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SUBJECT- INDIAN PENAL CODE

TOPIC – CONSTITUTIONAL LIABILITY OF

DEATH SENTENCES.

Supervised By:
MS .RUPA PRADHAN

NAME: TOHIJUL SAIKH

ROLL NO.: 90
COURSE: LLB 3 YEAR 2nd Semester
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ACKNOWLEDGEMENT
With profound gratitude and sense of indebtedness I place on record my
sincerest thanks to Ms RUPA PRADHAN Indian Institute of Legal Studies, for her
invaluable guidance, sound advice and affectionate attitude during the course of
my studies.

I have no hesitation in saying that she molded raw clay into whatever I am
through his/her incessant efforts and keen interest shown throughout my
academic pursuit. It is due to his/her patient guidance that I have been able to
complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for
cooperating and making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

Date:09/03/2018

TEACHER SEGNATURE
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RESEARCH METHODOLOGY

AIM & OBJECTIVE OF THE STUDY

The aim of the study is to give knowledge about the laws relating to death
penalty and its constitutional validity in India. The objective of the study is to
bring to the light the crimes that lead to capital punishment. The main objective
is to show the arguments relating to the existence of death penalty and how
capital punishment still holds validity in the Indian Constitution even after
much criticism.

SCOPE OF STUDY

The study primarily focuses on the rule as it is developed in the common law
system and its implications on India. Its secondary focus also deals with the
situations prevailing in countries around the world.

SIGNIFICANCE OF THE STUDY

The study is significant as it helps us to know about the crimes which lead to
death sentence. The study contains certain national as well as international cases
which shows how the wrong doers in the world were punished and how it
affected the families of those who were hanged.

LIMITATION OF THE PROJECT

The project fails to conduct a primary research thorough examination,

interviews and surveys due to lack of time and vague understanding. The
research of the project limits to book and internet content.
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INTRODUCTION

‘Death Penalty is a process where a crime so grievous has been committed that
the state condemns the act by sentencing the convicted to death. It is only applied
in cases where the crime is of such nature that it cannot be vitiated without a
penalty of death. It has existed since time immemorial, the first recorded
instance being that of Hammurabi in the 18th Century B.C”

Death Penalty can be defined as the lawful infliction of death as a punishment

for a wrongful act. In this paper, the scope and validity of the death penalty in
the context of the Indian judiciary shall be discussed. Firstly we shall look at the
advent of death as a punishment for crimes and how it has evolved in several
other judicial systems all over the world.

In this context, the common arguments relating to death penalty put forwards by
the abolitionists and receptionists shall be discussed. The importance has been
given to the Indian context and the various statutes in India dealing with Capital
Punishment. This shall be followed by a brief of some of the most famous and
important cases relating to the subject matter decided by the Indian Courts. The
aim of this paper is to give the readers a clear understanding of the position of
the Indian courts in regard to the awarding of capital punishment.
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CHAPTER-I: CAPITAL PUNISHMENT

1.1: MEANING OF CAPITAL PUNISHMENT:

According to the Oxford Dictionary, Capital Punishment is the legally

authorized killing of someone as punishment for a crime.1 Capital Punishment is
the death sentence awarded for capital offences like crimes involving multiple
murders, repeated crimes, planned murder; rape and murder, etc wherein the
criminal provisions consider such persons as gross danger to the existence of the
society and provide death punishment.2 Death penalty is a legal process where a
person is put to death by the state as a punishment for a crime.

1.2: GENERAL OVERVIEW:

The history of Capital Punishment is as old as that of mankind. In the Western

world the first instance is that of “The Law of Moses", inflicting death for
blasphemy. By 1179 B.C. murder was considered to be a capital crime among
Egyptians and Greeks. In India, the Indian Epics namely, the Mahabharata and
the Ramayana also contain references about the offender being punished with
vadha-danda which means amputation bit by bit. Fourteen such methods of
amputating the criminals to death are known to have existed. This illustrates
that every country in the world, Capital Punishment has been in existence since
times immemorial.

In the beginning, offences against religion and morality attracted Capital

Punishment. However, the primitive societies soon grew up into kingdoms and
consequently criminal law also changed quickly.

1
http://www.oxforddictionaries.com/definition/english/capital+punishment
2
http://www.legal-explanations.com/definitions/capital-punishment.htm
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1.3: HISTORY OF DEATH PENALTY IN INDIA:

About 26 mercy petitions are pending before the President, some of them since
1992. These include those of Khalistan Liberation Force terrorist-Davinder
Singh Bhullar, the cases of slain forest brigand Veerappan's 4 associates—
Simon, Gnanprakasham, MeesekarMadaiah and Bilvendran—for killing 21
policemen in 1993; and the case of Praveen Kumar for killing four members of
his family in Mangalore in 1994. On 27 April 1995, Auto Shankar was hanged
in Salem, Tamil Nadu.

At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001

were sentenced to capital punishment (but not executed). No official statistics of
those sentenced to death have been released.

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 20 October 2006, but
the sentence was stayed. Guru was hanged on 9 February 2013 at Delhi's Tihar
Jail.
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CHAPTER-II: POSITION OF DEATH SENTENCES IN

DIFFERENT COUNTRIES

The death penalty is a legal process whereby a person is put to death by the state
as a punishment for a crime. The judicial decree that someone is punished in
this manner is a death sentence, while the actual process of killing the person is
an execution. There has been a global trend towards the abolition of capital
punishment; however, India has not adopted this position. What makes this
form of punishment different from the others is the obvious element of
irreversibility attached to it. A man once executed for a crime can never be
brought back to life. So if any error has crept in while deciding on a matter, this
error cannot be rectified at a later stage.

2.1: POSITION IN THE UNITED STATES:

Capital punishment was suspended in the United States from 1972 through 1976
primarily as a result of the Supreme Court’s decision in Furman v.Georgia. In
this case, the court found that the death penalty was being imposed in an
unconstitutional manner, on the grounds of cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution. The
Supreme Court has never ruled the death penalty to be per se unconstitutional.
In Furman v. Georgia, however, Justice Stewart took the view that the death
penalty serves a deterrent as well as retributive purpose.

The Court in Gregg v. Georgia upheld a procedure in which the trial of capital
crimes was bifurcated into guilt-innocence and sentencing phases. At the first
proceeding, the jury decides the defendant’s guilt; if the defendant is innocent or
otherwise not convicted of first-degree murder, the death penalty will not be
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2.2: POSITION IN THE UNITED KINGDOM:

Around the 17th century, Death penalties were one of the most commonly meted
out punishments in the UK. The common law in those days was called “Bloody
Code”[vii] because at one point there were up to 220 offenses which were
punishable by death, including “being in the company of Gypsies for one
month”, “strong evidence of malice in a child aged 7–14 years of age” and
“blacking the face or using a disguise whilst committing a crime”.

The Murder (Abolition of Death Penalty) Act 1965 suspended the death penalty
in England, Wales and Scotland (but not in Northern Ireland) for murder for a
period of five years, and substituted a mandatory sentence of life imprisonment.
After this even though the death penalty still remained part of the legal
framework it was implemented in a few exceptional cases only.

2.2: POSITION IN INDIA:

In India Article 21 of the Constitution titled ‘Protection of life and personal

liberty’ says:

No person shall be deprived of his life or personal liberty except as according

to procedure established by law.

This article of the Constitution enshrines the Right to Life guaranteed to every
individual in India. The constitutional validity of capital punishment has been
called into question several times in the India judiciary and this paper shall try
to examine those several occasions.

The Indian Penal Code, 1860 awards death sentence as a punishment for various
offenses. Some of these capital offences under the IPC are punishment for
criminal conspiracy (Section 120B), murder (Section 302), waging or
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attempting to wage war against the Government of India (Section 121),

abetment of mutiny (Section 132), dacoity with murder (Section 396) and
others. Apart from this, there are provisions for the death penalty in various
legislations like the NDPS Act, anti-terrorism laws etc.

The Indian Constitution has provision for clemency of capital punishment by

the President. Once the Sessions Court has awarded death sentence to a convict
in a case, it must be confirmed by the High Court. Even after that, the convict
may prefer an appeal to the Supreme Court. If this also fails the accused has the
option of submitting a ‘mercy petition’ to the President of India and the
Governor of the State. Detailed instructions regarding the procedure to be
observed by the states for dealing with petitions for mercy from or on behalf of
convicts under sentence of death and with appeals to the Supreme Court and
applications for special leave to appeal to that court by such convicts are laid
down by the Ministry of Home Affairs.
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CHAPTER-III: INDIAN PENAL CODE AND CRIMINAL

PROCEDURE CODE

As far as India is concerned, the provisions relating to Capital Punishment are

embodied in the Criminal Procedure Code and the Indian Penal Code. Indian
Penal Code is the substantive law, which states the offences, which are
punishable with death sentence. Criminal Procedure Code is the procedural law,
which explains the procedure to be followed in death penalty cases. The
substantive law of India viz., Indian Penal Code was enacted in the year 1860.
Though very few Amendments are made here and there, in total it remains
unchanged, whereas Criminal Procedure Code was amended substantially once
in 1955 and reenacted in 1972. Though majority of the provisions remain
unchanged Section 235(2) and Section 354(3) underwent a major change. The
present chapter mainly deals with the substantive and procedural laws
pertaining to Capital Punishment. It is also proposed to discuss the power of the
executive to grant pardon and commute death into life imprisonment as
provided under the Indian Constitution. A major amendment took place in the
Codes in 2013, namely The Criminal Law (Amendment) Act, 2013. It is an
Indian legislation which provides for amendment of the Indian Penal Code,
Criminal Procedure Code and Indian Evidence Act on laws related to sexual
offences. It was promulgated in the light of the protests in the 2012 Delhi gang
rape case.

3.1 INDIAN PENAL CODE AND CRIMINAL PROCEDURE CODE:

As far as India is concerned, the provisions relating to Capital Punishment are
embodied in the Criminal Procedure Code and the Indian Penal Code. Indian
Penal Code is the substantive law, which states the offences, which are
punishable with death sentence. Criminal Procedure Code is the procedural law,
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which explains the procedure to be followed in death penalty cases. The

substantive law of India viz., Indian Penal Code was enacted in the year 1860.
Though very few Amendments are made here and there, in total it remains
unchanged, whereas Criminal Procedure Code was amended substantially once
in 1955 and reenacted in 1972. Though majority of the provisions remain
unchanged Section 235(2) and Section 354(3) underwent a major change. The
present chapter mainly deals with the substantive and procedural laws
pertaining to Capital Punishment. It is also proposed to discuss the power of the
executive to grant pardon and commute death into life imprisonment as
provided under the Indian Constitution. A major amendment took place in the
Codes in 2013, namely The Criminal Law (Amendment) Act, 2013. It is an
Indian legislation which provides for amendment of the Indian Penal Code,
Criminal Procedure Code and Indian Evidence Act on laws related to sexual
offences. It was promulgated in the light of the protests in the 2012 Delhi gang
rape case.

3.2 CAPITAL OFFENCES UNDER INDIAN PENAL CODE:

The Indian Penal Code provides for the imposition of Capital Punishment in the
following cases:

Section 121 provides that whoever wages war against the Government of India
or attempts to wage such war, or abets the waging of such war, shall be
punished with death or imprisonment for life and shall also be liable to fine.

The offence under Section 121 is a capital offence because it threatens the very
existence of an organized Government, which is essential for the protection of
human life.

Section 124-A provides death penalty for sedition. The line dividing preaching
disaffection towards the Government and legitimate political activity in a
democratic set-up cannot be precisely drawn. Where the legitimate political
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criticism of the Government in power ends and disaffection begins, cannot be

ascertained with precision. The demarcating line between the two is very thin.
What was sedition against the Imperial Rulers May today pass of as legitimate
political activity in a democratic set-up under our libertarian Constitution? The
interpretation has to be moulded within the letter and spirit of our Constitution

3.3 PROVISIONS UNDER CRIMINAL PROCEDURE CODE:

The Criminal Procedure Code, 1973 provides a new provision in Section 235(2)
at the stage of sentencing.3 The object of this provision is to give a fresh
opportunity to the convicted person to bring to the notice of the court in
awarding appropriate sentence having regard to the personal, social and other
circumstances of the case.

The accused may have some grounds to urge for giving him consideration in
regard to the sentence such as that he is breadwinner of the family about which
the court may not be made aware of during the trial.4 The social compulsion ,the
heredity, the retributive instinct to seek an extra legal remedy to a sense of being
wronged, the pressure of poverty, the lack of means to be educated in the
difficult art of an honest living, the parentage - all these and similar other
considerations can, legitimately and hopefully, tilt the scales on the propriety of
sentence. The mandate of Section 235(2) must therefore be obeyed in its letter
and spirit.5

The ultimate shift in legislative emphasis is that, under the New Criminal
Procedure Code, 1973, life imprisonment for murder is the rule and Capital

3
Section 235 (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
4
Subhash C. Gupta: Capital Punishment in India: 119 (1986)
5
Dagduv.State of Maharashtra: AIR 1977 S.C.1579.
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Punishment the exception - to be resorted to for reasons to be stated as per

Section 354(3) of Criminal Procedure Code.6 "

Section 354(5) of Criminal Procedure Code deals with the execution of death
penalty. It provides that "when any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead." Even if it is not
mentioned so also, there is no difficulty. The High Court has to confirm the
death sentence imposed by the Sessions Court.

Section 366 of Code Criminal Procedure insists upon the confirmation of death
penalty by the High Court. The first provision of this particular section states,
“When the Court of Session passes a sentence of death, the proceedings shall be
submitted to the High Court, and sentence shall not be executed unless it is
confirmed by the High Court.”7

Section 368 of Criminal Procedure Code empowers the High Court to confirm
sentence or annul conviction. It envisages "In any case submitted under Section
366, the High Court - (a) may confirm the sentence, or pass any other sentence
warranted by law, or (b) annul the conviction, and convict the accused of any
offence of which the court of session might have convicted him, or order a new
trial on the same or on amended charge, or (c) may acquit the accused person;
Provided that no order of confirmation shall be made under this section until the
period allowed for preferring an appeal has expired, or, if an appeal is presented
within such period, until such appeal is disposed of."

Section 369 of the Code prescribes that either confirmation of the sentence or
new sentence is to be signed by two judges of High Court. It runs thus: "In
every case so submitted, the confirmation of the sentence, or any new sentence
or order passed by the High Court, shall when such Court consists of two or
more Judges, be made, passed and signed by at least two of them."
6
EdigaAnnamma v. State of Andhra Pradesh: AIR 1974: S.C. 799
7
Masalti v. State: AIR 1965 S.C. 202
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CHAPTER-IV: DEBATE OVER RETENTION AND ABOLITION

OF DEATH PENALTY

4.1 ARGUMENTS FOR RETENTION OF DEATH PENALTY

 Capital Punishment acts as a deterrent- If the death sentence is

removed, the fear that comes in the minds of the people committing
murder will be removed. “Do we want more of murders in our country or
do we want less of them?”8 All sentences are awarded for the protection
of the society, so that every individual lives in peace. Capital punishment
is necessary for this security.9 The fear of being hanged prevents a person
from committing heinous crimes which is a step forward in keeping the
nation safe.
 Elimination of the criminals- Death Penalty is the only means of
eliminating the offender who puts public peace into danger by
committing certain dangerous forms of crime. 10
 Possibility of repeated crimes- Society must be protected from the risk
of a second offence by a criminal who is not executed and may be
released. After release he may commit the same crime again.11
 Condition in India- In countries where capital punishment has been
abolished, the figure of homicide is very low; four in a million or even
less than that.12 In India the figure of homicide is huge and abolishment
of death penalty will further aggravate it.
 Saving of funds- Money of citizens should not be spent on maintaining
people who cause harm to them. The tax payers should not be called upon

8
By Late Shri GovindBallabh Pant, Minister of Home Affairs, Rajya Sabha Debate, 25 th April 1958
9
Late Shri Datar, Minister of State in the Ministry of Home Affairs, Rajya Sabha Debate, 25th April 1958
10
U.N. Publication, page 59, paragraph 216
11
Ceylon Report, Summary of arguments, page 39, under “long term effects”
12
Smt. Violet Alva, Rajya Sabha Debate,8th September 1961, col. 3817
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to pay for the maintenance of anti-social criminals for an indefinite or a

very long period.
 Proportionate to crime- The punishment should bear a just proportion to
crime. Thus capital punishment is the only fit punishment for those who
have deliberately violated the sanctity of human life.
 No miscarriage of justice- If there is miscarriage of justice in one or two
cases, the higher courts can be approached. The whole machinery of the
Government will be there to protect the life of an innocent person.
 It marks the reprobation of society-Capital punishment marks the
society’s detestation and abhorrence. Capital Punishment marks the
detestation and abhorrence of the taking of life and its revulsion against
the crime of crimes. It is supported not because of a desire for vengeance,
but rather as the society's reprobation to the grave crime of murder. 13

4.2 ARGUMENTS FOR ABOLITION OF DEATH PENALTY

 Religious, moral and ethical values- The abolitionists point to the fifth
commandment in support of their argument. "Thou shall not kill" and to
Christ’s appeal in the Sermon on the Mount. "Do good to those who hate
you." In Mahabharata also, Satyaketu, Dyumatsena's son was against
Capital Punishment. He protested against the mass scale executions
ordered by his father and argued that destruction of human life can never
be justified on any ground.14 Life is a precious gift of God. God, who
gives the life, alone, has the right to take it back. Any agency including
the judiciary should not execute this right. Father of the Indian Nation-
Mahatma Gandhi also reiterated the same thing long back. "God alone

13
Law Commission of India: Thirty Fifth Report: Para 55: (1967)
14
Mahabharata: Shanti Parva: Chapter CCLXVII, Verses- 4-13
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can take life. Because, He alone gives it. Destruction of human life can
never be a virtuous act.”15
 Capital Punishment is barbarous- Capital Punishment is a cruelly
callous investment by unsure and unkempt society in punitive
dehumanization and cowardly strategy based on the horrendous
superstition that cold-blooded human sacrifice by professional hangman
engaged by the state will propitiate the Goddess of Justice to bless
Mother Earth with crimeless society.16 Execution brutalizes those
involved in the process.
 Right to life and the State-Every individual is entitled to have his rights
and each individual has a responsibility to protect those rights for all
others. Life is a universal human right. To put off such a right by the
State diminishes the basic concept of the dignity of the individual, and
this dignity is an inalienable right. Article 21 of The Indian Constitution
provides every citizen of the country with the right to life and personal
liberty. The abolitionists say that capital punishment is violative of this
fundamental right and hence should be abolished.
 Capital Punishment is not a deterrent- Studies and researches show
that it has been concluded that ," violent crime follows a curve that is a
function of social and economic conditions and the evolution of the
moral values of society at a given moment. It is unaffected by the
existence or absence of Capital Punishment. In other words the death
penalty does not reduce crime, nor does its abolition increase it."
Capital Punishment rules out the possibility of reformation- Every
saint has a past and every sinner a future. Never write off the man
wearing the criminal attire but remove the dangerous degeneracy in him,
restore retarded human potential by holistic healing of his fevered,
15
Krishna Iyer.J. “ Death Sentence on Death Sentence” The Indian Advocate: Journal of the Bar Associate of
India: VXVIII 34 (Jan-June ,1978) See also Gollanz: Capital Punishment the Heart of the Matter: p. 9 (1955)
16
Ibid
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CHAPTER-V: CASE LAWS

 Bachan Singh v. State of Punjab

In this case, the Supreme Court by 4 : 1 majority has overruled
Rajendra Prasad’s decision and has held that the provision of death
penalty under Section 302 of I.P.C. as an alternative punishment for
murder is not violative of Article 21.
Article 21 of the Constitution recognizes the right of the State to
deprive a person of his life or personal liberty in accordance with
reasonable, just and fair procedure established by law. In view of the
constitutional provision by no stretch of imagination it can be said
that death penalty under Section 302, I.P.C. either per se, or because
of its execution by hanging constitutes an unusual, cruel or
unreasonable punishment. The death penalty for the offence of murder
does not violate the basic feature of the Constitution. The International
Covenant on Civil and Political Rights to which India has become party
in 1979 do not abolition of death penalty in all circumstances. All that it
requires is, that (1) death penalty should not be arbitrarily inflicted,
(2) it should be imposed for the most serious crimes. Thus the
requirements of International Covenant is the same as the
guarantees and prohibitions contained in Article 20 and 21 of our
Constitution. The I.P.C. prescribes death penalty as an alternative
punishment only for heinous crimes. Indian Penal Laws are thus
entirely in accord with international commitment.
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 Rajendra Prasad v. State of U.P.

Krishna Iyer, J., held that capital punishment would not be justified
unless it was shown that the criminal was dangerous to the society. He
held that giving discretion to the Judge to make choice between death
sentence and life imprisonment on ‘‘special reason" under Section 354
(3) of Cr.P.C. would be violative of Article 14 which condemns
arbitrariness. He pleaded for the abolition or the scope or Section
302, I.P.C. and Section 354 (3) should be curtailed or not is a
question to be decided by the Parliament and not by the Court. It
is submitted that minority judgment is correct because after the
amendment in the Cr.P.C. and the decision in Jagmohan Singh's
case the death penalty is only an exception and the life
imprisonment is the rule. The discretion to make choice between
the two punishments is left to the Judges and not to the Executive.

 Rampal Pithwa Rahidas v. State of Maharashtra ,1994

In this case the trial court had sentenced eight people to death. The High
Court upheld the sentences of five of them, but the Supreme Court
acquitted them all, noting that the main evidence against them was not
trustworthy. The Court noted sarcastically that the main witness's
memory constantly improved (his testimony at the trial three years after
the incident was observed to be far more detailed than his confessional
statement recorded a few days after the incident). The Court concluded
that the witness was pressured by the police to give evidence because “the
investigation had drawn a blank and admittedly the District Police of
Chandrapur was under constant attack from the media and the public.”
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 Sudama Pandey and others v. State of Bihar,1991

In this case the trial court had sentenced five people to death for the
attempted rape and murder of a 12-year-old child, the High Court had
commuted the sentences, but the Supreme Court noted that it was
unfortunate that the High Court did not also properly review the evidence.
Acquitting the accused, the Supreme Court noted that both the trial court
and the High Court had committed a serious error by appreciating
circumstantial evidence, resulting in a miscarriage of justice.
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CONCLUSION

In India, the provision for death sentence still prevails as part of criminal
jurisprudence but the Supreme Court of India has repeatedly asserted that it
should be imposed only in the rarest of rare case. The highest Judicial Tribunal
of the country has given from time to time authoritative pronouncements and
made it clear that the provisions for death sentence are not violative of Articles
14, 19 and 21 of the Constitution. Thus, the provisions dealing with death
sentence are not opposed to the Constitution, but care must be exercised in
every case to look into the circumstances of the case, facts and the nature of the
crime for making choice between the imposition of death penalty and the award
of the sentence of life imprisonment. However, the death penalty should be
imposed only in accordance with the procedure established by law.

For all the offences, in which death sentence is the punishment, it may be noted
that it is not the only punishment, it is the extreme penalty. Thus, these
provisions, by virtue of their very wordings, provide for a discretion which is to
be vested in the courts to decide the quantum of punishment. Now comes the
question as to when should the courts be inclined to inflict death sentence to an
accused? 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...”