DEATH PENALTY

Crimes punishable with death or life imprisonment under IPC are

(1) Waging was against the Government of India. (S. 121)
(2) Abetting mutiny actually committed (S. 132)
(3) Giving or fabricating false evidence upon which an innocent person suffers death. (S. 194)
(4) Murder which may be punished with death or life imprisonment (S. 302)
(5) Abetment of suicide of a minor on insane, or intoxicated person. (S. 305)
(6) Dacoity accompanied with murder. (S. 396)
(7) Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (S.
307)

Other crimes punishable with death term in India fall under

Commission of Sati (Prevention Act) 1987
Explosive Substances Act, 1908
Petroleum and Minerals Pipelines (Acquisition of right of user in land) Act 1962
Unlawful Activities (Prevention) Act 1967
Narcotic Drugs and Psychotropic Substances (NDPS) 1985
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989
Maharashtra Control of Organised Crime Act, (MCOCA) 1999
Karnataka Control of Organised Crime Act, 2000
Andhra Pradesh Control of Organised Crime Act, 2001
The Prevention of Child Sexual Offences Act, (POCSO) 2012
Anti Hijacking Act, 2016
and other martial laws

Constitutionality of S. 302
The first case where the constitutionality of S. 302 was challenged was Jagmohan Singh v.
Uttar Pradesh AIR 1973 SC 947. The validity of death sentence was first time challenged on
ground that it was violative of Arts. 19 and 21 because it did not provide any procedure. It was
contended that the procedure prescribed under Criminal Procedure Code was confined only to
findings of guilt and not awarding death sentence.

A 5 member Bench of the Court held that capital punishment was not violative of Arts. 14, 19
and 21 and was therefore constitutionally valid.

The Judge makes the choice between capital sentence or imprisonment of life on the basis of
circumstances and facts and nature of crime brought on record during trial.

The impossibility of laying down standard (in the matter of sentencing) is at the very core of
criminal law as administered in India which invests the Judges with a very wide discretion in the
matter of fixing the degree of punishment and that this discretion in the matter of sentence is
liable to be corrected by superior courts. The exercise of judicial discretion on well recognised
principles is, in the final analysis, the safest possible safeguard for the accused.

Hon’ble Supreme Court relied on 35th Law Commission Report in 1967. High-powered body
summed up its conclusions at page 354 of its Report, as follows:

The issue of abolition or retention has to be decided on a balancing of the various arguments for
and against retention. No single argument for abolition or retention can decide the issue. In
arriving at any conclusion on the subject, the need for protecting society in general and
individual human beings must be borne in mind.
It is difficult to rule out the validity of the strength behind many of the arguments for abolition
nor does the Commission treat lightly the argument based on the irrevocability of the sentence of
death, the need for a modern approach, the severity of capital punishment and the strong feeling
shown by certain sections of public opinion in stressing deeper questions of human values.

Having regard, however, to the conditions in India, to the variety of the 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 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.

Ediga Anamma v. State of A.P., (1974) 4 SCC 443

In Ediga, the Court holds that the unusual brutality of a crime would be a factor to award the
death sentence.

In Santa Singh v. State of Punjab (1976) 4 SCC 190, the Court noted that the mandatory pre-
sentencing hearing was ‘in consonance with the modern trends in penology and sentencing
procedures' and commented on what such hearings were meant to achieve;

"a proper sentence is the amalgam of many factors such as the nature of the offence, the
circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of
the offender, the age of the offender, the record of the offender as to employment, the
background of the offender with reference to education, home, life, sobriety and social
adjustment, the emotional and mental condition of the offender, the prospects for the
rehabilitation of the offender, the possibility of return of the offender to a normal life in the
community, the possibility of treatment or training of the offender, the possibility that the
sentence may serve as a deterrent to crime by the offender or by others and the current
community need, if any, for such deterrent in respect to the particular type of sentence."

In Rajendra Prasad v. State of U.P AIR 1979 SC 916, Krishna Iyer, J., held that capital
punishment would not be justified unless it was shown that the criminal was dangerous to the
society. Section 302 of the IPC throws little light on when the court shall award the sentence of
the lesser penalty. Since law reflects life, new meanings must permeate the Penal Code.

The only question before the Court is as to when and why shall capital punishment be
pronounced on a murderer and why not in other cases, within the confines of the Code. Urgency
to the solution is obvious. The overt ambivalence and covert conflict among judges concerning
continued resort to the death sentence mirrors the uncertainties and conflicts of values in the
community itself.

Section 302 of the IPC throws little light on when the court shall be the sentence of why the
lesser penalty shall be preferred. Since law reflects life, new meanings must permeate the Penal
Code. Deprivation of life under our system is too fundamental to be permitted except on the
gravest ground and under the strictest scrutiny.

Under S. 354, sub-s. (3) of the Code of Criminal Procedure, 1973, the Court is required to state
the reasons for a sentence awarded, and in the case of imposition of a sentence of death the Judge
has to record "special reasons" for imposing death sentence. Punishment for murder as a rule
should be life imprisonment and death sentence is only an exception.

The social justice which the Preamble and Part IV (Art. 38) highlight, as paramount in the
governance of the country has a role to mould the sentence. If the murderous operation of a die-
hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his
enjoyment of fundamental rights may be rightly annihilated. One test for imposition of death
sentence is to find out whether the murderer offers such a traumatic threat to the survival of
social order. Some of the principles are-never hang unless society or its members may lose more
lives by keeping alive an irredeemable convict. Therefore social justice projected by Art. 38
colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14. This complex
of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits
reaching menacing proportions, economic offenders profit killing in an intentional and organised
way, are such categories in a Third World setting.

Such extraordinary grounds alone constitutionally qualify as special reasons as leave no option to
the court but to execute the offender if State and society are to survive. One stroke of murder
hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the
situation, unless the inherent testimony oozing from that act is irresistible that the murderous
appetite of the convict is too chronic and deadly that ordered life in a given locality or society or
in prison itself would be gone if this man were now or later to be at large. If he is an
irredeemable murderer, like a bloodthirsty tiger, he has to emit his terrestrial tenancy.

Special reasons necessary for imposing death penalty must relate not to the crime as such but to
the criminal.

Dissenting opinion of Justice A. P. Sen

It is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by
special leave under Art. 136 of the Constitution, on a question of sentence, to restructure s. 302
of the Indian Penal Code,1860 or s. 354, sub-s. (3) of the Code of Criminal Procedure 1973, so
as to limit the scope of the sentence of death provided for the offence of murder under s. 302.

The question whether the scope of the death sentence should be curtailed or not, is one for the
Parliament to decide. The matter is essentially of political expediency and, as such, it is the
concern of statesmen and, therefore, properly the domain of the legislature, not the judiciary.

Bachan Singh vs State Of Punjab AIR 1980 SC 898

Rarest of Rare Case doctrine

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

In Machhi singh vs. State of Punjab AIR 1983 SC 957, the court again laid down:-
In order to apply these guidelines inter alia the following questions may be asked and answered:
(a). Is there something uncommon about the crime which renders sentence of imprisonment for
life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances which speak
in favour of the offenders?"

Section 303 of I.P.C.

It contemplates, whoever, being under sentence of imprisonment for life, commits murder, shall
be punished with death. In Mithu v. State of Punjab AIR 1983 SC 473, the legality of Section
303 was examined by the Full Bench of the Supreme Court. The majority opinion was that this
section violates the guarantee of equality contained in Art. 14 and also the right contained in Art.
21 of the Constitution. The section was held to have been conceived to discourage assaults by the
life convicts on the prison staff but the legislatures choose a language which far exceeded its
intention. It was, further held that the section proceeds on the assumption is not supported by any
scientific data. The majority view was that it mainly violates Art. 21 of the Constitution.

One of the initial executions of independent India, was of Nathuram Godse and Narain D Apte,
assassins of Mahatma Gandhi; they were hanged to death in Ambala Central Jail in Haryana on
November 15, 1949.