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Award Of Death Sentence For Heinous Crimes In India: A Critical Study

Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.[1]

Death sentence is a process where a crime so grievous has been committed that the state condemns the act by sentencing the convicted to death. It is only applied in the cases where the crime is of such a nature that it cannot be vitiated without a penalty of death. It can be defined as the lawful infliction of death as a punishment for a wrongful act. Death sentence for heinous crime means giving death sentence for those types of crime which is done in inhuman manner and which are considered as rarest of rare cases.

By comparing death sentence in India with other countries we found that in many countries it is abolished because they consider that this practice is grossly inconsistent with human rights requirements. Countries like UK, France completely abolish the death sentence. Countries like US and North korea use this punishment in extraordinary situations or a kind of heinous crime. China is the one of the most active country in giving death sentence.

In Iran and Saudi Arabia, the number of executions is also very high. Globally, of the 195 UN states 55 countries retain capital punishment, 106 countries have completely abolished it de jure for all crimes, 7 have abolished it for ordinary crimes (while maintaining it for special circumstances such as war crimes), and 28 are abolitionist in practice.

India is a country which consist a large number of crime and criminals. There are two main reason for giving punishment, firstly: the wrongdoer should suffer, and secondly: imposing punishment to the wrongdoer to discourage others from doing the offence. There are different kind of punishment in India for different offences like capital punishment[2], imprisonment, life imprisonment, imprisonment with fine, fine etc. Capital punishment is one of the important part of Indian criminal justice system.

In the year 1956, 1958 and 1962 a bill was introduced in house of parliament to abolish death sentence from India. It was passed from one of the house but was pending in other house of the parliament and was not passed. This signifies the intention of parliament on desirability of capital punishment. A few members were in the favour of abolition of death sentence but remaining members were in favour of retention of death sentence. Now recently capital punishment was incorporated in Indian Penal Code 1860, through an amendment under section 376A in 2013.

Laws related to Death Sentence:

What is Death Penalty?

The Death Penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. It is also known as the capital punishment, hand till death, death sentence etc. Death sentence is given to a person in consideration of any heinous offence committed by the person.

In India, capital punishment is awarded for murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government, and abetting mutiny by a member of the armed forces. It is also given under some anti-terror laws for those convicted for terrorist activities. The death sentence is imposed only when the court comes to the conclusion that life imprisonment is inadequate based on the facts and circumstances of the case. The Law Commission of India released a report in 2015 recommending that the country move toward abolishing the death penalty, except in terrorism cases to safeguard national security.

Currently, judges in India can impose the death penalty in the rarest of rare cases, including treason, mutiny, murder, abetment of suicide, and kidnapping for ransom. In 2013, an amendment to the law permitted death as a punishment in cases where rape was fatal or left the victim in a persistent vegetative state, as well as for certain repeat offenders.

In section 302 of Indian Penal Code punishment of murder is given.
302. Punishment for murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.[3]

What is Heinous Crime?

The word "heinous" is nowhere defined in Indian Penal Code. However, the word has been interpreted by the judges in series of judgments. Heinous crimes are those crimes that give a blow to collective conscience of society. We cannot have any strait-jacket formula to classify these crimes, but to my understanding, child rape or the cases which come under the category of "rarest of rare" are heinous crimes. These crimes tend to create extreme revulsion in the minds of people. Generally, power to exercise remission is not there for such cases.

Recently, there have been amendments in Criminal Law based on recommendations of Justice Verma Committee. It says that now crimes which are done by children we call them as juvenile crime ages is fixed the crime which is done by children of 16-18 years of age and done in inhuman manner are considered as rarest if rare cases.

A clip of six students being firced to stand naked inside the compound of an Andhra Pradesh school as punishment for turning up late for class has gone viral on the social media, spurring protests by child rights activists. The video of the incident, which occurred in Chitoor district four days ago, was shot from the window of an adjacent school.[4]

Some sections in which heinous offences can be committed:

A. The Indian Penal Code, 1860

  1. Sec. 304B-. Dowry Death
  2. Sec. 311- Punishment of thug
  3. Sec. 326A-. voluntarily causing grievous hurt by use of acid.
  4. Sec. 370-. Trafficking of person
  5. Sec. 376-. Punishment of rape
  6. Sec. 376D-. Gang rape
  7. Sec. 397-. Robbery, or dacoity with attempt to cause death or grievous hurt.
  8. Sec. 398-. Attempt to commit robbery or dacoity when armed with deadly weapon.
These are some sections where heinous crime can be committed. Heinous crime basically means crime which is done by a person in very inhuman manner like chopping the death body in peaces, committing rape by kidnapping a girl several time, burning someone alive etc are considered as heinous crime.


Constitutionality of Death penalty:

Jagmohan singh v. state of UP[5]

The five judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of death penalty held that capital punishment was not violative of Articles 14, 19 and 21 and.

In this case the validity of death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any procedure. It was contended that the procedure prescribed under Cr. P.C. was confined only to findings of guilt and not awarding death sentence. The Supreme Court held that the choice of death sentence is done in accordance with the procedure established by law. It was observed that the judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial.

Rajendra Prasad vs. State of UP [6]
Justice Krishna Iyer empathetically stressed that death penalty is violative of articles 14, 19 and 21. He further said that to impose death penalty the two things must be required:
  1. The special reason should be recorded for imposing death penalty in a case.
  2. The death penalty must be imposed only in extraordinary circumstances.

Evolution of Sentencing Policy

Capital punishment has been a subject matter of great social and judicial discussion and catechism. From whatever point of view it is examined one undisputable statement of law follows that it is neither possible nor prudent to state any universal formula which would be applicable to all the cases of criminology where capital punishment has been prescribed. It shall always depend upon the facts and circumstances of a given case.

Phase 1 (Focus on Crime)

Jagmohan Singh case laid down that discretion in the matter of sentencing is to be exercised by the judge after balancing all the aggravated and mitigating circumstances of the crime.
Phase 2 Doctrine of Rarest of rare (Shifting the focus from crime to criminal).

Bachan Singh vs. State of Punjab[7]
In which by a majority of 4 to 1 (Bhagwati J. dissenting) the five judge bench of the Supreme Court overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the public order contemplated by clauses (2) to (4) of Article 19 is different from law and order and also enunciated the principle of awarding death penalty only in the rarest of rare cases. Bhagwati J. in his dissenting judgement observed that  death penalty is not only unconstitutional being violative of Articles 14 and 21 but also undesirable from several points of view.

Guidelines of SC in this case:
  1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
  2. Before opting for the death penalty the circumstances of the offerder also requires 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 word death sentence must he imposed only life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime 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 circumstances.

  4. A balance sheet of aggravated 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.
Machhi Singh vs. State of Punjab[8]
The supreme court laid down the broad outlines of the circumstances when death sentence should be imposed. Justice Thakkar speaking for the Court held that five categories of cases may be regarded as rarest of rare cases deserving extreme penalty. They are:
  1. Manner of Commission of murder:
    When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture.
  2. Motive:
    When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.
  3. Anti-social or socially abhorrent nature of the crime:
    where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.
  4. Magnitude of the Crime:
    Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.
  5. Personality of victim of murder.

Deena vs. Union[9]

The constitutional validity of section354(5) I.P.C. 1973 was challenged on the ground that by rope as prescribed by this section was barbarous, inhuman and degrading and therefore violative of Art. 21. The court held that section 354(5) of the I.P.C., which prescribed hanging as mode of execution as fair, just and reasonable procedure within the meaning of Art- 21 and hence is constitutional.

Sher Singh vs. State of Punjab[10]

C.J. expressing the view of the three judges of The SC held that death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.

Triveniben vs. State of Gujarat[11]

The Supreme Court asserted affirmatively that the constitution does not prohibit death penalty.

Mithu vs. State of Punjab[12]

S.303 of the IPC 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 capital punishment and did not give the judiciary the power to exercise its discretion and thus result in an unfair, unjust and unreasonable procedure depriving a person of his life.

Critical Analysis:
Thus, to sum up, it is clearly evident from a study of the above cited case laws that death penalty is regarded as constitutional in India, despite several legislative attempts to abolish the death penalty in India have failed, and it is to this day prevalent in India as is evident from the recent case of Ajmal Amir Kasab, who was executed in 2012. As in the above cases it shows that death sentence is important in India. It depends upon the nature of the crime that what type of punishment should be given so that justice should be maintained.

Death sentence is compulsory for the crime which is done in inhuman manner and which is barbaric in nature and are considered as rarest of the rare cases. According to the judgements of justices and the guidelines given death penalty should be given. In all the above cases it is firstly said that death sentence infringe article 21 of The Constitution of India.

Article 21 Protection of life and personal liberty it says that:

No person shall be deprived of his life or personal liberty except as according to procedure established by law.[13]
But after the hearing of cases and giving light towards the fact and circumstances it is decided that death penalty is not unconstitutional because death sentence for heinous crime is not against morality. This creates fear in the mind of individual not to do any wrong against any person which is against humanity.

Death Rate in 2018

There has been a 6% increases in the total number of crimes registered under the Indian Penal Code in 2018. As many as 2,36,476 IPC cases were registered last year, up from 2,23,077 in 2017. In percentage terms, the number of cases filed rose by 6.01%. However, the total number of crimes such as rape, attempt to murder and abduction, among others, have declined by 29.48%.

While total heinous crime in 2018 showed a 11.72% drop, cases of dacoity, attempt to murder, robbery, rape and riot have gone down by 36.11%, 16.26%, 20.15%, 0.78% and 54% respectively, as compared to the year before. Even incidents of snatching and burglary showed a declining trend.

However, there has been an increase in the number of murders, with 477 cases registered in 2018 as compared to 462 in 2017. Out of these, 86.16 per cent cases were solved. The incidents of murder, per lakh of population, showed a significant decline over the last 14 years, coming down to 2.60% last year from 3.29% in 2004.[14]

In my opinion, there is no doubt that guilty persons and criminals must be punished and that their punishment should be proportional to the severity of their crime. These punishments are required to maintain rule of law in society, in which law abiding citizens are protected from law breakers. In the absence of punishment, society's dishonest and criminal elements would render it unliveable for the common man.

Awarding death sentence for heinous crime is very important for those people who thinks to do the crime of such a nature. In country like India, there are safeguards which ensures that death sentence should not be given to a innocent person. Individuals who argue against the death sentence do not disagree about the need for imposing some other form of punishment.

While they agree that a severe punishment is in order, they oppose the death sentence as an improper and unethical method of punishment. I do not agree with this line of reasoning, as I believe that punishments should be proportional to the severity of the crime. A criminal is only assigned a death sentence in extreme cases.

  1. J.R.R. Tolkien, The Fellowship of the Ring
  2. Gupta 1986; Mohapatra and Mohapatra 2016
  3. Bare Act The Indian Penal Code, 1860
  4. (1973) 1 SCC 20.
  5. (1979) 3 SCR 646.
  6. AIR 1980 SC 898 : (1980) 2 SCC 684
  7. 1983 (3) SCC 470 : AIR 1983 SC957.
  8. (1983) 4 SSC 645.
  9. A.I.R 1983 S.C 365.
  10. A.I.R. 1989 S.C 142.
  11. (1983)2 SSC 277.

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