ABSTRACT

Death Penalty also called capital punishment is the most extreme form of punishment, The
provisions relating to Capital Punishment are embodied in Indian Penal Code and
Criminal Procedure Code. Indian Penal Code is the substantive law, which
suggests 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 history of capital punishment in India shows, during
the midlevel period inflection of death penalty was commonly practiced for the
elimination of criminals. In 19th century, however the public opinion disfavored
the use of capital punishment for offences other than the heinous crimes. The
irrevocable and irreversible nature of death penalty gave rise to a number of
complications which invited public attention towards the need for abolition of this
sentence. Many Asian counties removed capital punishment but in 21st century
capital punishment plays an important role in India and it is awarded in rarest of
rare cases only.
The aims of punishment are now considered to be retribution, justice,
deterrence, information and protection and modern sentencing policy reflects a
combination of several or all these aims. The retributive element is intended to
show public revulsion to the offence and to punish the offender for his wrong
conduct. In the concept of justice as an aim of punishment growing emphasis is
laid upon it by much modern legislation but judicial opinion towards this
particular aim is varied an rehabilitation will not usually be accorded precedence
over deterrence means both that the punishment should fit the offence and also
that like offences should receive similar punishment.

Under Indian penal code death sentence may be awarded on the offenders
in the following cases only-

 Waging war against the government of India.1

 Abetting mutiny actually committed.2
 Giving or fabricating false evidence upon which an innocent person suffers
death
 Murder
 Murder by a life convict.
 Abetment of suicide of a minor or insane or intoxicated person.
  Attempt to murder by a person under sentence of imprisonment for life if
hurt is caused.
 Kidnapping for ransom
 Dacoit accompanied with murder.

Death sentence can also be awarded under special statute like POTA, Narcotics,
Drugs, and Psychotropic Substance Act.

Procedure when death penalty is imposed:-

1) In the light of circumstances of case.

2) The nature of the offence committed.
3) Absence of mitigating factor.

After assessing the above mentioned procedure the courts therein has to
give special reason as to why it has come to this conclusion u/s 354(3) CrPc.
Further, under section 366 CrPc provides that once the Ld. Session Court
awarded death sentence, it has to submit an application to the High Court for
confirmation.

India stands poised between the global trend to end the death penalty and
those nations that continue to execute. Like many of the diminishing number of
nations that still apply the death penalty, over the last two decades, India has
reduced the number of executions carried out. The Indian judiciary has ruled
that the death penalty for murder must be restricted to the "rarest of rare" cases,
but this instruction has been contradicted by the legislature increasing the
number of offences punishable by death. The death penalty is mandatory under
two of the relevant laws, including for drug-related offences. Death sentences
have been imposed on people who may have been children at the time of the
crime, and on people suffering from mental illness. There are grave concerns
about arbitrariness and discrimination in the processes that lead to people being
sentenced to death. Such factors would render India's use of the death penalty
to be in violation of international laws and standards.
 Amnesty International is urging the Government of India to declare an
immediate moratorium on executions with a view to abolishing the death
penalty. As an emerging global and regional power and a party to the
International Covenant on Civil and Political Rights and other international
human rights treaties, India has an opportunity to exercise regional leadership
and to strong signal of its determination to fully uphold human rights by
abolishing the death penalty.

In the past three decades, great strides have been made towards a world
free from executions. In 1980 only 25 countries had abolished the death penalty
for all crimes. That figure now stands at 91, with a further 11 countries having
abolished the death penalty for 'ordinary' crimes but retained it for offences such
as treason or under military law. Thirty-three countries are considered by
Amnesty International to be 'abolitionist in practice' in that they retain the death
penalty for ordinary crimes such as murder but have not executed anyone during
the past 10 years and are believed to have a policy or established practice of not
carrying out executions, meaning that a total of 135 of the world's nations have
turned their back on capital punishment in law or practice.

At the end of 2007, some 14 countries in Asia Pacific still retained the
death penalty, including China, where executions outnumber those in the rest
of the world combined. However, there is movement towards abolition in the
region. In 2006 and 2007 respectively, the Philippines and the Cook Islands
abolished the death penalty joining those 17 other Asia Pacific countries that
have abolished the death penalty for all crimes. Twenty seven countries have
now abolished the death penalty in law or in practice in the Asia Pacific region.
In South Korea and Mongo lia there have been legislative initiatives to abolish
the death penalty. There have also been increased levels of regional activism
against the death penalty by individuals and civil society groups.3

At independence in 1947, India retained the 1861 Penal Code which

provided for the death penalty for murder, requiring judges to state the reasons
if a death sentence was not imposed. During the drafting of the Indian
Constitution between 1947 and 1949, several members of the Constituent
Assembly expressed the ideal of abolishing the death penalty, but no such
provision was incorporated in the Constitution. Private members' bills to abolish
the death penalty were introduced in both houses of parliament over the next
two decades, but none of them was adopted.

The struggle for abolition of death penalty in the USA started in 1971 when
it was brought to the attention of the US Supreme Court in Mcgautha V.
California 402 US 183(1971), that virtually all states left to the unguided
discretion of judge or jury the decision whether a particular person should not
be awarded death penalty. Mc Gautha challenged his death sentence as contrary
to the 14th Amendment of the US states that “…state shall not deprive any person
of life, liberty or property, without due process of law” arguing where death was a
possible sanction, due process of law required that the decision maker’s
discretion be guided by concrete standards. However, the court rejected
Mcgautha’s 14th Amendment challenge.

In 1972, the Supreme Court of United States of America in the case of

Furman V. Georgia death penalty was declared unconstitutional by a majority of
5:4 in group of 3 cases and then the debate and discussion pertaining to
abolishment of death penalty in India started.

The rarest of the rare nature case that took place in Independent India
Nathuram V. Godse V. Crown AIR1949 East Punj. 32. The important feature of
the case is that the total period of investigation, trial and final judgment
including appeal and execution of sentence took less than 2 years. It appears
that justice can be delivered in a reasonable time, if all the stake holders (parties)
are sincere and committed to their job. It is surprising that now a days delivery
of the justice in our country has become a misnomer.

Attorney General of India V, Lachma Devi, AIR 1986 SC it is not so distant

past, then the Rajasthan High Court in 1986 keeping in the view the gravity and
heinous nature of dowry offences for the public hanging of Lachma Devi, a
mother in law, who was found guilty of causing a dowry death. However, the
death sentence was commuted to life imprisonment by the Supreme Court.

In 1973, the Supreme Court of India upheld the constitutionality of the death penalty for the first
time in the case of Jagmohan Singh v. State of U.P.10. In the same year, a new Code of Criminal Procedure
was adopted. The new Code required judges to note 'special reasons' when imposing death sentences
and required a mandatory pre-sentencing hearing to be held in the trial court. The requirement of such a
hearing was obvious, as it would assist the judge in concluding whether the facts indicated any 'special
reasons' to impose the death penalty.

This was further confirmed in the ruling of another 3 Judges bench in Rajendra Prasad V. State of
U.P.AIR 1973 SC in which majority of two judges namely Krishna Iyer and D.A. Desai, ruled that when the
trial comes to an conclusion that the accused is guilty of murder, then the court shall call the state through
the prosecutor to state whether extreme penalty is called for. Further, majority held that the focus of
determining ‘Special reasons’ was not be the crime but the criminal.

The constitutional validity of the death penalty was again challenged in Bachan Singh V. State of
Punjab, 1980 2 SCC 684 : para 161. “The first of those propositions is No. (iv)(a) which postulates, that
according to the then extant code of Criminal Procedure both the alternative sentences and the court can,
therefore, after weighing the aggravating factors and mitigating circumstances of the particular case, in
its discretion, impose either of those sentences. This postulate has now been modified by section 354(3)
which mandates the court convicting a person for an offence punishable with death or, in the alternative
with imprisonment that person unless there are “special reason” – to be recorded – for such means
“exceptional reasons” founded on the exceptionally grave circumstances of the particular case relating to
the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of section
354(3) is that on conviction for murder and other capital offences punishable in the alternative with death
under the Penal Code, the extreme penalty should be imposed only in extreme case.”

197. In Jagmohan [(1973) 1 SCC 20: 1973 SCC (Cri) 169 : (1973) 2 SCR 541], this court has held that this
sentencing discretion is to be exercised judicially on well recognized principles, after balancing all the
aggravating and mitigating circumstances of the crime. By “well recognized principles” the court obviously
meant the principles crystalised by judicial decisions illustrating as to what were regarded as aggravating
or mitigating circumstances in those cases. This legislative changes since Jagmohan [(1973) 2 SCR 541] –
as we have discussed already – do not have the effect of abrogating or nullifying those principles. The only
effect is that the application of those principles is now to be guided by the paramount beacons of legislative
policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only
in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the
circumstances, of the offences, due regard must be paid to the circumstances of the offender, also.