CONSTITUTIONAL VALIDITY OF

DEATH PENALTY

Submitted to: Submitted by:

Rasheed CA Mohammad Arish

Roll No.67

Semester V

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 Acknowledgement

On the completion of this project I find that there are many persons to whom I would like to express
my gratitude, since without their help and co-operation the success of this educative endeavour
would not have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and guide Mr.Rasheed
CA, who has been a constant source of encouragement and guidance throughout the course of
this work.

Thanks are also due to all members of the Library staff for their help and assistance.

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Table of Contents

Introduction. ........................................................................................................... 5

Meaning of Death penalty .......................................................................................5

Death penalty in various countries ....................................................................... 7

Death penalty under various legislations in India. ............................................. 9

Abolition of Death penalty .....................................................................................10

Constitutional validity of Death penalty ............................................................. 15

Principle of rarest of rare. ...................................................................................... 17

Recent rarest of rare cases of Death penalty ...................................................... 18

Conclusion……………………………………………………………………..19

Bibliography……………………………………………………………………20

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 INTRODUCTION

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing.
Most systems of religion or ethics teach that bad actions lead to bad consequence. There are two
main reasons for inflicting the punishment. One is the belief that it is both right and just that a
person who has done wrong should suffer for it; the other is the belief that inflicting punishment on
wrongdoers discourages others from doing wrong. The death penalty also rests on the same
proposition as other punishments. Because of its drastic and irrevocable nature, it is even more open
to debate over its fairness, appropriateness and effectiveness than other punishments. The
proponents of death penalty believe that it is an effective way to stop crime. They focus on the death
penalty as a deterrent or something that will stop or lesson crime. They believe that the death
penalty brings the most justice to the victim of a heinous crime.

Death penalty has been a mode of punishment since time immemorial. The arguments for and
against has not changed much over the years. Crimes as well as the mode of punishment correlate to
the culture and form of civilization from which they emerge. At this point of time when the issue
[whether Death penalty must be abolished or not] is still raging, it will be appropriate to remind
ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has
come up before them. Another issue is regarding the extent of judicial discretion.

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MEANING OF DEATH PENALTY1:

According to oxford Dictionary, Death penalty is the legally authorized killing of someone as
punishment for a crime. Death penalty is the death sentence awarded for capital offences like crimes
involving planned murder, multiple murders, repeated crimes; rape and murder etc where in the
criminal provisions consider such persons as a gross danger to the existence of the society and
provide death punishment2. Death penalty or the death penalty is a legal process whereby a person
is put to death by the state as a punishment for a crime.

1 http://oxforddictionaries.com/definition/english/capital%2Bpunishment

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DEATH PENALTY: AN EFFECTIVE DETERRENT TO CRIME:

There is a great deal of debate over how powerful a deterrent Death penalty is. Most of us have an
instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the
fundamental reasons for punishment of any kind. Since death is considered the harshest punishment
available under the law, it seems logical that it must also be the most effective deterrent to crime.
The English barrister Sir James Stephen remarked, “No other punishment deters men so effectually
from committing crimes as the punishment of death.” “In any secondary punishment, however
terrible, there is hope; but death is death; its terror cannot be described more forcibly3.” The federal
prisons now have custody of a man sentenced to life imprisonment, who, since he has been in
prison, has committed three more murderers on three separate occasions- both of prison guard and
inmates. There is no further punishment that he can receive. In effect, he has a license to murder4.”

ORIGINS OF DEATH PENALTY:

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of
the ancient society imposed it only for the most heinous crimes and some imposed it for minor
offences. For example, under Rome’s law in the 5th century B.C., death was the penalty for
publishing “insulting songs” and disturbing the peace of the city at night. Under Greece’s Draconian
Legal Code in the 7th century B.C., death was the punishment for every crime. Beginning in ancient
times the executions were frequently carried out in public. Public executions provided benefits for
everyone. For the surviving victims of the condemned criminals, the execution provided the grim
satisfaction of witnessing the final punishment of those who had wronged them. For the authorities,
executions served as graphic demonstrations of their determination to protect the public safety.
Public executions even helped the authorities to do their jobs serving as grisly object lessons for
potential wrongdoers.

The extent or the nature of the punishment depended as much on the social standing of the criminal

1 Quoted by Leonard A. Stevens in Death Penalty: The Case of Life vs. Death in the United States
(New York: Coward, McCann & Geoghegan, 1978), 73
2 “Bring Back the Death Penalty,” U.S. News & World Report (April 1976); reprinted in The Death Penalty, ed. Irwin
Isenberg (New York: H.W. Wilson, 1977), 133

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as on the nature of the crime. The commoners were executed much more often than nobles.
Minorities and foreigners were treated more harshly than members of the dominant group. The
methods of execution were also varied. The common modes of inflicting death sentence on the
offender were drowning, burning, boiling, beheading, hurling the offender from rock, stoning,
strangling, impelling, amputating, shooting by gun or starving him to death. Hanging and beheading
were the most common methods of execution in Europe and Great Britain. At present the common
modes of execution of death sentence are asphyxiation, electrocution, guillotine, shooting and
hanging. The method of execution by electrocution was first used at Auburn State Prison, New York
on 1890 and is now being extensively used in USA, UK, USSR, Japan and other European
countries. The use of Guillotine for execution was introduced in France in 1792. The method of
hanging the condemned prisoner till death has been commonly in use in almost all the countries
since ages. In India public hanging is now held to be unconstitutional5.

DEATH PENALTY IN VARIOUS COUNTRIES:

 DEATH PENALTY IN AMERICA:

In the wake of the American Revolution, the U.S. Constitution gave both the states and the federal
government the right to set their own criminal penalties. The very first congress of the United States
passed federal laws making death penalty for rape and murder and other crimes. Although the death
penalty was widely accepted in the early United States but its approval was not the universal. Some
of the people viz. Cesare Beccaria, Thomas Jefferson, Dr. Benjamin Rush expressed serious doubts
and objections and advocated that Death penalty might be abolished. And in 1917, the state of
Missouri and the territory of Puerto Rico both abolished the death penalty. The opposition to the
death penalty gathered strength again in the mid-twentieth century after the controversial executions
of Willie Francis, Burton Abbot, Caryl Chessman and Barbara Graham. Once again, several states
either abolished or restricted the use of the death penalty.

In 1972, American abolitionists scored their greatest success. In the case of Furman v. Georga6, the
U.S. Supreme Court declared that the death penalty, as it was then carried out, was ‘cruel and
unusual’ punishment, therefore it was unconstitutional. Four years later, the Court ruled in several
cases. In Gregg v. Georgia7, Supreme Court said that death penalties imposed in some states under
new laws were constitutional. But the murder is a capital offence in all thirty-eight of the U.S. states
3 Lachma Devi v. State of Rajasthan, (1986) Cri L.J. 364
6 408 US 238 - 1972
7 428 US 153 - 1976

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that have the death penalty.
 DEATH PENALTY IN BRITAIN:

Hanging was the traditional form of Death penalty in England. However it was not the only one. In
England beheading was normally reserved for the highborn and it was last used in 1747. Hanging
was the most common method of execution in England from Saxon times until the 20th century.
The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who were
hanged on the same day in 1964. In Britain the death penalty for murder was abolished for an
experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held
on the restoration of Death penalty in 1979 and 1994 but both times it was rejected8.

 DEATH PENALTY IN INDIA:

Year 1975 and 1991, about 40 people were executed. Year 1995-2004 when there were no
executions. Anti-death penalty activist dispute those figures, claiming much higher numbers on
Death Row and actual executions. In August 2004, a 41-year old former security man, Dhananjoy
Chatterjee, was executed for raping and killing a 14 year old schoolgirl in Calcutta. This was the
country’s first execution since 1995. In 2005, about a dozen people were on the country’s Death
Row.
It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from
convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the
president.

8 http://www.localhistories.org/capital.html
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Mode of Execution:

The execution of death sentence in India is carried out by two 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 out in accordance with
section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death. Section
354(5) of Code of Criminal Procedure says, “When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead.” It is also provided under The Air Force
Act, 1950, The Army Act 1950 and The Navy Act 19572 that the execution has to be carried out
either by hanging by neck till death or by being shot to death.

DEATH PENALTY UNDER VARIOUS LEGISLATIONS IN INDIA:

Death penalty is prescribed as one of the punishments in various provisions of the Indian Penal
Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act 1985, and
The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati
(Prevention) Act, 1987, The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957. In
the Prevention of Terrorism Act, 2002 also, there was a provision for death penalty for causing
death of persons using bombs, dynamite or other explosive substances in order to threaten the unity
and integrity of India or to strike terror in the people. It is also interesting to note that under the
Arms Act, NDPS Act and the Scheduled Caste and Scheduled Tribes Act, Death penalty is the only
punishment for the offence covered by those sections, thus leaving no room for the judiciary to
exercise its discretion. It is doubtful whether these provisions can stand the test of the constitutional
validity in the light of the decision in Mithu v. State of Panjab10 Because in this case section 303
of the Indian Penal Code16 was struck down as violative of Article 21 and 14 of the Constitution of
India, as the offence under the section was punishable only with Death penalty and did not give the
judiciary the power to exercise its discretion and thus resulted in an unfair, unjust and unreasonable
procedure depriving a person of his life.

9 http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html
10 AIR 1983 SC 47

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ABOLITION OF DEATH PENALTY:

There are four groups of the countries regarding the abolition or retention of the Death penalty.

These are:

1. ABOLITIONIST FOR ALL CRIMES:

Countries whose laws do not provide for the death penalty for any crime:
Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan,
Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands,
Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican
Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau,
Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Liechtenstein,
Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia,
Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand,
Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania,
Rwanda, Samoa, San Marino, Sao Tome And Principe, Senegal, Serbia (including Kosovo),
Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-
Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan,
Vanuatu, Venezuela.

2. ABOLITIONIST FOR ORDINARY CRIMES ONLY:

Countries whose laws provide for the death penalty only for exceptional crimes such as crimes
under military law or crimes committed in exceptional circumstances:
Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia and Peru.

3. ABOLITIONIST IN PRACTICE:

Countries which retain the death penalty for ordinary crimes such as murder but can be considered
abolitionist in practice in that they have not executed anyone during the past 10 years and are

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believed to have a policy or established practice of not carrying out executions. The list also
includes countries which have made an international commitment not to use the death penalty:
Algeria, Benin, Brunei, Burkina Faso, Cameroon, Central African Republic, Congo (Republic of),
Eritrea, Gambia, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, Maldives, Mali,
Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, South
Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia.

4. RETENTIONIST:

Countries and territories that retain the death penalty for ordinary crimes:
Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize,
Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt,
Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica,
Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea,
Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and
the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand,
Trinidad And Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen,
Zimbabwe.

DEBATE OVER ITS ABOLITION AND RETENTION:

“An eye for an eye will make the whole world blind.”

---Mahatma Gandhi
UNITED NATIONS’ VIEW:

The United Nations High Commissioner for Human Rights called a meeting in early July to
commemorate the fifth anniversary of the General Assembly’s vote in favor of a moratorium on the
death penalty. The Secretary-General, Ban Ki-moon, delivered some remarks in which he reminded
listeners that more than 150 countries have either abolished Death penalty or restricted its
application. Some 32 states retain the death penalty in case of drug-related crimes and last year only
20 countries actually conducted executions. In the United States, 17 states have done away with the
death penalty.

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The right to life is the most fundamental of all human rights. It lies at the heart of international
human rights law. The taking of life is too absolute, too irreversible, for one human being to inflict
it on another, even when backed by legal process. Where the death penalty persists conditions for
those awaiting execution are often horrifying, leading to aggravated suffering. Information
concerning the application of the death penalty, including secret trials and executions, is often
cloaked in secrecy. And it is beyond dispute that innocent people are still put to death.
The United Nations system has long advocated abolition of the death penalty. Yet the death penalty
is still used for a wide range of crimes that do not meet that threshold.

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ARGUMENTS FOR THE RETENTION11:

1. Death penalty acts as a deterrent: If the death sentence is removed, the feat that comes in the
mind of people committing murders will be removed. “Do we want more of murders in our country
or do we want less of them?” All sentences are awarded for security and protection of society, so
that every individual may live in peace. Death penalty is needed to ensure this security.
2. Elimination of the criminals: When the public peace is endangered by certain particularly
dangerous forms of crime, death penalty is the only means of eliminating the offender.
3. Possibility of repeated murders: Society must be protected from the risk of a second offence by
a criminal who is not executed and who may be released, after release may commit murder again.
4. Condition in India: In countries where Death penalty has been abolished, the figure of homicide
is very low; four in a million, or even less than that.
5. Public opinion: Public opinion is substantially in favor of Death penalty, and it would be unwise
to abolish Death penalty contrary to the wishes of the majority of the citizens.
6. Prison administration: Keeping murderers alive in the prison greatly complicates the work of
prison administration. If all convicted murderers were imprisoned, safety of the prison staff and the
general public from the dangerous prisoners would be at risk.
7. Saving of funds: Money of the citizens should not be spent on maintaining people who cause
great harm.The taxpayers should not be called upon to pay for the maintenance of anti-social
criminals for an indefinite or for a very long period.
8. Proportionate to crime: The punishment should bear a just proportion to the crime. Therefore,
Death penalty is the only fit punishment for those who have deliberately violated the sanctity of
human life.
9. More humane: Death penalty in a painless and humane form is less cruel than imprisonment
for life.
10. 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 would be there to protect the
life of a person who is really innocent.

11 Law Commission of India, 35th Report Volume I-III (Death penalty) September
1967,Ministry of Law, Government of India

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ARGUMENTS FOR THE ABOLITION12:

1. Death penalty should be abolished because it is a legalized, revengeful and cruel destruction of
God’s most wonderful creation, the human being.

2. Immoral:. Death penalty is morally indefensible. Society has no right to take the life of any
person. It is morally wrong for the State in the name of the law to take the life deliberately. In
eliminating the criminals, it is stated; the State does not erase the crime, but repeats it.

3. Inhuman: Death penalty is essentially inhuman. Death penalty is a form of cruelty and
inhumanity unworthy of a humane civilization; even the most efficient methods of execution do not
result in instantaneous and painless death. Humanity demands that Death penalty comes to an end.

4. Non-violence: Indian ideology is based on non-violence. Indian tradition is based on

reformation of the mind and spirit. Where it was the opinion that only God could take away life
given by him. Therefore a murderer should be sent to a penitentiary and there given every chance of
reforming himself.
5. Irrevocable: Death penalty is irrevocable. If an innocent person is sentenced to death and
executed, the greatest injustice results. When as a result of an erroneous conviction, a man is sent to
prison, he can be compensated. But death admits of no compensation.

6. Unjust: The sentence of death injures the family of the offenders, and thus imposes suffering on
persons who have done nothing to deserve the suffering.

7. Unequal application: Death penalty is applied unequally. Some persons who have not
sufficient financial means to defend themselves or are morally unable to do so, suffer.[31] The
penalty, therefore, which should be the expression of absolute justice, often leads in practice to
injustices against individuals.

8. An eye for an eye: It will suffice to note that the system of individual revenge is no longer
recognized. The punishment should not be given to any offender having this principle in the mind.

12 Law Commission of India, 35th Report Volume I-III (Death penalty) September
1967,Ministry of Law, Government of India

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The court should adopt the retributive approach in these cases.
CONSTITUTIONAL VALIDITY OF DEATH PENALTY:

Article 21 of the Constitution of India provides Protection of life and personal liberty to every
people. And the deprivation of life of anyone is unconstitutional under Article 21. It also said that
No person shall be deprived of his life or personal liberty except according to procedure established
by law, it means, if there is a procedure then state can deprive a person from his life.

In many countries there has been a demand for abolition of the death penalty and in some this
demand has been accepted and death penalty has been abolished. In India, too there are many social
workers including lawyers and judges who have voiced this demand. Prominent amongst them are
Bhagwati J. and Krishna Iyer J. both former judges of the Supreme Court, Krishna Iyer J. very
recently while addressing a Human Rights organization strongly expressed himself in favor of the
abolition of death penalty.

Justice A.K. Ganguly of the Supreme Court has termed the award of death sentence as "barbaric,
anti-life, undemocratic and irresponsible" which is "legal" in the prevailing judicial system. The
doctrine of the crime falling in the 'rarest of rare' category in awarding the death penalty was a
"grey" area as its interpretation depended on individual judges. He cautioned that before giving
death penalty, a judge must be "extremely careful" and weigh "mitigating and aggravating
circumstances13".

So far as constitutionality is concerned it has to be considered in the light of the provision of the
Constitution of India. In India, through Article 21, the State is given the power to take away the life
of a person through a procedure established by law. This means that through there is a procedure
established by law, state can deprive a person of his life. Through judicial pronouncements, this
procedure is interpreted to mean, a fair, just and reasonable one. Though the constitutional validity
of the death punishment was challenged as violative of Article 19 and 21 of the Constitution of
India, because it didn’t provide any procedure to the Court upheld the validity of death sentence.
Since the procedure by which the life is taken is fair, just and reasonable. The judges are given
ample power to exercise their discretion to award death penalty as against imprisonment for life.

13 http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-sc-
judge-the-rarest-of-rare-category

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The question of constitutional validity of death penalty has been raised before the Supreme Court of
India more than once. In case of Jagmohan Singh v. State of Uttar Pradesh14, the constitutional
validity of death penalty was upheld by the Supreme Court by a unanimous decision of the five
judges composing the Bench.

In case of Rajendra Prasad v. State of Uttar Pradesh15, Krishan Iyer J. said that death penalty
directly affects the life of the people guaranteed under Article 21 of the Constitution. But it has been
provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He further
said that to impose death penalty the two things must be required:

 The special reasons should be recorded for imposing death penalty in a case.
 The death penalty must be imposed only in extraordinary circumstances.

The question was again considered by a five judges Bench in case of Bachan Singh V. State of
Punjab16, particularly in view of certain observations of Krishan Iyer J. In Bachan Singh case
judges considered the social, ethical and even spiritual aspect of death penalty while upholding the
constitutional validity thereof.

But by a majority of four to one, Bhagwati J. in Bachan Singh case recorded a dissenting note.
Bhagwati, J. in his dissenting judgment has given a number of reasons for holding that death
penalty is not only unconstitutional being violative of articles 14 and 21 but also undesirable from
several points of view". One of the reasons given by him is that death penalty is irrevocable because
the execution of the sentence of death in such a case makes miscarriage of justice irrevocable.

He referred to the Book Death Penalty in America by Hugo A. Bedau which catalogues 74 cases in
which it has been responsibly charged and in most of them proved beyond doubt that persons were
wrongly convicted and executed though innocent. It is no doubt true that conviction and execution
of an innocent man for murder shocks the human conscience and it is also true that human judgment
is not infallible but I may respectfully point out that the criminal law in our country is heavily
loaded in favor of the accused and an erroneous conviction is not at all possible. In England and
America the trial is by jury and it may with utmost honesty more readily record an erroneous
verdict of guilty than a judge. A jury is very much influenced by the consideration that the interests

14 AIR 1973 SC 947

15 AIR 1979 SC 916
16 AIR 1980 SC 898

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of the society demand that no offender who perpetrates a shocking crime should escape the clutches
of law and the punishment he deserves. A judge's approach in our country is more cautious. He is
guided by the principle that hundred guilty persons may escape but not one innocent person should
be convicted.

PRINCIPLE OF RAREST OF RARE:

Now, the judiciary has evolved its own jurisprudence in evaluating which cases are to be considered
as fit ones for awarding Death penalty. Thus Death penalty is awarded only in rarest of rare cases.
The determination of this is very difficult. There are various decisions in which the determination of
rarest of the rare was in question. The Court could not follow any uniform guideline to reach a
conclusion, and the subjectivity of the judges also play a vital role in this determination. The death
sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Singh v
State of Punjab (1983) apex court laid down a few principles which were to be kept in mind while
deciding the question of sentence:

Ø Is there something uncommon about the crime which renders sentence of imprisonment for life
inadequate and calls for a death sentence?

Ø 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
favor of the offenders?"

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RECENT RAREST OF RARE CASES OF DEATH PENALTY:

Dhananjoy Chatterjee v. State of West Bengal & Ors22. The appellant, Dhananjoy Chatterjee was
found guilty of offences punishable under Sections 376, 302 and 380 of the Indian Penal Code by
judgment and was awarded death sentence by the session judge, confirmed by the High Court. A
special leave petition was filed by the appellant. Leave was granted but the appeal was dismissed by
the Supreme Court.

Sushil Murmu v. State of Jharkhand23, A young child of 9 years was sacrificed before Goddess
Kali by the appellant for his own prosperity is what the prosecution alleges. The Supreme Court
awarded death penalty to the accused.

Ajmal Kasab case25, on 3 May 2010, Mumbai Special Court convicted Ajmal Kasab for 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. 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.
And on 29 August 2012 his death sentence was upheld by the Supreme Court also.

On October 5, 2012, Additional Sessions Judge Ramesh Kumar Singhal of Delhi Court handed
down the death sentence to the five persons, who had mercilessly tortured and electrocuted the girl
and her lover as they were opposed to her plan of getting married to the boy belonging to a
Scheduled Caste26.

22 [2004] 9 SCC 759

23 AIR 2004 SC 394
25 AIR 2004 SC 394
26 http://indiatoday.intoday.in/story/delhi-court-sentences-five-of-a-family-to-death-for-honour-killing/1/223521.html

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Conclusion

In the wake of above discussion and ground realities of present day world following conclusions
can be drawn:
The opposition to abolition of the death penalty stems from the myth that it will lead an increase in
the number of murders. The fact is that in the state of Travancore there were 162 murders between
1946 and 1950 when the death penalty was not in force, But in the five years from 1950 when it
was re-imposed. There were 967 murderers. It has been argued that it is not possible to fight such
crimes by framing law. What we need is to target the root of crime.
Even Krishna Iyer J. conceded in Rajendra Prashad’s case that death penalty may be awarded where
the killer is such a monster or a beast that he can never be reformed. Criminals, who can be hired to
kill anyone or to throw a bomb in a crowd killing many innocent men, women and children, deserve
no sympathy. We cannot ignore the interests of the community or the country while considering
whether death sentence would be appropriate in a particular case. So far as juveniles are concerned
they have to be dealt with under the appropriate Acts for juvenile offenders and there is no question
of awarding death sentence in their case.; Thus, after taking into consideration the interests of the
individuals on the one hand and interests of the community on the other, it would be highly
imprudent to abolish the death penalty.

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REFERENCES

BOOKS REFERRED
1. Mr. Gaur K.D, Indian penal code, fourth edition 2009, pg no. 492.
2. Law Commission of India, 35th Report Volume I-III (Death penalty) September
1967,Ministry of Law, Government of India.
3. “Bring Back the Death Penalty,” U.S. News & World Report (April 1976); reprinted in The
Death Penalty, ed. Irwin Isenberg (New York: H.W. Wilson, 1977), 133

WEBSITES REFERRED
1. http://oxforddictionaries.com/definition/english/capital%2Bpunishment.
2. http://www.legal-explanations.com/definitions/capital-punishment.htm
3. http://www.localhistories.org/capital.html
4. http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html
5. http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-sc-
judge-the-rarest-of-rare-category
6. http://indiatoday.intoday.in/story/delhi-court-sentences-five-of-a-family-to-death-for-honour-
killing/1/223521.html

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