of a social and personal
nature, sometimes altogether irrelevant if not injurious at the stage of fixing
the guilt, may have to be brought to the notice of the Court when the actual
sentence is determined.46
If the extinguishments of life through a judicial sentence could be
brought about by the combination of a substantive and a procedural penal
law, the first attack of the abolitionist had to be upon the validity of such a
46
http:// www.ebcindia.com/practicallawyer/index.php?option=com_content&task =view
177
law. A Constitution Bench of the Supreme Court repelled the initial challenge
to the constitutionality of death penalty as a form of punishment in Jagmohan
Singh v. State of U.P. On behalf those facing the death penalty it was
contended that death sentence extinguishes all the freedoms guaranteed
under article 19 (1) (a) to (g) and was accordingly unreasonable and not in
public interest. Secondly, the discretion vested in judges to award either of
the two punishments was not based on any legislative policy or standard or
constituted an abdication by the legislature of its essential function attracting
the vice of excessive delegation. Thirdly, the unguided sentencing discretion
in judges rendered it violative of article 14 since two persons found guilty of
murder could be treated differently on sentenced to life the other to death.
Fourthly, there was no procedure provided in the Cr. P.C. for determining
which of the two punishments were to be awarded. The absence of a
procedure established by law under which life could be extinguished resulted
in a violation of article 21.
The five judges refused to persuade by the decision of the U.S.
Supreme Court in Furman v. Georgia declaring death penalty to be in
violation of the Eight Amendment, which forbade cruel and unusual
punishment. Expressing doubts about transplanting western experience the
court felt that “social conditions are different and so also the general
intellectual level. In coming to the conclusion that capital punishment was
neither unreasonable nor opposed to public interest, the court drew support
from the 35th Report of the Law Commission and the fact that on four
178
occasions between 1956 and 1962 bills or resolutions tabled in Parliament
for abolition of death penalty had been rejected. Negativiting the argument of
excessive delegation the court opined: “The impossibility of laying down
standard is at the very core of the criminal law as administered in India
which invests the judges with a very wide discretion in the matter of fixing the
degree of punishment. The discretion is liable to be corrected by superior
courts.” As regards the procedure, the accused could always ask to lead
additional evidence and counsel could address the court on the question of
sentence. It was held that deprivation of life was constitutionally permissible
as it was imposed after a trial in accordance with procedure established by
law.
2. Constitutionality in Bachchan Singh v. State of Punjab 47
Three developments subsequent to the judgment in Jagmohan
prompted a renewed challenge in Bachchan Singh v. State of Punjab to the
constitutional validity of the death penalty. The Cr. P.C. was reenacted in
1973 and section 354 (3) required that the judgment recording conviction for
an offence punishment with death shall state special reasons for such
sentence. Thus death sentence became the exception and not the rule as
far as punishment for murder was concerned.
Secondly, the decision in Maneka Gandhi v. Union of India 48 required
that every law of punitive detention both in its procedural and substantial
aspects must past test of reasonableness on a collective reading of articles
47
48
A.I.R.(1980) SC 898
A.I.R. 1978(2) SCR 621
179
21, 19 and 14. Based on this interpretation, the Supreme Court had in
Rajendra Prasad v. State U.P. held that the special reasons necessary for
imposing the death penalty must relate not to the crime but the criminal. It
could be awarded only if the security of the state and society, public order
and the interests of the general public compelled that course. When Bachan
Singh’s appeal came up for hearing in the Supreme Court before a bench of
Sarkaria and Kailasam, JJ., the latter observed that the judgment of the
majority in Rajendra Prasad ran counter to the judgment in Jagmohan and
hence required reconsideration.
The third development was that India had acceded to the ICCPR that
came into force on December 16, 1976. By ratifying the treaty, India had
committed itself to the progressive abolition of death penalty.
In support of the first limb of the challenge, to the validity of s. 302
I.P.C., it was argued for the abolitionists in Bachan Singh that:
a.
Death penalty was irreversible and could be given the fallibility of the
processes of law, inflicted upon innocent persons;
b.
There was no convincing evidence that the death penalty served any
penological purpose. Its deterrence remained unproved; retribution
was no longer an acceptable end of punishment and reformation of
the criminal and the rehabilitation was the primary purpose of
punishment;
c.
Execution by whatever means for whatever the offence was a cruel,
inhuman and degrading punishment.
180
The majority of four judges in Bachchan Singh case negativities the
challenge to the constitutionality of death penalty, affirmed the decision in
Jagmohan and overruled Rajendra Prasad in so far as it sought to restrict
the imposition of death penalty only to cases where the security of the state
and society, public order and the interests of the general public were
threatened.
The Court continued to draw support from the Law Commission’s 35th
Report. The fact that there was, among rational persons, a deep division of
opinion on this issue, was itself, according to the court, a ground for rejecting
the argument that retention of the penalty was totally devoid of reason and
purpose. The perceived majoritarian view supporting retention meant that
death penalty as an alternative punishment was neither unreasonable nor
lacking in public interest.
The court rejected the second limb of the challenge to the validity of
section 354 (3) of Cr.P.C. on the ground that it permitted imposition of death
penalty in an arbitrary and whimsical manner. It explained that the
requirement under section 235 (2) for a persistence hearing of the accused
coupled with the requirement that the sentence of death had to be confirmed
by the High Court under section 366 (2) of the Cr.P.C. meant that errors in
the exercise of the judicial discretion could be corrected by the superior
courts.
Although the court was not inclined to lay down standards or norms
for guiding the exercise of judicial discretion, it accepted the suggestions of
181
the amicus curiae as to what could generally constitute aggravating and
mitigation circumstances.
The court recorded the following possible aggravating circumstances
suggested by the amicus curiae:
a.
Murder committed after previous planning and involves extreme
brutality; or
b.
Murder involving exceptional depravity; or
c.
Murder of a member of any of the armed forces or of any police force
of any public servant and committed:
i) While such member of public servant was on duty; or
ii) In consequence of anything done or attempted to be done by such
member or public servant in the lawful discharge of his duty.
Among the mitigating factors suggested by the amicus curiae were:
1.
An offence committed under the influence of extreme mental or
emotional disturbance.
2.
The age of the accused. If the accused was young or old, he was not
to be sentenced to death.
3.
The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
4.
The probability that the accused could be reformed and rehabilitated.
The state was to prove by evidence that the accused did not satisfy
the conditions (3) and (4) above.
182
5.
The accused believed that he was morally justified in committing the
offence.
6.
The accused acted under the duress or domination or another person.
7.
The accused was mentally defective and that the said defect impaired
his capacity to appreciate the criminality of his conduct.
The Court termed these euphemistically as indicators and relevant
circumstances attitude required to be accepted. It, however, indicated that
these were not exhaustive and that the court did not want to be seen as
fettering judicial discretion in the matter of sentencing.
The concluding remarks in the majority opinion marked the real shift
in the judicial attitude towards sentencing. It also reflected the changing
perceptions of the judiciary influenced as it was by major strides in human
rights jurisprudence. The majority said; “A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed”.
In Machchi Singh v. State of Punjab 49 the court summarized the
propositions emanating from Bachchan Singh and spelt out the task for the
sentencing judge. It said:
A balance -sheet of aggravating and mitigating circumstances has to
be drawn up and in doing so the mitigating circumstances have to be
49
A.I.R. (1983) 3SCC 470
183
accorded full weight age and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is exercised.
The court then explained how it envisaged the guidelines would apply.
The questions that the sentencing court had to ask were:
a.
Is there something uncommon about the crime, which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
b.
Are the circumstance of the crime such that there is no alternative but
to impose death sentence even after according maximum weight are
to the mitigating circumstances, which speak in favour of the offender
?
Thus both in Jagmohan and Bachan Singh, the court bowed to
legislative wisdom and shrank away from striking down the death penalty.
But the similarity in the two decisions ended there. The change brought
about by Bachchan Singh, as explained by Machchi Singh, was significant.
There was an affirmation that death penalty was the exception and not the
rule. The formulation of the rarest of rare test, credited craftily by the court,
still shy of being accused of legislating, to the amicus curiae that assisted it,
acknowledgment of reformation and rehabilitation of the delinquent as one
goal of punishment. It cannot be gainsaid that the rate of imposition of death
penalty would definitely have been higher but for Bachchan Singh. In
retrospect, Bachchan Singh was neither a small nor insignificant
achievement for the abolitionists.
184
Bachchan Singh also showed abolitionists that the challenge to the
constitutionality of the death penalty was not a one time exercise and had to
be revived at regular intervals. Perhaps taking a cue, the challenge was
renewed, albeit unsuccessfully, in Shashi Nayar v. Union of India.50 The
petitioner requested reconsideration of Jagmohan and Bachchan Singh on
the ground that both those decisions were based on the 1967 report of the
Law Commission which did not reflect current reality. However, the court
was unmoved. It looks “judicial notice of the fact that the law and order
situation in the country has not only no improved since 1967 but has
deteriorated over the years and is fast worsening today”. IT was firm that
“the present is, therefore, the most inopportune time to reconsider the law on
the subject”. It perhaps this continuing perception of a real link between
rising crime rate the severity of the punishment, the former justifying the
latter, that is the real stumbling block in the re-examination of the necessity
for retention.
With amendments to the Cr.P.C. indicating legislative backing for the
death sentence becoming an exceptional punishment, followed by India’s
accession to the International Covenant on Civil and Political Rights m 1976.
The stage was set for a renewed .challenge to the constitutionality of the
death penalty for murder. Three main grounds were raised in the challenge
by the abolitionists:
50
A.I.R.(1983)1 SCC 96
185
1)
The irreversibility of the sentence and the execution of innocent
persons.
2)
The lack of penological purpose - deterrence was not proven,
retribution was no longer an acceptable end and the primary purpose
of punishment - reformation -was nullified by the sentence.
3)
Execution by ail modes was a cruel, inhuman and degrading
punishment.
By a majority (4:1), the Supreme Court upheld the constitutionality of
the death penalty (Justice Bhagwati’s detailed dissenting opinion was written
and reported two years later in Bachchan Singh v. State of Punjab (Minority
Judgment) 51 As in Jagmohan Singh v. The State of Uttar Pradesh, in this
case too the Supreme Court relied heavily on the 35th Report of the Law
Commission published in 1967 and the argument that the death penalty
acted as a deterrent and served a penological purpose. The absence of any
clinching evidence on lack of deterrence allowed the Court ion conclude: “It
is sufficient to say that the very fact that persons of reason, learning and light
arc rationally and deeply divided in their opinion on this issue is a ground
among others, for rejecting the petitioner’s argument that retention of death
penalty in the impugned provision, is totally avoid of reason and purpose.”
Further the Court concluded that execution by hanging could not be seen to
be unreasonable, cruel or unusual punishment. On the dangers of
irreversibility and innocence, the Court noted that there were ample
51
A.I.R. (1982)SC1325
186
safeguards, “which almost did almost eliminate the chances of an innocent
person being convicted and executed for a capital offence.” These
safeguards included the mandatory pre-sentencing hearing introduced by
Section 235(2) Cr.P.C. as also the requirement for ‘special reasons’ in
Section 354(3) Cr.P.C. along with mandatory confirmation of the sentence by
the High Court. The court however rejected the reading of ‘special reasons’
set out in Rajendra Prasad v. State of Uttar Pradesh, observing that although
the legislative policy required courts not to confine their consideration of
sentence “principally” or merely to the circumstances connected with the
particular crime but also give due consideration to the circumstances of the
criminal, this could not be taken to mean aspects of the ‘crime could he
completely ignored in sentencing. The Constitutional Bench also rejected the
argument that Section 354(3) Cr.P.C. allowed imposition of the death
sentence in an arbitrary and whimsical manner, and it rejected the notion of
laying down standards or norms, arguing that such “standardization is wellnigh impossible.” The Court instead suggested that such a task was better
done by the legislature, “In this sensitive, highly controversial area of death
penalty, with all its complexity, vast implications and manifold ramifications,
even all the judges cloistered in this Court and acting unanimously, cannot
assume the role which properly belongs to the chosen representatives of the
people in Parliament.” Instead the Supreme Court referred to some
illustrative ‘aggravating circumstances’ and ‘mitigating circumstances’ as
187
suggested by the Amicus Curiae and suggested that these could be
indicators and relevant circumstances in determining sentence.
a) “Aggravating Circumstances – A court may however in the following
cases impose the penalty of death in its discretion
(a)
If the murder has been committed after previous planning find
involves extreme brutality; or
(b)
If the murder involves exceptional depravity; or
(c)
If the murder is of a member of any of the armed forces of the Union
or of a member of any police force or of any public servant and was
committed:
(i)
While such member or public servant was on duty; or
(ii)
In consequence of anything done or attempted to be done by
such member or public servant in the lawful discharge of his
duty as such member or public servant whether at the time of
murder he was such member or public servant, as the case
may be, or had ceased to be such member or public servant;
or
(d)
If the murder is of a person who had acted in the lawful discharge of
his duty Under Section 43 of the Code of Criminal Procedure 1973 or
who had rendered assistance to a Magistrate or a police officer
demanding his aid or requiring his assistance under Section 37 and
Section 129 of the said Code.
188
b) Mitigating circumstances - In the exercise of its discretion in the
above Cases, the Court shall take into account the following
circumstances:
(1)
That the offence was committed under the influence of extreme
mental or emotional disturbance.
(2)
The age of the accused. If the accused is young or old, he shall not
be sentenced to death.
(3)
The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4)
The
probability
that
the accused can
be
reformed
and
rehabilitated. The State shall by evidence prove that the accused
does not Satisfy the conditions 3 and 4 above.
(5)
That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.
(6)
That the accused acted under the duress or domination of another
person.
(7)
That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to appreciate
189
the criminality of his conduct. The Supreme Court also clarified that
the mitigating circumstances should receive a “liberal and expansive
construction” with scrupulous care and humane concern and “judges
should never be blood-thirsty.” In such a vein, the Court concluded: “A
real and abiding concern for the dignity of human life postulates
resistance to taking a life through law’s instrumentality. That ought not
to be done save in the rarest of rare cases when the alternative option
is unquestionably foreclosed.
3. Constitutionality in Smt. Shashi Nayar. Vs. Union of India and others
After a gap of over a decade (since Bachan Singh in 1980) the
question of constitutionality of the death penalty received a hearing by a
Constitutional Bench in Smt. Shashi Nayar v. Union of India and ors,52 The
petition was filed by the wife of the accused as a last resort two days before
the date of hanging, following dismissal of the Special Leave Petition and
Review Petition by the Supreme Court and rejection of mercy petitions by
the Governor and President. In fact previous writs had been Hide but
rejected by the High Court and the Supreme Court. However, since none of
these judgments were reported there is little known about the merits of the
case. The Constitutional Bench did not go into The merits of the argument
against constitutionality, as they noted that the same grounds had been
dealt with in Bachchan Singh and Deena v. State of U.P.53 and since they
fully agreed with the position taken, it was not necessary to reiterate the
52
53
A.I.R.(1992)SC 395
A.I.R.(1978) 3SCC 540
190
same. The petitioner sought that the matter be heard by a larger bench than
Bachchan Singh, on the basis that decision was based largely on the Law
Commission’s 35th Report which was now very old and in the absence of on
empirical. In this case too, it was largely the effort of voluntary groups led by
the People’s Union for Civil Liberties Tamil Nadu, that ensured that relevant
facts relating to the rehabilitation of the accused were made available to the
executive during the campaign for the sentence to be commuted. This
sentence was also commuted by the executive. Study to show that the
circumstances of 1965 were still relevant. The Supreme Court however
found no merit in these claims, asserting: “The death penalty has a deterrent
effect and it does serve a social purpose. The majority opinion in Bachchan
Singh’s case held that having regard to the social conditions in our country
the stage was not ripe for taking a risk of abolishing it. No material has been
placed before us to show that the view taken in Bachchan Singh’s case
requires reconsideration.” Further the Court also took judicial notice of the
fact that the law and order situation in the country had not improved
sinc1977, had deteriorated and was worsening. The Court therefore
concluded that it was the most inopportune time to reconsider the
constitutionality of the death penalty.
The constitutional makers had recognized the death sentence as a
permissible punishment and had made constitutional provisions for appeal,
reprieved and the like. But more important than these provisions in the
constitution is article 21, which provides that no person shall be deprived of
191
his life except according to procedure established by law this implication is
very clear. Deprivation of life is constitutionally permissible if that is done
according to procedure established by law. In the face of these indications of
constitutional postulates. It will be very difficult to hold that capital sentence
was regarded per se as unreasonable or not in the public interest.
The subject of capital punishment is a difficult and controversial
subject long and hotly debated. It has evolved strong views in that state of
affairs if the legislature decides to retain capital punishment for murder it will
be difficult at this time in the absence of objective evidence regarding its
unreasonableness to questioned the wisdom and priority of the legislature in
retaining it.
The death sentence imposed after the trial in accordance with
procedure established by law is not unconstitutional under article 21 to the
constitution of India, Jag Mohan v. State of U.P. 54
Before dealing with contentions, it will be useful to have a short
survey of the legislative history of the provisions of the penal code which
permits the imposition of the death penalty for certain offences. The Indian
Penal Code was drafted by the first Indian law commission presided over by
Lord McCauley, The draft under went further revision at the hands of well
known jurist, live sir Barnes Peacock and was completed in 1860. The Indian
th
penal code was passed by the then legislature on October 6
enacted as Act no. 45 of 1860.
54
A.I.R. (1973) SC 947
192
1860 and was
Section 53 of the Indian penal code enumerates punishment to which
offenders are liable under the provisions of this code u/s 53 IPC Clause first
of the section mentions ‘death’ as one of the punishment. Regarding death
as a punishment the authors of the code say, “We are convinced that it
ought to be very sparingly inflicted, and we proposed so employ it only in
cases where either murder or the highest offences against the state has
been committed.” Accordingly under the code, death is the punishment that
must be awarded for murder by a person under sentence of imprisonment
for life (303), This apart the penal code prescribes “death” as an alternative
punishment to which (he offenders may be sentenced for the following seven
offences:
1.
Treason, e.g. waging war against the government of India
(Section121)
2.
Abatement of mutiny (Section 132)
3.
Perjury resulting in conviction and death of an innocent person
(Section194)
4.
Murder (Section 302)
5.
Abetment of suicide by child or insane person (Section 305)
6.
Attempted murder by life convicts (Section 307 and 303)
7.
Abatement of suicide of a minor or insane person (Section 306)
8.
Dacoity with murder (Section 396)
193
The question of constitutional validity of death sentence has been
raised before the Supreme Court several times viz-a-viz article 14, 19 and
21. Article 19 deals with the several freedoms but not directly with the
freedom to live. It was argued in Jug Mohan’s case that the right to live is a
basic to the enjoyment of all these freedoms and therefore, freedom t0 live
could not be denied by a law unless it is reasonable and in public interest.
The law commission in its 35th report has also favored retaining the death
sentence in India and therefore, it is difficult to say that the capital sentence
as such as unreasonable or not in public interest. Adequate procedural safe
guards have been provided to the accused under the Code of Criminal
Procedure.
Further, the constitutional validity of awarding a death is limited in .Cr.
P. C. no procedure laid down for the trial of the factors and the
circumstances crucial for making the choice by the judges between awarding
death or life. It is not unreasonable to leave discretion with the judges to
sentence an accused convicted for murder either death or life. It is also not
invalid under article 14 the judge balancing the number of aggravating and
mitigating circumstances of the case and record his reasons in writing for
awarding the sentence and their judicial discretion can be corrected by the
superior court.
It is wrong to contend that uncontrolled and unguided discretion in the
judges who imposed capital punishment or life was hit by article 14 of the
constitution, because if the law has given to the judges a wide discretion in
194
the matter of sentence to be exercised by him after balancing all the
aggravating and mitigating circumstances of the crime. It will be impossible
to say that there would be at all any discrimination. Since facts and
circumstances of one case can hardly be the same as the facts and
circumstances of another and therefore Article 14 cannot be invoked in
matter of judicial discretion.
Death sentence should be imposed only if otherwise public interest,
social defense and public order would be smashed irritatbly. “Special
reasons” necessary for imposing death penalty must relate not to the crime,
as such, but to the criminal. The crime may be shocking and yet the criminal
may not deserved death penalty. The extreme penalty can be invoked only
in extreme situation.
The provision of death penalty as an alternative punishment of murder
is also not violation of article 21. This article clearly brings out the
implications that the founding fathers recognized the right of the state to
deprive a person of his life or personal liberty in accordance with fare just
and reasonable procedure established by valid law. The procedure provided
in CR.P.C. for imposing capital punishment for murder cannot be said to be
unfair, unreasonable and unjust. The court, however emphasized the death
penalty is an exception rather than the rule ought to be imposed only in the
‘gravest case of extreme culpability’, or in the ‘rarest of rare cases’ when the
alternative option is unquestionably foreclosed.
195
Further the Supreme Court has formulated broad guidelines for
determining “ rarest of the rare case” in which murderer should be awarded
the penalty instead of life, the judges must ask themselves two question for
deciding whether a murder falls in the category of ‘rarest of the rare cases
1.
Whether there is something uncommon about the crime, which
renders a life imprisonment sentence inadequate and calls for a death
sentence?
2.
Whether the circumstances of the crime arc such that there is no
alternative but to impose the death sentence even after according maximum
weight age to the mitigating circumstances, which speaks in favor of the
offender?
Article 21 is that no person shall be deprived of his life or personal
liberty except according to procedure established by law.If this article is
expanded in accordance with the interpretative principle indicated in the
Maneka Gandhi’s case55 it will be read as follows:
No person shall be deprived of his life or personal liberty except
according to fare, just and reasonable procedure established under valid
law.
Thus expanded and read for interpretative purposes article 21 clearly
brings out the implications that the founding father recognized the right of the
state to deprived a person of his life for personal liberty in accordance with
fare, just and reasonable procedure established by valid law, There are
55
Maneka Gandhi v. Union of India, A.I.R.(1978)SC 578
196
several other indications also in the constitution which shows that the
constitution makers were fully cognizant of the existence of death penalty for
murder and certain other offences in the I.P.C. entries 1st and 2nd in list III
concurrent list of the seventh schedule, specifically referred to the I.P.C. and
Cr.P.C. as in forced at the commencement of the constitution. Article 72 (1)
(c) specifically invests the president with power to suspend remit or commute
the sentence of any person convicted of any offence and also in all cases
where the sentence is a death sentence. Likewise, under article 161, The
Governor of a state has been given power to suspend, remit or commute,
inter-alia, the sentence of death of any person Convicted of murder or other
capital offences relating to a matter to which the executive power of the stale
extends. Article 134 in terms, gives a right of appeal to the Supreme Court to
a person who On appeal, is sentenced to death by the high court, after
reversal of his acquittal by the trial court. Under the successive Cr.P.C,
Which has been enforced for about hundred years, a sentence of death is to
be carried out by hanging. In view of the aforesaid constitutional postulates
by no stretch of imagination can it be said that death penalty under section
302, penal code, either parse or because of its execution by hanging,
constitutes an unreasonable, cruel or unusual punishment or by reasons of
the same constitutional postulates. It cannot be said that the trainers of the
constitution considered death sentence for murder or the prescribed
traditional mode of its execution as a regarding punishment, which would
defile the dignity of the individual within the contemplation of the preamble
197
with the constitution. On parity of reasons, it cannot be said that the death
penalty for the offence of murder violates the basic structure of the
constitution.
“Remember, death penalty is also murder”
The judiciary has more often than not, used section 354 (3) of the
code of the criminal procedure to justify its stand either in support of or
against capital punishment. The abolitionists see this provision a green
signal for dilution of capital punishment while for the retentionist has special
reasons contemplated by section.354(3)implicitly suggest that the death
sentence is legally and constitutionally permissible.
The pros and cons of ‘’Life Or death” sentence have been expensively
dealt with by the supreme court of India in Rajendra Prasad versus state of
U.P. 56
Therefore it would be pertinent to state the fact of the case to
analyze the entire issued in its proper perspective. The accused in the
instant case was a desperate character. Who had undergone sentence of
imprisonment for life and was released on Ganpati Festival day in 1972. The
accused incidentally attacked one Ram Bharose and dealt several blows on
vital parts of his body with knife. Ram Bharose released himself from the grip
and ran inside his house. The accused chased him all the way with bloodstained knife and knocked the door asking him to open it. Meanwhile the
deceased Mansukh came and tried to entreat the accused not to assault
56
A.I.R.(1979)SC 976
198
Ram Bharose. There upon accused struck deceased Mansukh and thus
deceased was done to death.
The Supreme Court by majority of 2:1 and speaking through J.
Krishna Iyer, attributed failure of penal institutions to cure criminality Within
the criminal as the sole cause of this cruel murder and allowed Commutation
of death sentence that of life imprisonment. The Court observed “This was
not a menace to the social order but a specific family feud and whose
paranoid pre-occupation with family quarrel.”
Reacting sharply to the majority view J. A. P.Singh answered the
experiment of reformation has miserably failed. If death is committed the
accused will commit a few more murders and he would again become a
menace to the society,”
In a way Rajendra Prasad’s case provided an appropriate opportunity
for the Supreme Court to express its views on the need for dilution of death
penalty in die context of Indian society.”
Mr.J.Krishna Iyer tried to derive at the point that reasons referred to
under section 354 (3) of Code of Criminal Procedure must be liberally
construed so as to limit death penalty to rare category of cases such as
white collar crimes, anti-social offences like hijacking or selling of spurious
liquor etc, and hardened murderers. In India by and large murders are not by
calculated professionally cold-blooded planning but something
happens
on
the
spur
of moment
passion, family feud and altercation, etc...
199
due
lo
that
sudden provocation,
A year later the Supreme Court was once again called for to the
controversy over choice between death penalty and imprisonment for life
before larger bench of four judged overruling its earlier decision in Bachchan
Singh V/s State of Punjab, 57 the court by majority of 4:1 expressed a view
that death sentence as an alternative for murder it not unreasonable and
hence not violation of Art.4, 19 and 21 of Constitution of India. The
observed, “the question whether or not death penalty served any penological
purpose is a difficult, complex and intricate issue. It has evoked strong
divergent views notwithstanding the view of abolitionist to the contrary, a
very large segment of people, the world over including sociologist, jurists,
judges and administrators still strongly believe in the worth and necessity of
capital Punishment for the protection of society.
The abolitionist contention that vengeance which is no longer an
acceptable end of punishment that it is contrary to the reformation of criminal
and his rehabilitation, and finally that it is inhuman and degrading. The
Supreme Court ruled that though life imprisonment is the rule, death
sentence must retain as an exception and to be used sparingly.
In Machchi singh V/s State of Punjab 58, the accused killed two
innocent and helpless women heinously and barbaric. Their lordship of
Supreme Court opined that the rarest of the rare case rule prescribed in
Bachchan Singh’s case was clearly attracted in this case and sentence of
death justified.
57
58
A.I.R.(1980)SC 898: 1980 Cr.L.J.636
A.I.R.(1983)SC956
200
In Kuljeet Sing’s alias Ranga V/s Union of India59, the two accused
Ranga. And Billa committed gruesome murder of two teenage children in
professional manner. The Supreme Court observed the murder was
preplanned, cold-blooded and committed in most brutal manner and there
were no extenuating circumstances warranting mitigating of sentenceSupreme Court in its decision in T.V. Vatfieeswami V/s State of
Tamilnadu 60, once again ruled that prolonged delay in execution exceeding
two years would be a sufficient ground to quash death sentence.
But soon after in Sher Singh V/s State of Punjab 61, Supreme Court
overruled its earlier decision, Chief Justice Y.V. Chandrachud observed,
death penalty should only be imposed in rare and exceptional cases, but in
death sentence held by Supreme Court should not be allowed to be
defeated applying any rule of thumb, there is no any hard and fast rule can
be laid down as far as the question of delay was concerned. If a person were
allowed to resort to frivolous proceedings in order To delay the execution of
death sentence, the law laid down on death sentence would become an
object of ridicule.
In Mohammad Chaman V/s State of Delhi 62,the accused had
committed rape on a minor girl Ritu aged one and half year, when her
parent’s two sisters were away from home, as a result of this brutal and
ghastly act the child suffered severe injuries and died. The trial court
59
A.I.R.(1981)SCC756
A.I.R.(1983)SCC659
61
A.I.R.(1983)SCC1232
62
A.I.R.(2001)SC690
60
201
sentenced him to death which was confirmed by the High Court, but
Supreme Court taking guidelines laid down in Bachchan Singh’s case the
case is one which deserves humanist approach and therefore capital
sentence imposed against appellant is commuted to life.
The Judicial trend in India reveals that it has always upheld the right
of the state to kill a wrong doer. It may, however, not be denied that the
judiciary has always weighed the contents of philosophy of life, as enshrined
in our National Charter, heavily before punishing a wrong doer to death. As
capital punishment extinguishes life, it is deprivation of life par excellence;
attempts have been made from time to time to attack the imposition of
capital punishment on the anvil of Article 21. The judiciary has shown a
gesture of liberalism in awarding death penalty in the right of sprit contained
in Article 21 read with Articles 14 and 19 The doctrine of fair, just and
reasonable
procedure has been evolved by the apex Court for the
deprivation of life and personal liberty. The Supreme Court has held that the
procedure for the deprivation of fife and personal liberty must be fair, just
and reasonable and not fanciful, oppressive or arbitrary.
It may be said that the judiciary has shown its preference to life
imprisonment rather than sentencing the criminal to death. The exception,
however, is that the court has upheld the constitutionality of death sentence.
The question of Constitutional
impermissibility of death sentence, in the
light of spirit contained in the provisions of Articles 16, 19 and 21 of the
condition, was raised for the first time in JagMohan Singh V. state of U.P.
202
The court negative the contenting and held that deprivation of life is
constitutionally permissible provided it is done according to procedure
established by law. Soon after Jagmohan came the case of Ediga Anamma
V. state of Andhra Pradesh63 in which justice Krishna Iyer passed a
sentence of life imprisonment and commuted death sentence on the ground
of delay of two years in execution. Further, apex courts showed its positive
trend towards the philosophy of life and want a step forward stressing the
view point that humanistic imperatives of Indian Constitution need to be
explored at the hands of law.
Justice Krishna Iyer delivering the majority judgment, which was
concurred by Justice Desai, observed. It is fair to mention that the
humanistic imperatives of the Indian Constitution... have hardly been
explored by courts in this field of “Life or death” at the hands of law.
The Court held that death penalty can not be given unless it is shown
that murderous appetite of the convict is too chronic and deadly that ordered
life of a locality or society or a prison itself will be no more if this man is now
or later to be set at large. However, Sen. J. did not agree with the view point
coined by the Court. He will delivering dissenting opinion, held that it was not
legally permissible for this court while hearing an appeal in particular case
when a capital sentence is imposed to define the expression “Special
reasons” occurring in sub section 354 of the Criminal Code, in such a
manner, by a process of judicial interpretation as to limiting the scope of
63
A.I.R. (1974) SC 799
203
death penalty in a manner which has virtually the effect of abolishing death
sentence.
The court did not support the view point expounded in Rajendra
Prasad’s case. It was held by the court that in Bachchan Singh v State of
Punjab 64
that death sentence was not violation of Article 21 of the
Constitution. The court, however, relaxed its earlier trend and held in another
case of Bachchan Singh that death sentence be imposed in the “rarest of
rare cases”. The assassinations of Prime Minister Indira Gandhi and retired
Chief of the Army Staff General Vaidya, murder so Sanjay and Gita Chopra
are some of the cases in which death sentence was awarded on the
touchstone of the “rarest of rare cases criterion. Further, in Munaware Harun
Shah v. State of Maharashtra65
the appellants committed as series of
murders and the extreme penalty of death was upheld having regarded the
magnitude, the gruesome nature of the offences and the manner of
perpetrating them. It was also pointed out that nay leniency shown in the
matter of sentence would not only
be misplaced but will certainly give rise
to and foster a feeling of private revenge among people leading to
destabilization of the society..
4. Nithari murder case
A special Central Bureau of Investigation (CBI) Court found Surender
Koli guilty of the murder of seven-year-old Aarti, one of the 19 women and
children from Noida’s Nithari village whose body parts were found in a
64
65
A.I.R.(1983) SC 585
A.I.R.(1988)SC 747
204
drain.Aarti was the last known victim in the Nithari killings, having
disappeared just about two months before the case was busted
In the previous judgment in the Nithari killings the special CBI court
awarded the death sentence to Moninder Singh Pandher and Surinder Koli
for their respective roles in the Rampa Haldar murder case.
Just like in Halder murder case, the CBI has given a clean chit to
Pandher. Primarily on the basis of his cell phone records, while holding only
Koli guilty of the crime.
Unlike Rampa’s father Aarti’s parents Durga and Neelam Prasad
have never challenged CBI’s contention that Koli alone was the culprit.Aarti
had reportedly returned home from school on the afternoon of October 25,
2006 after which she went out to buy herself some toffees.
However, she never came back. A report about Aarti going missing
was then taken down at the Sector 20 police station in Noida.On December
29, 2006 Aarti’s remains were found buried behind Pander’s home in
Nithari.Both Pandher and Koli are accused of killing and disposing off the
bodies of 19 children and a young woman between 2005 and 2006.
The investigation of the case was handed over to the CBI on January
11, 2007. The CBI has filed charge sheets in 16 cases.66 A special CBI
court sentenced to death Surinder Koli servant of businessman Moninder
Singh Pandher for rape and murder of a nine-year-old girl in the sensational
66
Press trust of India : Nithari murder case may 04, 2010
205
Nithari killings in 2006, saying he deserved a more severe punishment for
his crimes.
Judge A.K. Singh said, “the crime was in the rarest of rare category”
and awarded death penalty to 38-year-old Koli for murdering Rachna, the
third case related to killing of young children and women in which he has
been awarded capital punishment, CBI counsel J P Sharma said.
“The judge awarded life imprisonment to Koli for kidnapping with fine
of Rs. 1000 and seven-year imprisonment and fine of Rs. 1000 for
committing rape and death penalty under section 302 IPC for killing Rachna
who was identified by her parents on the basis her belongings and DNA test
report,” he said.
The judge said that Koli “deserves more severe punishment but
nothing more can be awarded than the death penalty.”67
5. Tandoor Murder Case
A Delhi court held former youth Congress leader Sushil Sharma guilty
of killing his wife Naina Sahni and burning her body in the tandoor(oven) of a
restaurant in the Capital on July 2, 1995.
A division bench of Justice R.S.Sodhi and P.K. Bhasin upheld the trial
court’s 2003 judgment, awarding the death sentence to Sharma, ruling that,
“the accused deserves no leniency.”
67
Press Trust Of India : Death for Surindar Koli in Nithari Case.Sppl.28,2010
206
“The act of Sharma is so abhorrent and dastardly that in case death
penalty is not awarded to him it would be a mockery of justice and the
conscience of the society at large would be shocked,” the judges said.
This was surely a case, which fell within the category of “rarest of rare
cases” in which no other punishment except the death penalty would be
justified, they said.
“There are no chances of this kind of a person reforming himself, the
judges observed in their 89-page order.
“After giving our thoughtful and anxious consideration to all the facts
and circumstances of the case we are of the firm view that there cannot be a
better case for awarding death penalty than the present one,” the judges
said.
“Sharma definitely killed a helpless woman with whom he was
enjoying life by living with her as her husband but with reluctance to proclaim
openly that she was his wife,” the judges said.
The judges also refused to buy the contention of Sharma’s counsel
K.K. Sud that as far as burning of the dead body in an oven is concerned it
was only a step towards destruction of evidence of the crime and it was not
that a living person was charred to death.
While quoting a Supreme Court judgment, the judges said, “The
convict did not even stop there but exhibited the criminality in the conduct by
207
throwing the body in a burning oven, totally disregarding the respect for a
human body.” 68
4.14 Convicts on death row in India
Mohammed Ajmal Amir Kasab, the sole surviving perpetrator of 26/11
terror attack, convicted and ordered to be sent to gallows by a special
Mumbai anti terror court thursday is one more addition to the over 300
people on death row in India.
Some of the prominent ones on the death row are :
x
Mohammed Afzal Guru. Awaiting death sentence for his role in
Dec 13. 2001, terror attack on Indian Parliament,
x
Khalistan
Liberation
Force
terrorist...Davinder
Singh.Bhullar,
convicted for killing nine people and injuring 31.
x
Murugan, Santhan and Perarivalan alias Arivu, convicted for the
assassination of former prime minister Rajiv Gandhi in 1991.
x
Former Youth Congress leader Sushil Sharma, for the murder of
his wife Naina Sahni and later disposing of her body in tandoor
(clay oven) of a restaurant July 2, 1995.
x
Former senior police officer’s son Santosh KumarSingh, for raping
and killing his law college colleague Priayadarshini Mattoo in
1996.
68
ibnlive.com. Hc reserves verdict in Tandoor case.press trust of India Jan 17th 2007, javascript=
void(0)/printpage.php?id=31468& section id=56784
208
x
Three AIADMK workers - Nedunchezhian(41), Muniappan (52)
and Ravindran (also known as Madhu, 44) - for setting ablaze a
bus and killing three students, in Tamil Nadu,s Dharmapuri city in
2000.
x
Former Lok Sabha MP Anand Mohan Singh, former Bihar minister
Akhlaq Ahmed and former state legislator Arun Kumar for lynching
to Death Gopalganj district magistrate G. Krishnaiah in the state in
1994.
x
Pawan Kumar Mittal, A petrol pump owner in Uttar Pradesh.
Lakhimpur
Kheri for killing
Indian
Oil Corporation officer
S.Manjunath in November 2005.
x
Babbar Khalsa militants, Jagtar Singh Hawara and Balwant Singh
Rajoana for assassinating then Punjab chief minister Beant Singh
in 1995.
209