Death Penalty1

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It gives me a great pleasure to present this project on

strictly

in manner under the guidance of our learned Professor, I have made sincere efforts to make the assignment more meaningful, complete, compact and comprehensive. It’s a great pleas ure 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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INDEX 1.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 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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Each society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. These sanctions s anctions 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 i nvolves the depri depri vation of cer cer tain nor mall y recogni recogni zed ri ghts, or oth er meas measur es considered un pleasant. pleasant. 2)  I t i s consequence consequence of an off of f ence. 3)  I t is appli appli ed again again st the auth or of the cr cr im e. 4)  I t i s appli ed by an an or gan of the th e system ystem that made the act act an of f ence.

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 recently the 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  Salmond’s , which says, Crime is an act deemed by law to be harmful for the society defi defi niti on of cri cri me  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 4|Page Criminology

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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 victim‟s 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 off enders or by b y incapacitating and preventing preventi ng them from repeating r epeating the offence o ffence or by 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 affin ity of o f punishment punis hment with wit h 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 standpo int on the issues iss ues of deterrence, reform or physical incapacitation. i ncapacitation. Obviously Obv iously 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 today‟s 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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 :

Cr im e is behavior behavior or action that i s puni shabl e by cri mi nal l aw. A cr im e is a publi c, as oppos opposed to a mor al, wr ong; i t i s an of fence committed agai agai nst (and hence pun i shabl e by) by) the state state or th e communi ty at lar ge. ge. M any cri mes are immor al, but n ot all actions considered considered i mmor al 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   first suggests that punishment must be an evil, an unpleasantness to the lew  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 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 6|Page Criminology

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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. 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 retr ibutive 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 tha t certain kinds of severe treatment become be come 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. appli ed. The distinctiveness of the unpleasant measure could coul d 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 convicted of terr ori st activiti es. Recently the Indian Supreme 1  Court in Swamy Shar Shar addanan addanan da v. State State of of Kar nataka   made imposing the death penalty

even harder. The judgement holds that the “rarest of the rare” test prescribed in Bachchan Singh’s 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.

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Official government statistics claim that only 52 people had been executed since in depe dependence ndence,, but th e Pe People's Uni on f or Ci vil L iberti es cited inf orm ation has sugge sugges sted ted that th at th e total nu mber of executi ons si si n ce i ndependence ndependence may be be as hi gh as 3,000 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  brigand  Veerappan's Veerappan's four associates —  Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran — for 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. Th e de death penalty i s carr i ed out by han gin g. After a 1983 chal chal lenge to thi s method, method, the Supr eme Court r ul ed that hanging did not i nvolve tortur e, barbari barbari ty, hum il iation, or,

 was convicted of conspiracy in connection with  was degradation. Mohammad Afzal Afzal (Afzal (Afzal Guru )  10 | P a g e Criminology

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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 " shocke hock ed the conscience conscience of th e society at lar ge."  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, Aj mal K asab  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 , the Supreme Court has continued with the State of U P  trend of emphasising the extremely limited scope of the rarest of rare doctrine first formulated in Bachan Singh. Ju sti ce Si nh a' s contr contr i buti on to th e de death penalty debate debate,, where he r epeate peatedly dly emphasi emphasi sed the fun damental damental precondi precondi tion in Bachan Sin gh-- -th at r arest arest of r are cas case e wil l be one where 'the alter alter nati ve option [ of l if e im pri sonment] i s

  We have also previously looked at his landmark judgment in un questi questi onably f oreclose oreclosed.'  d.'  Santosh Bariyar in some detail. Justice Sathasivam's judgment in Mulla seems to be informed  by a similar spirit. A few extracts from the th e 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.

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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 Bachh an Singh ' s v. State of Pun jab    (supra) has held that:"A real and abiding  (supra) 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." Th er ef ore, it i s open open f or th e court to gr ant a death death penal penal ty in an extr emely nar r ow se set of case cases, whi ch i s sign sign if i ed by the phrase `r arest arest of the rare'.  This rarest of the rare test relates to " special pecial r easons"  asons"   under Section 354(3).

Importantly, as the Court held, thi s r oute is open open to th e Cour t onl y when when th er e is no other . This results in the death penalty being an pun i shment whi ch may be altern atively atively gi ven  ven  exception in sentencing, especially in the case where some other punishment can suffice. It was in this context that the Court had noted:" The expres express sion " special pecial r easons asons"" in the context context of thi s provision , obviously obviously means means " exception xception al r easons" asons"

f oun ded ded on the

exception xception all y grave cir cir cumstance cumstances s of t he parti cul ar case case relati relati ng to th e cr cr im e as as well as the criminal" riminal"

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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 reg arding aggravating and mitigating miti gating circumstances. It has been the view vi ew 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 shou l d be be given given to th e mi ti gating cir cumstance cumstances s and eve even n af ter ter that i f th e court feels feels that j ustice wil l not be done i f an y puni pun i shm ent l ess than th an th e death death sent sente ence is awar awar ded, ded, then an d th en on l y death sent sent ence shoul shou l d be i mposed.

The principles laid down by the apex court in M achhi   were achhi sin gh v. State State of Pun jab  reiterated in it's latest judgment in Sushil M ur mu Vs. State of Jh arkh and   :" I n rarest rarest of of rar e case cases, when th e coll ective cti ve consci consci ence of the th e communi commu ni ty i s so shock shocke ed that th at i t wi l l expect the

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DEATH PENALTY hol der der s of th e ju dici al power power center center t o in fl ict death death penal penal ty ir r espective pective of th eir per per sonal opin i on as regards regards des desir abil it y or otherwi se of of r etain in g death death penalty, death death sentence 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 r eport of the L aw Commission    also Commission  reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt,  but they th ey may amount to mitigating circumstances. ci rcumstances. Socio-economic factors lead us to another ano ther 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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In Jagmoh an v. State State of of U .P the question of constitutional validity of Sec. 302, I.P.C. was discussed in detail by the SC. Apart from the constitutional validity, the SC also discussed  position in other countries, the structure of Indian Criminal law, various policies and bills  proposed in the parliament , the extent of Judicial discretion etc. On the question of constitutional validity the Court observed:" Th e Cr.P.C. requir es that the accus accuse ed mu st be questi questi oned with r egard to the cir cumstance cumstances s appe appeari ari ng against hi m i n the evide evidence nce . H e is also ques questi oned oned general general ly on the case case and and th er e is an an oppor oppor tun ity f or hi m to say whether whether h e want s to say say ....... ....... I n i mpor tant tan t cases cases l i ke mur der der , the Cour t always al ways gives a chance chan ce to the th e accused to address the Court on the question of Sentence. Under the Cr.P.C. after convi cting cti ng th e accuse accused, the Cour t has to pron oun ce the th e sentence accordi ng to l aw......... aw.........." ."

On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life of convict is taken without any procedure established by law & therefore, it violates Art. 21 of the constitution. Thus, the SC settled this controversy long back in 1973. However even after Jagmohan's case this question came up again and again. The SC reviewed Jagomhan' s Case    in the case of Bachan Sin gh Vs. State Case  State of Pu nj ab   because after Cr. P.C. 1973 , death deat h sentence ceased cease d to be the normal penalty penal ty for murder [ 354 (3)]. Another reason was that M aneka Gandhi ' s case   gave a new interpretation to Art. 14,19 case  and 21 and their interrelationship . Main issues before the SC were constitutional validity of Sec. 302 of the I.P.C . as well as constitutional validity of Sec. 354 (3) of Cr.P.C.

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The SC in the case of Bachan Sin gh Vs. State of Pu nj ab   observed".......if not withstanding the view of the abolitionists to the contrary , a very large segment of  people, the world over, including incl uding sociologists , legislature legisl ature , Jurists , judges and administrators ad ministrators 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 recogni zed legal sanction for murder mu rder or some types of murder mur der 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 possi possi ble bl e to held th at the provisi provisi on of death death penalty as an al ter ter nati ve pun ishment for mur der der , in sec. 302, Penal Penal Code i s un r easonable asonable and not i n th e publ ic i nterest. nterest. Th e im pugned pr pr ovision ovision in Sec. Sec. 302 302 , vi vi olates ol ates neit her the t he letter n or the th e ethos th os of A r ti cle 19"   .  . [ Para 132]

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The SC in the case of Bachan Sin gh v. State  considered a no. of opinions from all  considered State of Pun jab  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 pu ni shment dete deterr s man so eff ectuall y fr om commi commi tti ng cri mes as the

  . This is one of those propositions which is difficult to prove simply ”  ” . pun i shment of death  death   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 ese vi vi ews are ver ver y str str ong answer answer s to the people people who wh o oppose oppose death death pu ni shment wi th the argu ments ments that i t does does not se ser ve penol penol ogical pur pose  pose  ” .

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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 abidi ng conce concern rn for the digni ty of of h uman li fe pos postul ates ates r esistance to taki ng a li f e thr ough l aw' s in str umentali ty. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably for eclose closed.." d.."

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 a debate going on, about the extent of this judicial discretion.

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In Jagmohan ' s Case   the SC held :Case  " The stru stru cture of our cr imi nal l aw whi whi ch is pri ncipall y contained contained in the I PC and and the CR.P.C. CR.P.C. un der der takes takes the poli poli cy that wh en the legislatu legislatu r es have defi defi ned an of fence wi wi th clar i ty and prescri prescri bed bed the maximu m pun i shment, therefore a wide discr discr eti on i n th e matter matter of f i xi ng the degree degree of pun ishment shoul shoul d be all owed owed to judges judges."

Thus the SC was in favour of wide discretion to be given to judges for deciding the degree of  punishment.However, this vide vi de 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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DEATH PENALTY " Th e discr discr etion to im pose pose the se sentence of death or l if e im pri sonment is not so so vide after after all section 354 (3) has narr owed owed the discr discr etion . Death se sentence i s ordi nar il y ru led out and can onl y be im pose posed for special pecial r easons asons Judges Judges are left with the task task of discove discoverr i ng ' Spe Special r easons' asons'..

In the case of Dalbi r Sin gh v. State  the court expressing its concern for the way in  the State of Pun jab  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 reexamination 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 imperati ve to voi voi ce the conce concerr n th at cour cour ts, ts, aided aided by the broad il lu str ative gui deli deli nes in dicated dicated by us, wil l di scharge the onerous fun ction wi th eve ever mor e scru pul ous care and hum ane concer concer n, dir ected cted along wi th h igh r oad of l egislati ve poli cy outl i ned in Sec. Sec. 354(3).... 354(3)....." ."

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  , the accused was a poor agriculturist State of Tamil Nadu  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.

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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."

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In 1994, while deciding the case of An shad v. State , the SC Commuted State of K arn ataka  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 17 | P a g e

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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 in Javed Javed Ah med Abdul H amid pass passawa v.   on this case. The death sentence of accused was affirmed in State of M ahar astr astr a  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  .  . In State (N.C.T.) of D el hi  this case a one and hal f year ol d gir l was r aped aped by the accuse accused, d, and because because of the t he . H.C. confirmed the death henious act, she sustained serious injuries and died  sentence awarded by the sessions Court. But the H on' ble SC SC commuted the death death , observing :- "The crime committed is undoubtedly sentence i nto l if e im pri sonment  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 appe appell ll ant is such a danger danger ous pe per son th at to spare spare hi s l if e wil l endanger th e communi ty. I t is our considered considered view view that th e case case is one one in whi ch a h uman i st approach shoul d be taken taken in the matte matterr of awardi ng pun ishment 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 standardizati on 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 f or offence of similar nature natur e are awarded punishments of o f identical degree. degre e. 18 | P a g e Criminology

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The Indian Supreme Court had another opportunity to rectify its position, when the case of 2

V. Mohini Gir i v. Union of In dia   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 against death sentence, acquits the accused person". The Apex Court declined issuing such a guideline arguing that it would curtail the judicial discretion of the bench.

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In April 2000 the Government announced it would consider imposing the death penalty for individuals convicted of rape3 State Of U ttar Pr ades adesh V s.Sati .Sati sh

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.

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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 coaccused 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 Wazi  the Supreme Court held that the distinction made in the Wazi r Sin gh v. State State Of Pu nj ab  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 3 4

2002 AIR SCW 5306 Hindustan Times 19 April 2000 08.2.2005

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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   the Supreme Court held that "....undue veni ben ben v. State of Guj arat  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 sentence 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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It is a complex issue and it is difficult to point to any single fact or argument as the most important.

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 been incurred 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 s ystem that has executed no one," the report concluded. conclude d. Michael Murphy, Murp hy, 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 the tools for law enforcement to do their job, and $11 million can buy a lot of tools." 21 | P a g e Criminology

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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.

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 exper ienced by the th e family. Funds Fund s now being bein g used for the costly costl y process of 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.

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 a more limited appeals process last approximately approximatel y 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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.. Dh ananj oy Chatter Chatter jee ali as Dh ana vs State of West West Bengal & Or s  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 ushi l M ur mu Vs. State of Jh arkh 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. Sati Sati sh

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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DETERRENCE:  The death penalty prevents future murder. The

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 rarel y used and takes years before an execution execu tion is actually carried carri ed out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do 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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again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime. Testimony in support of deterrence deterrence Er nest nest van den den H aag, Professor of Jurisprudence and Public Policy, Fordham University.

Excerpts from "

The Ul timate Pun Pun ishment: ishment:

A

Defens Defense e,"  (Harvard Law Review

Associati Associati on, 1986 ) “Execution of those who have committed heinous murders may deter

only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.” “Most abolitionists  acknowledge that they would continue to favour abolition even if the death penalty were shown to deter more murders than alternatives could deter. Abolitionists appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers. Deterrence is not altogether decisive for me either. I would favour retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment. Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the  possibility, or even the probability, probabilit y, that executing them would not deter others. Whereas the life of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.” ”We threaten punishments in order to deter crime. We impose them not only to make the thr eats credible but al so as r etr i buti on (j ustice) ustice) f or the cri mes that were not dete deterr r ed. Th r eats and puni pu ni shme hm ents nt s ar e neces necessar y to deter deter and deter deter r ence is a suf suf f i cient pr actical  ju  j u stif i cati on f or th em. Retri Retr i buti bu ti on i s an i ndepe nd epen n dent mor al j u sti f i cati on. on . A l th ough ou gh penal penal ti es can can be un wise, wise, r epul sive, or or in appropri ate, ate, and th ose ose pun pun ished ished can be piti able, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committi ng th e cri me, me, the cri mi nal volun tee teer ed to ass assume the r isk of r eceivi ceivi ng a l egal pun i shment that h e could h ave avoided avoided by not commi tti ng th e cri me. Th e pun ishment ishment he suf fers is the pun pun ishment he volun tari ly r i sked suf feri ng and, therefor e, it i s no mor e

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DEATH PENALTY un ju st to him than an y other other eve event f or wh ich one kn owin gly volun tee teer s to ass 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 or Canada, 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 c aught 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 in most 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 on the 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 firstdegree 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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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 identi cal degree.

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

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www.LegalServiceIndia.com

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www.Findarticles.com

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Wikipedia, the encyclopedia

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