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1 | P a g e Criminology

CCRRIIMMIINNOOLLOOGGYY Death Penalty

SUBMITTED TO:

Proffessor sir DEBOJEET

SUBMITTED BY:

BA.LLB Hons)4th Sem.Faculty of Law,

Jamia Millia Islamia.

ACKNOWLEDGEMENT


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It gives me a great pleasure to present this project onCRIMINOLOGYstrictly

in manner under the guidance of our learned Professor,

I have made sincere efforts to make the assignment more meaningful,

complete, compact and comprehensive. Its a great pleas ure to bring my feeling

into notice and practice .At last I give him special regards for the valuable

suggestions and efforts without which this assignment could not have been

completed.

With Regards,


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INDEX1.Introduction

2.Crime and Punishment

3. Death penalty

History

Rarest of the rarest case

Legality of Death Sentence

Reasonableness of Death Sentence

Whether death Penalty serves any penological purpose?

When can Death Sentence be granted

Judicial Discretion

Need For Guidelines

Death Sentence For The Offence Of Rape Mitigating Circumstances

Conviction of a minor

Conviction Of A Pregnant woman

Lesser Sentence To Co- Accused

Delay in execution of the death sentence

Reasons the death penalty should be abolished

Arguments for and Against the Death Penalty


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INTRODUCTION:

Each society has its own way of social control for which it frames certain laws andalso mentions the sanctions with them. These sanctions are nothing but the punishments. The

first thing to mention in relation to the definition of punishment is the ineffectiveness of

definitional barriers aimed to show that one or other of the proposed justifications of

punishments either logically include or logically excluded by definition.

Punishment has the following features :

1)

I t involves the depri vation of cer tain nor mall y recognized ri ghts, or other measur esconsidered un pleasant.

2) I t i s consequence of an offence.

3) I t is appli ed again st the author of the cr ime.

4) I t i s appli ed by an or gan of the system that made the act an offence.

The kinds of punishment given are surely influenced by the kind of society one lives

in. Though during ancient period, punishment was more severe as fear was taken as the prime

instrument in preventing crime. But with change in time and development of human mind the

punishment theories have become more tolerant to these criminals. Debunking the stringent

theories of punishment the modern society is seen in loosening its hold on the criminals. The

present scenario also witnesses the opposition of capital punishment as inhumane, though it

was a major form of punishing the criminals earlier. But it may also be observed till recentlythe TALIBANS used quite a harsh method for suppression. The law says that it does not

really punish the individual but punishes the guilty mind.

As punishment generally is provided in Criminal Law it becomes imperative on our part to

know what crime or an offence really is. Here the researcher would like to quote Salmonds

defi niti on of cri me , which says, Crime is an act deemed by law to be harmful for the society

as a whole though its immediate victim may be an individual. He further substantiates his

point of view through the following illustration a murderer injures primarily a particular


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victim, but its blatant disregard of human life puts it beyond a matter of mere compensation

between the murderer and the victims family.

Thus it becomes very important on behalf of the society to punish the offenders. Punishment

can be used as a method of reducing the incidence of criminal behavior either by deterring the

potential offenders or by incapacitating and preventing them from repeating the offence or by

reforming them into law-abiding citizens. Theories of punishment contain generally policies

regarding theories of punishment namely: Deterrent, Retributive, Preventive and

Reformative. Punishment, whether legal or divine, needs justification. Many a time this

punishment has been termed as a mode of social protection. The affinity of punishment with

many other measures involving deprivation by the state morally recognized rights is generally

evident. The justifiability of these measures in particular cases may well be controversial, but

it is hardly under fire. The attempt to give punishment the same justification for punishment

as for other compulsory measures imposed by the state does not necessarily involve a

particular standpoint on the issues of deterrence, reform or physical incapacitation. Obviously

the justification in terms of protection commits us to holding that punishment may be

effective in preventing social harms through one of these methods.

As punishments generally punish the guilty mind it becomes very important to clarify as to

what crime really is. But it is quite difficult to say whether or not there must be any place for

the traditional forms of punishment. In todays world the major question that is raised by

most of the penologist is that how far are present humane methods of punishment like the

reformative successful in their objective. It is observed that prisons have become a place for

breeding criminals not as a place of reformation as it was meant to be.


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Crime and Punishment :

Crime is behavior or action that i s puni shable by cri minal law. A cr ime is a publi c, as

opposed to a mor al, wr ong; i t i s an of fence committed against (and hence punishable by)

the state or th e communi ty at large. M any crimes are immor al, but not all actions

considered immoral are il legal.

One can surely observe how closely crime and punishment are related. In different legal

systems the forms of punishment may be different but it may be observed that all arise out of

some action or omission. All these constitute all moral as well as legal wrongs such as

murder, rape, littering, theft, trespass and many more. As crime is quite different in different

geographical area it is quite evident that the forms of punishment would vary as it was

mentioned earlier that punishment as well as crime are socially determined. A type of action

may be a crime in one society but not in another. For example euthanasia is an offence in

India, but in many European countries such as Holland it is legalized. But there are certain

offences which are recognized almost universally like murder.

Durkheim explains crime, as crime exists in every society which do and do not have laws,

courts and the police. He asserts that all societies have crime, since all societies involve a

differentiation between two kinds of actions, those that are allowed and those that are

forbidden. He calls the latter type criminal.

Law is the string that binds society, and he who attempts to break the string is a danger to the

society as a whole and dealt with sternly by the powerful arms of law. Punishment though

most times confused with imprisonment is something much different from it. Punishment

though most times confused only with sanctions may also be of moral nature like ostracism.

A complete definition will now be made in such a way as to include both legal and divine

punishment. A. F lew first suggests that punishment must be an evil, an unpleasantness to the

victim . J. Mabbot objects to the use of the word 'evil' in connection with punishment. He

maintains that 'evil' carries too much moral flavor and also that it suggests positive suffering.

M abbot states: The world is a worse place the more evil there is in it and perhaps the more

suffering. But it does not seem to me necessarily a worse place whenever men are deprived of

something they would like to retain; and this is the essence of modern punishment. While


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deprivation may be a more appropriate description of modern punishment this does not

necessarily exempt it from being an evil. Nor does the suggestion that 'evil' carries a moral

flavor, for in fact the word punishment itself carries a moral flavor. (Like 'evil', punishment is

not in itself a moral term but it is suggested that it usually occurs in an ethical context.)

While we must eventually come to some conclusion as to whether punishment is an evil, it

would be preferable at present to use, as does W. Moberly, the slightly more neutral term 'ill'.

Both of these thinkers of punishment believe that the offender must be answerable for any

wrong that he has done. K. Baier explains punishment as law-making, penalization, finding

guilty, pronouncing a sentence. In a legal context law-making is a necessary condition, but it

is possible to commit a wrongdoing intentionally although no law has been made, in fact it is

because certain acts are considered wrong that laws are made in the first place. What is

important to note is that punishment is a conditional act and cannot be isolated from its total

context.

But Durkheim has a different approach to punishment altogether. He treats punishment as the

reaction of the society against a crime. According to him as if punishment be a proportionate

response to the harm caused to the society then the extent of the punishment inflicted must be

clearly sorted out. He also stressed on the point that punishment can never be calculated; it is

an intensely emotional- sense of outrage- the desire to exact punishment. He says, it is not the

specific nature or result of the offending action as such which matter, but the fact that the

action transgresses widely shared ad strongly held sentiments, whatever these might be in any

particular case . He explains that if punishment is a reaction of the society against the

offenders then it is generally in the form of an outrage or anger being reparative or

reformative becomes punitive. This approach of the society towards the criminals is what

makes us treat them as outcasts and treated as a deviant from the social norms. This two-fold

approach has been criticized severely by various penologists, as at one time there is the use of

both reformative and retributive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the acts done are

within the course of the provisions provided under the Code then any benefits take out of it is

not questioned. But any action through which maybe the same benefit is gained still the

person may be punished as because his action was not within the scope of the provisions.

Also there are certain elements in the society who though do many immoral acts but as


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because any provisions or sanctions are not mentioned so that they can be punished they

continue to do those act. One should not earn any benefits or satisfaction out of such acts.

The legitimacy of any form of has always been criticized. Though there are many legal

coercive measures but it is quite different from punishment. If the punishment were any

retribution to an evil done then regardless of any consequence it would try to end that evil in

itself. But if the objective of the punishment given is to prevent the crime from further

occurrence then it would rather than using coercive methods it would be using persuasive

measures and discourage the offender from committing that act in the future. Treating

punishment as a conventional device for the expression of resentment, indignation,

disappointment felt either by the sufferer and his family or the punishing authority as such

J.Feinberg argues that certain kinds of severe treatment become symbolic of the of the

attitudes and judgment of the society or community in the face of the wrongdoing, and

constitute a stigma which castes shame and ignominy on the individual on whom the

punishment is applied. The distinctiveness of the unpleasant measure could consist of the way

of executing them.


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The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in

"the rarest of rare cases ."

Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or

insane person, waging war against the nation, and abetting mutiny by a member of the

armed forces .

Since 1989 , the death penalty has also been legal for a second offense of "large scale

narcotics trafficking ". In recent years the death penalty has been imposed under new anti-

terrorism legislation for people convicted of terr ori st activiti es. Recently the Indian SupremeCourt in Swamy Shar addananda v. State of Kar nataka 1 made imposing the death penalty

even harder. The judgement holds that the rarest of the rare test prescribed in

Bachchan Singhs case was diluted i n the Machchi Singh case. The judgement then goes

on to say that the rarest of the rare must be measured not only in qualitative but also in

quantitative terms.

India's top court has recommend the death penalty be extended to those found guilty of

committing so-called "honour killings " with the Supreme Court stating that honour killings

fall within the "rarest of the rare" category and deserves to be a capital crime.

1 2007 SC 649


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HISTORY

Official government statistics claim that only 52 people had been executed since

in dependence, but th e People's Uni on f or Ci vil L iberti es cited inf ormation has suggested

that the total nu mber of executions since independence may be as hi gh as 3,000 to 4,300 .

About 29 mercy petitions are pending before the president, some of them from 1992. These

include that of three assassins of Rajiv Gandhi (in a bombing which caused 14 other deaths),

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

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. Many more are on death row after having been

sentenced to die by lower courts, but on appeal most of them are likely to be commuted to

life imprisonment by the State High Courts or the Supreme Court of India. that due to the

absence of sentencing guidelines in what constitutes "rarest of the rare ", in some less

gruesome murders, the lower courts have awarded death sentences possibly due to poor

defence presented by the lawyers of the economically backward.

The death penalty i s carr ied out by hangin g. After a 1983 chal lenge to thi s method, the

Supreme Court r ul ed that hanging did not involve tortur e, barbari ty, humil iation, or,

degradation. Mohammad Afzal (Afzal Guru ) was convicted of conspiracy in connection with
http://en.wikipedia.org/wiki/Veerappanhttp://en.wikipedia.org/wiki/Veerappan


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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 lar ge."

Afzal was scheduled to be executed on October 20, 2006, but the sentence was stayed. The

Afzal case remains a volatile political issue.

On May 3, 2010, Ajmal K asab was found guilty of numerous charges and was sentenced to

death on 4 counts. On Thu, May 6 02:18 PM a Mumbai Special Court, which conducted the

trial of 26/11 terror strikes, announced the death penalty for Ajmal Amir Kasab, the lone

surviving terrorist. The sentencing by Judge M L Tahiliyani makes Kasab the 52nd person on

death row in India. Kasab was handed capital punishment for killing 72 people and waging

war against the state.

In its recent judgment in M ul la Vs. State of U P , the Supreme Court has continued with the

trend of emphasising the extremely limited scope of the rarest of rare doctrine first

formulated in Bachan Singh. Justice Sinha's contr ibution to th e death penalty debate,

where he repeatedly emphasised the fun damental precondi tion in Bachan Sin gh---that

rarest of r are case wil l be one where 'the alternati ve option [ of l if e impri sonment] i s

un questionably foreclosed.' We have also previously looked at his landmark judgment in

Santosh Bariyar in some detail. Justice Sathasivam's judgment in Mulla seems to be informed

by a similar spirit. A few extracts from the judgment follow:

The following propositions emerge from Bachan Singh case

1. Punishment of death need not be inflicted except in gravest cases of extreme

culpability.

2. Before opting for the death penalty the circumstances of the `offender' also require

to be taken into consideration along with the circumstances of the `crime'.3. Life imprisonment is the rule and death sentence is an exception.In other words

death sentence must be imposed only when life imprisonment appears to be

an altogether inadequate punishment having regard to the relevant

circumstances of the crime, and provided, and only provided, the option to impose

sentence of imprisonment for life cannot be conscientiously exercised having

regard to the nature and circumstances of the crime and all the relevant

circumstance.
http://en.wikipedia.org/wiki/Ajmal_Kasabhttp://en.wikipedia.org/wiki/Ajmal_Kasabhttp://en.wikipedia.org/wiki/Ajmal_Kasabhttp://en.wikipedia.org/wiki/Ajmal_Kasab


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4. 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 weightage

and a just balance has to be struck between the aggravating and the mitigating

circumstances before the option is exercised.

This Court in Bachhan Singh ' s v. State of Pun jab (supra) has held that:"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." Therefore, it i s open f or th e court to grant a death

penal ty in an extremely nar row set of cases, which i s sign if ied by the phrase r arest of the

rare'. This rarest of the rare test relates to " special reasons" under Section 354(3).

Importantly, as the Court held, thi s route is open to the Cour t onl y when th ere is no other

punishment whi ch may be altern atively given . This results in the death penalty being an

exception in sentencing, especially in the case where some other punishment can suffice. It

was in this context that the Court had noted: " The expression " special r easons" in the

context of thi s provision, obviously means " exceptional r easons" founded on the

exceptionall y grave cir cumstances of the parti cular case relati ng to th e cr ime as well as the

criminal"

Rarest of rare cases

To decide whether a case falls under the category of rarest of rare case or not was completely

left upon the court's discretion. However the apex court laid down a few principles which

were to be kept in mind while deciding the question of sentence. One of the very important

principles is regarding aggravating and mitigating circumstances. It has been the view of the

court that while deciding the question of sentence, a balance sheet of aggravating and

mitigating circumstances in that particular case has to be drawn. F ul l weightage should be

given to the mitigating cir cumstances and even af ter that i f th e court feels that justice wil l

not be done i f an y punishment l ess than the death sentence is awarded, then and then on ly

death sentence should be imposed.

The principles laid down by the apex court in M achhi sin gh v. State of Pun jab were

reiterated in it's latest judgment in Sushil M ur mu Vs. State of Jharkh and :" I n rarest of rar e

cases, when th e coll ective conscience of the communi ty is so shocked that i t wi ll expect the


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hol ders of the ju dicial power center to infl ict death penal ty ir respective of their personal

opinion as regards desir abil ity or otherwise of retain in g death penalty, death sentence can

be awarded. The SC has also discussed such circumstance in various cases. These

circumstances include:

1. Murder committed in an extremely brutal, grotesque, diabolical , revolting or

dastardly manner so as to arouse intense and extreme indignation of the community.

2. Murder for a motive which evinces total depravity and meanness.

3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrath

4. Bride burning/ Dowry death.

5. Murderer in a dominating position, position of trust or in course of betrayal of the

motherland.

6. Where it is enormous in proportion.

7. Victim- innocent child, helpless woman, old/infirm person, public figure generally

loved and respected by the community.

If upon taking an overall view of all the circumstances and taking in to account the answers

to the question posed by way of the test of rarest of rare cases, the circumstances of the case

is such that death penalty is warranted, the court would proceed to do so.

Another factor which unfortunately has been left out in much judicial decision-making in

sentencing is the socio-economic factors leading to crime. We at no stage suggest that

economic depravity justify moral depravity, but we certainly recognize that in the real world,

such factors may lead a person to crime. The 48th report of the Law Commission also

reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt,

but they may amount to mitigating circumstances. Socio-economic factors lead us to another

related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to

note that a criminal who commits crimes due to his economic backwardness is most likely to

reform. This court on many previous occasions has held that this ability to reform amount to

a mitigating factor in cases of death penalty.


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Reasonableness of Death Sentence

The SC in the case of Bachan Sin gh Vs. State of Punj ab observed-

".......if not withstanding the view of the abolitionists to the contrary , a very large segment of people, the world over, including sociologists , legislature , Jurists , judges and administrators

still firmly believe in the worth and necessity of capital punishment for the protection of

society, if in the perspective of prevailing crime conditions in India, contemporary public

opinion canalized through the peoples representatives in parliament, has repeatedly including

the one made recently to abolish or specifically restrict the area of death penalty, if death

penalty is still a recognized legal sanction for murder or some types of murder in most of the

civilized countries in the world , if the farmers of the Indian constitution were fully aware of

the existence of death penalty as punishment for murder, under the Indian Penal Code, if the

35th report and subsequent reports of law commission suggesting retention of death penalty,

and recommending revision of the Cr.P.C. and the insertion of the new sections 235 (2) and

354 (3) were before the Parliament when it took up revision of the Cr.P.C ., i t i s not possible

to held that the provision of death penalty as an al ternati ve punishment for mur der , in sec.

302, Penal Code is un reasonable and not i n th e publ ic i nterest. The impugned provision in

Sec. 302 , violates neither the letter nor the ethos of A rti cle 19" . [ Para 132]

Whether death Penalty serves any penological purpose?

The SC in the case of Bachan Singh v. State of Pun jab considered a no. of opinions from all

over the world. Out of them, the opinion of Sir James Fitziames Stephen, the great Jurist, who

was concerned with the drafting of I.P.C. is very important to mention-

" No other puni shment deters man so eff ectuall y fr om commi tting cri mes as the

punishment of death . This is one of those propositions which is difficult to prove simply

because they are in themselves more obvious than any proof can make them. In any

secondary punishment, however terrible, there is hope, but death is death, it's terrors cannot

be described more forcibly . " Th ese views are ver y strong answers to the people who oppose

death puni shment wi th the arguments that i t does not serve penol ogical pur pose .

When can Death Sentence be granted ?


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As have 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 r eal and abidi ng concern for the digni ty of human

li fe postul ates r esistance to taking a li fe thr ough l aw's in strumentali ty. That ought to be

done save in the rarest of rare cases when the alternative option is unquestionably

for eclosed.."

Judicial Discretion

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 sections, by virtue of their

very wordings itself, provide for a discretion which is to be vested in the courts to decide

the quantum of punishment. So the ultimate judicial discretion to decide whether death

sentence is to be imposed or not , have been vested in courts right from the inception of

Penal Code in 1860. However the manner of exercising this discretion has undergone

various changes with the changing time and evolution of new principles. There is also adebate going on, about the extent of this judicial discretion.

Wide discretion

In Jagmohan ' s Case the SC held :-

" The stru cture of our cr imi nal l aw which is pri ncipall y contained in the I PC and the

CR.P.C. under takes the poli cy that when the legislatu res have defi ned an offence wi th

clar i ty and prescri bed the maximum punishment, therefore a wide discretion i n the matter

of f ixi ng the degree of pun ishment shoul d be all owed to judges."

Thus the SC was in favour of wide discretion to be given to judges for deciding the degree of

punishment.However, this vide direction was restricted by section 354(3) of Cr.P.C. 1973

which laid down the law that for death sentence special reasons are to be recorded , meaning

thereby , that death sentence is to be imposed in special cases only.

In a case the court observed :


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" The discretion to impose the sentence of death or l if e impri sonment is not so vide after all

section 354 (3) has narr owed the discretion . Death sentence is ordi nar il y ru led out and

can onl y be imposed for special reasons Judges are left with the task of discover ing '

Special r easons' .

In the case of Dalbi r Sin gh v. State of Pun jab the court expressing its concern for the way in

which this discretion was being used . " Notwithstanding the catalogue of grounds warranting

death sentence as an exceptional measure, 'life' being the rule , the judicial decisions have

been differing (and dithering) at various levels with the result the need for a through re-

examination has been forced on courts by counsel on both sides" . .

In Bachan Singh's case this problem was solved by the apex court itself to a very large extent.The court observed: " I t is imperative to voice the concern th at cour ts, aided by the broad

il lu str ative guideli nes in dicated by us, wil l di scharge the onerous fun ction wi th evermore

scrupulous care and humane concern, dir ected along wi th high r oad of legislative poli cy

outl ined in Sec. 354(3)....."

Need For Guidelines

A brief analysis of the cases decided by the SC. Regarding the question of death sentence

over last 25 years will reveal how differing/dithering the judgments have been.

In Kur ami ali as M utha v. State of Tamil Nadu , the accused was a poor agriculturist

and had a wife and five children to support, but considering the murder of two persons

as brutal the death sentence was confirmed but this case was before Bachan Singh's

case, and till that time the principle of aggravating and initiating circumstances was

not laid down. While, in a brutal and dear case of bride burning the S.C. observed:

"From the judgment of the High Court, it is apparent that death sentence is awarded

more out of anger than on reasons.... Judicial discretion should not be allowed to be

swayed by emotion and indignation. Ultimately the death sentence was commuted to

life imprisonment." In 1994, while deciding the case of An shad v. State of Karn ataka , the SC Commuted

death sentence to life imprisonment while the accused was convict of a brutal,diabolical murder. The sentence was commuted because the SC felt that there are


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chances of reformation of accused. With due respect to the court's view, it is

submitted that there still remains a question creating doubts on such judgments as to

how to judge the chances of reformation of an accused in a particular case. However,

it can be done on the line of SC's judgment inJaved Ah med Abdul H amid passawa v.

State of M aharastra on this case. The death sentence of accused was affirmed in

1983, but later, on the basis of serious atonement, the SC commuted the sentence to

life imprisonment. Then comes the very important case of M ohd. Chaman v. State (N.C.T.) of D elhi . In

this case a one and hal f year ol d gir l was raped by the accused, and because of the

henious act, she sustained serious injuries and died . H.C. confirmed the death

sentence awarded by the sessions Court. But the H on' ble SC commuted the death

sentence into l if e impri sonment , observing :- "The crime committed is undoubtedly

serious and heinous and the conduct of the appellant is reprehensible . It reveals a

dirty and prevented mind of a human being who has no control own his carnal

desires.... We are not persuaded to accept that the case can be called one of the ' rarest

of rare cases' deserving death penalty. We fi nd it di ff icul t to hold that the appell ant is

such a dangerous person that to spare his l if e wil l endanger the communi ty. I t is

our considered view that th e case is one in whi ch a humanist approach should be

taken in the matter of awarding pun ishment " on the question of extent of judicial

discretion, the court observed :

"Such standardization is well nigh impossible. Firstly degree of culpability cannot be

measured in any case. Secondly criminal cases cannot be categorized there being infinite ,

unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing

procedure will cease to be judicial. And fourthly , such standardization or sentencing

discretion is policy matter belonging to the legislature beyond the courts functions" .

Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be

said that such wide discretion has resulted into enormously varying judgments, which does

not portray a good picture of the justice delivery system. What is needed to be done; therefore

; is to revise and review the guidelines and principles laid down in cases like Bachan Singh or

Machhi Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the

present social scenario, then these guidelines have to be strictly complied with, so that the

persons convicted for offence of similar nature are awarded punishments of identical degree.


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The Indian Supreme Court had another opportunity to rectify its position, when the case of

V. Mohini Gir i v. Union of In dia 2 was argued before it in 2002. In this case the petitioner

had sought "the issuance of a guideline as to what should be the appropriate approach in the

cases where one of the judges in the Bench of this Court while hearing an appeal againstdeath sentence, acquits the accused person". The Apex Court declined issuing such a

guideline arguing that it would curtail the judicial discretion of the bench.

Death Sentence For The Offence Of Rape

In April 2000 the Government announced it would consider imposing the death penalty forindividuals convicted of rape 3

State Of U ttar Pradesh Vs.Satish 4

Stressing that leniency in punishing grave crimes would have serious consequences the

supreme court has awarded the death penalty to a man for the rape and murder of a six year

old girl.

Lesser Sentence To Co- Accused

In cases where there are more than one accused, and murder has been committed by several

persons, under section 34 of IPC, the act done by one will be considered to be acts done by

all. So if a lesser sentence of life imprisonment is awarded to one accused, then the co-

accused should also generally be given the same sentence, unless it can be established that the

role of any one of them in the commission of the crime is more that of others.

In Wazir Sin gh v. State Of Punj ab the Supreme Court held that the distinction made in the

matter of sentence between the two accused was not justified. The death sentence of the other

accused was also reduced to the one transportation of life.

2

2002 AIR SCW 5306 3 Hindustan Times 19 April 2000 4 08.2.2005


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Delay in execution of the death sentence

Delay in execution of death sentence is a factor which may be taken into consideration for

commuting the sentence of death to life imprisonment.

In the case of Smt Tri veni ben v. State of Gujarat the Supreme Court held that "....undue

long delay in execution of the death sentence will entitle the condemned person to approach

this court will under Art 32, but this court will only examine the nature of delay caused and

circumstances ensued after sent ence was finally confirmed by the judicial process..No

fixed period of delay could be held to make the sentence of death in executable.


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Reasons why the death penalty should be abolished:

It is a complex issue and it is difficult to point to any single fact or argument as the most

important.

Executions are carried out at staggering cost to taxpayers:

It costs far more to execute a person than to keep him or her in prison for life. A recent New

Jersey Policy Perspectives report concluded that the state's death penalty has cost taxpayers

$253 million since 1983, a figure that is over and above the costs that would have beenincurred had the state utilized a sentence of life without parole instead of death. "From a

strictly financial perspective, it is hard to reach a conclusion other than this: New Jersey

taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital

punishment system that has executed no one," the report concluded. Michael Murphy, former

Morris County, NJ prosecutor, remarked: "If you were to ask me how $11 million a year

could best protect the people of New Jersey, I would tell you by giving the law enforcement

community more resources. I'm not interested in hypotheticals or abstractions, I want thetools for law enforcement to do their job, and $11 million can buy a lot of tools." There is
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no credible evidence that capital punishment deters crime:

Scientific studies have consistently failed to demonstrate that executions deter people from

committing crime anymore than long prison sentences. Moreover, states without the death

penalty have much lower murder rates. The South accounts for 80% of US executions and

has the highest regional murder rate.

Millions currently spent on the death penalty could be used to assist the families

of murder victims.

Many family members who have lost love ones to murder feel that the death penalty will not

heal their wounds nor will it end their pain; the extended process prior to executions can

prolong the agony experienced by the family. Funds now being used for the costly process of

executions could be used to help families put their lives back together through counseling,

restitution, crime victim hotlines, and other services addressing their needs.

Life Without Parole is a Sensible Alternative to the Death Penalty

In every state that retains the death penalty, jurors have the option of sentencing convicted

capital murderers to life in prison without the possibility of parole. The sentence is cheaper to

tax-payers and keeps violent offenders off the streets for good. Unlike the death penalty, a

sentence of Life Without Parole also allows mistakes to be corrected. There are currently

over 3,300 people in California who have received this alternative sentence, which also has amore limited appeals process last approximately 3 years. According to the California

Governor's Office, only seven people sentenced to life without parole have been released

since the state provided for this option in 1977, and this occurred because they were able to

prove their innocence.
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Recent cases

Dh ananj oy Chatter jee ali as Dh ana vs State of West Bengal & Ors ..

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.

Sushi l M ur mu Vs. State of Jharkh and

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 penality to the

accused.

State of U.P. Vs. Satish

Stressing that leniency in punishing grave crimes would have serious consequences the

supreme court has awarded the death penality to a man for the rape and murder of a six year

old girl.


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Arguments for and Against the Death Penalty

DETERRENCE: The death penalty prevents future murder.

Society has always used punishment to discourage would-be criminals from unlawful action.

Since society has the highest interest in preventing murder, it should use the strongest

punishment available to deter murder, and that is the death penalty. If murderers are

sentenced to death and executed, potential murderers will think twice before killing for fear

of losing their own life. For years, criminologists analyzed murder rates to see if they

fluctuated with the likelihood of convicted murderers being executed, but the results were

inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced

results showing that for every inmate who was executed, 7 lives were spared because others

were deterred from committing murder.

Similar results have been produced by disciples of Ehrlich in follow-up studies. Moreover,

even if some studies regarding deterrence are inconclusive, that is only because the death

penalty is rarely used and takes years before an execution is actually carried out. Punishments

which are swift and sure are the best deterrent. The fact that some states or countries whichdo not use the death penalty have lower murder rates than jurisdictions which do is not

evidence of the failure of deterrence. States with high murder rates would have even higher

rates if they did not use the death penalty.

Finally, the death penalty certainly "deters" the murderer who is executed. Strictly speaking,

this is a form of incapacitation, similar to the way a robber put in prison is prevented from

robbing on the streets. Vicious murderers must be killed to prevent them from murdering


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un ju st to him than an y other event f or which one knowin gly volun teers to assume the r isk.

Thus, the death penalty cannot be unjust to the guilty criminal.

REBUTTAL TO DETERRENCE:

The death penalty is not a proven deterrent to future murders.

Those who believe that deterrence justifies the execution of certain offenders bear the burden

of proving that the death penalty is a deterrent. The overwhelming conclusion from years of

deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence

of life in prison. The Ehrlich studies have been widely discredited. In fact, some

criminologists, such as William Bowers of North-eastern University, maintain that the death

penalty has the opposite effect: that is, society is brutalized by the use of the death penalty,

and this increases the likelihood of more murder. Even most supporters of the death penalty

now place little or no weight on deterrence as a serious justification for its continued use.

States in the United States that do not employ the death penalty generally have lower murder

rates than states that do. The same is true when the U.S. is compared to countries similar to

it.The U.S., with the death penalty, has a higher murder rate than the countries of Europe orCanada, which do not use the death penalty. The death penalty is not a deterrent because most

people who commit murders either do not expect to be caught or do not carefully weigh the

differences between a possible execution and life in prison before they act. Frequently,

murders are committed in moments of passion or anger, or by criminals who are substance

abusers and acted impulsively. As someone who presided over many of Texas's executions,

former Texas Attorney General Jim Mattox has remarked, "It is my own experience that

those executed in Texas were not deterred by the existence of the death penalty law. I think inmost cases you'll find that the murder was committed under severe drug and alcohol abuse."

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of

life imprisonment. A survey of the former and present presidents of the country's top

academic criminological societies found that 84% of these experts rejected the notion that

research had demonstrated any deterrent effect from the death penalty.

Once in prison, those serving life sentences often settle into a routine and are less of a threat

to commit violence than other prisoners. Moreover, most states now have a sentence of life


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without parole. Prisoners who are given this sentence will never be released. Thus, the safety

of society can be assured without using the death penalty.

RETRIBUTION

A just society requires the death penalty for the taking of a life.

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored,

society succumbs to a rule of violence. Only the taking of the murderer's life restores the balance and allows society to show convincingly that murder is an intolerable crime which

will be punished in kind.

Retribution has its basis in religious values, which have historically maintained that it is

proper to take an "eye for an eye" and a life for a life. Although the victim and the victim's

family cannot be restored to the status which preceded the murder, at least an execution

brings closure to the murderer's crime (and closure to the ordeal for the victim's family) and

ensures that the murderer will create no more victims.

For committing the most cruel and heinous crimes, the ones for which the death penalty is

applied, offenders deserve the worst punishment under our system of law, and that is the

death penalty. Any lesser punishment would undermine the value society places on protecting

lives.

Testimony in support of retribution

Louis P. Pojman, Author and Professor of Philosophy, U.S. Military Academy. Except from

"The Death Penalty [Opponents of the capital punishment often put forth the following

argument:] Perhaps the murderer deserves to die, but what authority does the state have to

execute him or her? Both the Old and New Testament says, Vengeance is mine, I will

repay, says the Lord (Prov. 25:21 and Romans 12:19). You need special authority to justify

taking the life of a human being. The objector fails to note that the New Testament passage

continues with a support of the right of the state to execute criminals in the name of God: Let


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every person be subjected to the governing authorities. For there is no authority except from

God, and those that exist have been instituted by God. Therefore he who resists what God has

appointed, and those who resist will incur judgment.... If you do wrong, be afraid, for [the

authority] does not bear the sword in vain; he is the servant of God to execute his wrath onthe wrongdoer (Romans 13: 1 -4). So, according. to the Bible, the authority to punish,

which presumably includes the death penalty, comes from God . But we need not appeal

to a religious justification for capital punishment. We can site the state's role in dispensing

justice. Just as the state has the authority (and duty) to act justly in allocating scarce

resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from

violence and crime, and in not waging unjust wars; so too does it have the authority, flowing

from its mission to promote justice and the good of its people, to punish the criminal. If the

criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will

likely deter would-be murderers, the state has a duty to execute those convicted of first-

degree murder.

REBUTTAL TO RETRIBUTION:

The death penalty is not a just response for the taking of a life.

Retribution is another word for revenge. Although our first instinct may be to inflict

immediate pain on someone who wrongs us, the standards of a mature society demand a more

measured response. The emotional impulse for revenge is not a sufficient justification for

invoking a system of capital punishment, with all its accompanying problems and risks. Our

laws and criminal justice system should lead us to higher principles that demonstrate a

complete respect for life, even the life of a murderer. Encouraging our basest motives of

revenge, which ends in another killing, extends the chain of violence. Allowing executions

sanctions killing as a form of 'pay-back.' Many victims' families denounce the use of the

death penalty. Using an execution to try to right the wrong of their loss is an affront to them

and only causes more pain. The notion of an eye for an eye, or a life for a life, is a simplistic

one which our society has never endorsed. We do not allow torturing the torturer, or raping

the rapist. Taking the life of a murderer is a similarly disproportionate punishment , and these

defendants are typically not the worst offenders but merely the ones with the fewest resources

to defend themselves


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Conclusion In India the present position regarding death sentence is quite a balanced one. But the wide

judicial discretion given to the court has resulted into enormously varying judgment, which

does not portray a good picture of the justice delivery system. What is needed to be done is

that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly

complied with, so that the person convicted for offence of similar nature are awarded

punishment of identical degree.


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Bibliography

Books Referred

Administration of Criminal Justice by Dr. N.K.Chakrabarti A Theory of Justice by John Rawls

Websites Referred

www.LegalServiceIndia.com

www .Findarticles.com

Wikipedia, the encyclopedia
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