DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISHAKAPATAM

PROJECT ON

EXECUTION OF DEATH SENTENCE BY HIGHCOURT

SUBJECT

CODE OF CRIMINAL PROCEDURE

SUBMITTED TO

PROF. SOMA BATTACHARJYA

PROJECT SUBMITTED BY

MOUNIKA. KODI

2018046

FOURTH SEMESTER

SECTION A

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ACKNOWLEDEGMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Code Of
Criminal Procedure professor, prof. Soma battacharjya for giving me a golden opportunity to
take up this project regarding- Execution of death sentence by high court. I have tried my best to
collect information about the project in various possible ways to depict a clear picture of the
given project topic.

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TABLE OF CONTENTS

INTRODUCTION

PROCEDURE IN CRIMINAL LAW FOR DEATH SENTENCE CASES

THE PROCEDURE OF APPEAL

COMMUTATIONS AND CLEMENCY

LAW COMMISSION OF INDIA’s REPORT ON DEATH SENTENCE

THE CRIMINAL RULES OF PRACTICE AND CIRCULAR ORDERS, 1990

DEATH SENTENCE: THE CURRENT STATUS

EMERGENCE OF ALTERNATIVE PUNISHMENT TO DEATH SENTENCE

DEATH SENTENCE AND JUDICIAL TRENDS

CONCLUSION

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INTRODUCTION

The death penalty is the most severe form of punishment. It is the punishment which is to be
awarded for the most heinous and grievous crimes against humanity.

The Indian Courts and laws has put Death penalty in utmost importance and is so awarded for
rare crimes in rare cases for rare Criminal. As the precision of Indian Laws and procedures strive
to reach Justice. It strives for punishment for guilty and it strives for innocent to be not sentenced
even unknowingly. However there are procedural hazardous which are tried to be minimized.

The code of criminal procedure,1973, also contains a provision regarding death sentence. Section
354(3) of the code provides that while “When the conviction is for an offence punishable with
imprisonment for life the judgment shall state the reasons for the sentence awarded, and in the
case of sentences of death, the special reasons for such sentence.” The court must record
“Special reasons” justifying the sentence and state as to why an alternative sentence would not
meet the ends of justice in that particular case.

Commenting on this provision of the code, Mr. Justice V.R.Krishna Iyer of the supreme court of
India observed that the special reasons which section 354 (3) speaks of provides reasonableness
as envisaged in article 19 as a relative connotation dependent on a Varity of variables, cultural,
social, economic and otherwise.

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PROCEDURE IN CRIMINAL LAW FOR DEATH SENTENCE CASES

The Cr.P.C. provides of the possibility of a three - stage judicial process. Since all death penalty
cases involve a charge of murder or similar other serious offences, all initial trials under the
ordinary criminal law are held before a District and Sessions Court in a particular state.

In the event of the trial court awarding a death sentence, it is mandatory for the respective High
Court of the state to confirm the sentence under section under section 366 of crpc.

The High Court has the power to direct further inquiry to be made or additional evidence to be
taken upon any point bearing on the guilt or innocence of the accused at this stage under section
367 of crpc.

Based on its assessment of the evidence on record, the high Court may: (i) confirm or pass any
other sentence, or (ii) annual the conviction and convict for any other offence that the Sessions
Court might have convicted the accused of or order a new trial on the basis of the amended
charge, or (iii) acquit the accused person. Under section 368 of crpc.

The High Court is also the first appellate court for a person sentenced to death. At the third level
is the Supreme Court of India. There is no automatic right of appeal from the order of the High
Court to the Supreme Court in death penalty cases except in a situation in which the High Court
has imposed a death sentence while quashing a trial court acquittal.

“Special Leave” to file an appeal with the Supreme Court has to be granted by the High Court or
the Supreme Court has to give leave to file an appeal before it. In the case of some special
legislation such as the Terrorist and Disruptive Activities (Prevention) Act 1987, provides that
appeals against the ruling of the trial court should automatically lie only with the Supreme Court
(Though this Act lapsed in 1995, trials under the Act continue to this day).

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THE PROCEDURE OF APPEAL

Under the Cr.P.C. as part of the mandatory confirmation by the High Court of a death sentence
handed down by a trial court, a High Court bench of a minimum of two judges must, on
appreciation of the facts, come to its own conclusion on guilt and award a sentence as deemed fit
in the circumstances of the case. As indicated above, if the High Court confirms the death
sentence, no automatic appeal is provided to the Supreme Court.

In the event that a trial court acquits an accused in a case involving a crime punishable by death
or other offences, the state alone can file an appeal against acquittal before the High Court under
Section 378 Cr. P.C.

The High Court can either confirm the acquittal or set aside the acquittal and convict the accused
for the alleged crimes and impose sentence. If the acquittal is set aside and a death sentence
imposed, Section 379 of the Cr.P.C. provides for an automatic appeal to the Supreme Court.

Special right of appeal in certain cases.

Appeals may also be filed by the state for enhancement of sentence imposed by the trial court or
the High Court if it feels that the sentence imposed is inadequate under Section 377 Cr. P.C.

Ordinarily, relatives of the victims of the crime can file revision petitions (but not appeals)
seeking enhancement of the punishment in the High Court or Supreme Court.

Notably, while in the event that a High Court overturns an acquittal and awards a death sentence
there is an automatic right to appeal to the Supreme Court, there is no such right in the event a
High Court enhances a trial court’s sentence to that of death. As noted above, access to the
Supreme Court for appeal can only be granted if the High Court grants special leave or if special
leave is granted by the Supreme Court itself. The Supreme Court can dismiss a death sentence
case in limne, i.e. at the threshold stage itself without even admitting the appeal for
consideration.

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COMMUTATIONS AND CLEMENCY

The judicial process comes to an end once the highest courts – either the High Court (in cases
where no appeal has been filed in the Supreme Court or where special leave petitions have been
dismissed) or the Supreme Court (if special leave has been given) – have confirmed the death
sentence. The law provides that in such a situation the convict shall be ‘hanged by the neck till is
dead (Section 354 (5) Cr. P.C.)

There are two ways in which a convict can at this stage avoid execution.

The first is a “commutation” of the death sentence by the appropriate government under
provisions of the I.P.C. and Cr.P.C.

The second is a commutation or pardon granted by the president of India or the Governor of the
relevant state under Articles 72 and 161 of the Constitution of India. However the President and
Governor can exercise this power only on the ‘aid and advice’ of the Council of Ministers.
Article 72 (3) of the Constitution clarifies that the power of the President of India to grant pardon
and commutation in Article 72 (1) should not curtail the exercise of similar power to commute
death sentences given to the Governor of the States concerned under Article 161. This provision
is of critical importance as the Constitution implicitly provides a two-tier process of seeking
pardon and commutation from Constitutional functionaries, and also provides for the theoretical
possibility of a difference in opinion between the Governor of the State exercising power under
Article 161 and the President of India under Article 72. There is of course a fundamental
difference between the powers exercised by judicial bodies and those exercised by constitutional
authorities. An appeal to higher judicial Court is based on a challenge to the legal evidence heard
at trial that has a bearing on the guilt of the accused and to the sentence imposed. The process
focuses on the appreciation of evidence placed before the courts and is therefore circumscribed
both by the nature of the evidence as also the rules relating to assessment of the evidence. The
commutation powers of the government and the President / Governors are not limited by the
evidence permitted before the courts. In the exercise powers to grant pardons and commutations,

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they have the authority and the moral justification to go beyond the legal position. Appeals to the
executive are therefore often based on background – personal and social factors that explain the
conduct of the convicted person, their psychological and cultural background and other special
features including material that could not be placed before the courts.

In Kehar Singh and Anr. v. Union of India and Anr.1

Kehar Singh was sentenced to death due to his role as a co-conspirator in the assassination
of Indira Gandhi. His sentence was confirmed by the Supreme Court, and subsequent
review petition and writ petitions were dismissed. His son filed a mercy petition with the
President which was also rejected, stating that the President could not go into the merits of
a case decided by the Supreme Court. This was the question being considered here.

The Supreme Court held that the President was entitled to go into the merits of a case,
while exercising his power of pardon, and his decision would not affect the judicial
pronouncement since the executive power to pardon was entirely different from the
judicial function of Courts. Irrespective of the grant of pardon or not the judicial record
remains the same. The Court also held that the exercise of power by the President was
open to Judicial Review to a limited extent The Court cannot go into the merits of the
decision taken by the President but can ensure that the decision-making process met with
the procedural requirements and the principles laid down in the constitution.

In Union of India v. V. Sriharan @ Murugan and Ors2

In the Rajiv Gandhi assassination case, the Supreme Court had commuted the death
sentence of three accused. The State of Tamil Nadu, thereafter proposed to remit the life
sentences and release all the seven convicts. The Union of India challenged this proposal,
and the Supreme Court referred certain questions to the constitution bench of the court,
including whether life imprisonment under Section 54 read with Section 45 of the IPC
means imprisonment for rest of the life of the prisoner, and whether a special category of
sentence may be made for the cases where death penalty might be substituted by life
imprisonment which meant the rest of the natural life of the prisoner put that category
beyond application of remission.
1
AIR 1989 S.C. 653.
2
AIR 2014 S.C.C. 242.

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The Supreme Court noted that life imprisonment could only mean imprisonment for rest of
the life of convict. The right to claim remission, commutation, etc. as stipulated under
Article 72 or Article 161 of the Constitution would always be available. These were
Constitutional powers vested in the Executive which were beyond the judicial powers of
the Courts, and thus cannot be interfered with. Further, the special category of sentence
created was substitution of death sentence with life imprisonment, or for a term exceeding
14 years, and put that category beyond application of remission, but such a decision can be
given only by the High Court or the Supreme Court.

The minority was of the opinion that it was not open to the Court to make any special
category of sentence in substitution of death penalty and put that beyond the scope of
remission. The special category of punishment has been carved out on the understanding
that the power of remission reduced the sentence of life to 14 years. However, this is not
predicated on judicial interpretation but on a practical consideration that the power of
remission is often exercised inconsistently. It is for the legislature to remedy such a
situation, not the judiciary. Further, they also held by creating such a special category the
aspect of reform and rehabilitation may be defeated since remission can be granted based
on the good conduct of the prisoner in jail.

LAW COMMISSION OF INDIA’s REPORT ON DEATH SENTENCE

The Law Commission of India in its 262nd Report (August 2015) recommended that death
penalty be abolished for all crimes other than terrorism related offences and waging war.
Complete recommendations of the Report are as follows:

The Commission recommended that measures suggested that police reforms, witness protection
scheme and victim compensation scheme should be taken up expeditiously by the government.

The march of our own jurisprudence from removing the requirement of giving special reasons
for imposing life imprisonment instead of death in 1955; to requiring special reasons for
imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the
Supreme Court to the rarest of rare cases shows the direction in which we have to head.
Informed also by the expanded and deepened contents and horizons of the Right to life and
strengthened due process requirements in the interactions between the State and the individual,

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prevailing standards of constitutional morality and human dignity, the Commission felt that time
has come for India to move towards abolition of the death penalty.

Although there is no valid penological justification for treating terrorism differently from other
crimes, concern is often raised that abolition of death penalty for terrorism-related offences and
waging war, will affect national security. However, given the concerns raised by the law makers,
the Commission did not see any reason to wait any longer to take the first step towards abolition
of the death penalty for all offences other than terrorism related offences.

The Commission accordingly recommended that the death penalty be abolished for all crimes
other than terrorism related offences and waging war.

Further, the Commission sincerely hopes that the movement towards absolute abolition will be
swift and irreversible.3

THE CRIMINAL RULES OF PRACTICE AND CIRCULAR ORDERS, 1990

94. Reasons for sever or lenient punishment to be recorded:- In every Sessions trial in which
a sentence of exceptional severity or unusual lenience is passed or in which varying degree of
punishments are awarded to different persons convicted of the same offence in one trial, the
reasons which guided the Judge in the determination of the amount of punishment shall be
recorded in the judgment.

In the case of Ediga Anamma v. State of Andhra Pradesh4

The appellant was the mistress of the victim. She murdered him and his child out of
jealousy due to his infidelity to her. The murder was gruesome and she had disfigured and
burnt the bodies before burying them. The question was whether this was a fit case for the
exercise of judicial discretion in imposing the death sentence.

Justice Krishna Iyer commuted the death sentence to life imprisonment by citing factors like age,
gender, socio-economic background and psychic compulsions of the accused. It was laid out in
this case that apart from looking into the details of the crime and deciding based on the extent of
violence committed the judges should also look into the criminal and his condition or
3
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.217-218.
4
AIR 1973 S.C. 774.

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haplessness while committing the crime. Justice Krishna Iyer in support of life imprisonment
over capital punishment said:

“A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so
we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending
the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting
out life

95. Copy of letter of reference in referred trial:- A prisoner sentenced to death is entitled to
obtain a copy of the Judge’s letter of reference.

96. Order of High Court in referred trials to be communicated to Superintendent of Jails

within 24 hours:- Sessions Judge are directed to make arrangements for communicating every
order of the High Court imposing, confirming, reversing or commuting a sentence of death to the
Superintendent of the Jail where the prisoner in confined within 24 hours of the receipt of the
order in the Court of Session

154. Cases to be heard by a Bench of two Judges: - The following classes of cases will
ordinarily be heard by a Bench of two Judges.
1. Every reference under Section 366 of the Code and every appeal from the Judgment of a
Criminal Court in which sentence of death or imprisonment for life has been passed on the
appellant or on a person tried with him.
2. Every appeal against acquittal on a capital charge.
3. Every case enhancement of sentence to one of death.
4. Every appeal, application, reference or revision petition which may be referred to Bench by a
Single Judge.
5. Every other case marked at the time of admission for a Bench of two Judges.

163. Certificate under Article 132 or 134 of the Constitution: - In cases where the High Court
grants a certificate under Article 132 or 134 of the Constitution to a person under sentence of
death, the date of the issue of the certificate shall forthwith be intimated to the Government and
the Superintendent of the Jail in which the prisoner is confined.

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169. State Brief: - An Advocate shall be engaged at the cost of the State to defend an accused
person who does not engage an Advocate himself in the following cases:
(1) Where he is under a sentence of death.
(2) Where he has been called upon to show cause why a sentence of death should not be passed
upon him; and
(3) Where an appeal has been filed under Section 378 of the Code in case involving a sentence of
death or imprisonment.
174. In sentences of death, two sets of papers to be sent to the Government:  - In every case,
in which sentence of death is passed or confirmed by the High Court two copies of the Judgment
of High Court with two sets of typed or cyclostyled evidence and of all other material papers
shall be forwarded to the Government in the Home Department

In Shabnam V Union Of India5

Shabnam and Saleem were convicted and sentenced to death for murdering seven members
of Shabnam’s family. Once their appeals were rejected by the Supreme Court, the Sessions
Court issued death warrants. A writ petition was filed in the Supreme Court challenging
these death warrants as being impermissible since all legal remedies had not been
exhausted.

The Supreme Court agreed that the warrants were impermissible since various judicial and
administrative remedies were yet to be exhausted. Further, Art 21 recognizes human
dignity as a right and such dignity must be accorded to every convict till the execution of
the sentence. A death warrant can be issued only after all judicial and administrative
remedies have been exhausted. Once a death warrant is issued, the following procedure
must be adhered to:

1. The convict must be given notice of the warrant to be issued by the Sessions Court
so that she can arrange for a counsel to represent her.
2. The death warrant must specify the exact date and time of the execution.

5
AIR 2015 S.C.C. 702.

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 3. There must be reasonable period of time between date of order on the warrant and
the date of execution so that the convict can pursue legal recourse against the
warrant and meet her family.
4. A copy of the warrant must be immediately supplied to the convict.
5. Where required the convict must be provided with legal aid.

Apart from this, there is a quadruple test to be satisfied for execution of the death
sentence:

1. The act of execution must be as quick and simple as possible, without increasing
the suffering or apprehension of the convict.
2. The act of execution must produce immediate unconsciousness passing quickly into
death.
3. It should be decent
4. It should not involve mutilation

Indian Penal Code 1860 ( I.P.C.)

A death sentence may be awarded under the I.P.C. in the following cases :

There are two categories of laws that provide for death sentences in India : The Indian Penal
Code, 1860 (I.P.C.); and Special or local legislation.

The source of the power to award death sentences arises from Section 53 of the I.P.C. This is a
general provision on punishment.

The I.P.C. provides for capital punishment for the following offences, or for criminal conspiracy
to commit any of the following offences (Section 120-B):

1. Treason, for waging war against the Government of India (Sec. 121);

2. Abetment of mutiny actually committed (Section 132);

3. Perjury resulting in the conviction and death of an innocent person (Section 194);

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4. Threatening or inducting any person to give false evidence resulting in the conviction and
death of an innocent person (Section 195 A):

5. Murder (Section 302) and murder committed by a life convict (Section 303). Though the latter
was struck down by the Supreme Court, it still remains in the I.P.C.

6. Abetment of a suicide by a minor, insane person or intoxicated person (Section 307).

7. Attempted murder by a serving life convict (Section 307 (2));

8. Kidnapping for ransom (Section 364 A); and

9. Dacoity (Armed robbery of banditry) with murder (Section 396).

The I.P.C. provides a definition of crimes and prescribes the punishment to be imposed when the
commission of a crime is established through a trial process in a court of law in which evidences
is placed before the court and the accused is provided with an opportunity not only to test the
evidence of the prosecution but to also lead their own evidence, if so desired. Any finding
substituted, or any sentence passed under this section shall, for the purposes of this act and the
rules made there under, have effect as if it were a finding or sentence, as the case may be, of
court martial.

DEATH SENTENCE: THE CURRENT STATUS

Supreme Court on Validity of Capital Punishment

In India Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty
for all persons. It adds no person shall be deprived of his life or personal liberty except according
to procedure established by law. This has been legally construed to mean if there is a procedure,
which is fair and valid, then the state by framing a law can deprive a person of his life. While the
central government has consistently maintained it would keep the death penalty in the statute
books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has
upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan
Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979),
and finally in Bachan Singh vs State of Punjab, the Supreme Court affirmed the constitutional
validity of the death penalty. It said that if capital punishment is provided in the law and the

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procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This
will, however, only be in the “rarest of rare” cases, and the courts should render “special
reasons” while sending a person to the gallows.

Criteria for Rarest of Rare

The principles as to what would constitute the “rarest of rare” has been laid down by the top
Court in the landmark judgment in Bachan Singh vs State of Punjab.

In Bachan singh v. state of Punjab6

Bachan singh was tried and convicted and sentenced to death under section 302, Indian penal
code for the murders of desa singh, durga bai, and veeran bai by the sessions judge. The high
court confirmed his death sentence and dismissed the appeal. Then he filed an appeal before SC
by special leave, which came up for hearing before a bench of the hon’ble supreme court.
The question raised in the appeal was that whether the facts found by the courts below would be
special reasons for awarding death sentence as required under section 354(3) of the code.
The expression “special reason” in Section 354(3) of Cr.P.C means “exceptional reasons”
founded in the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal.
The Apex Court laid down the principle of “rarest of the rare cases” in awarding the death
penalty. The Court said it was to give sufficient weight to the mitigating circumstances
pertaining to the criminal along with the aggravating circumstances relating to the crime. Those
convicted for murder, life imprisonment is the rule and death sentence is an exception.
The burden rests on the State to establish by producing material before the Court or authorities,
that death penalty has greater deterrent effect than life sentence in order to justify its imposition
under the law. If the State fails to discharge this burden which rests upon it, the Court would
have to hold that death penalty has not been shown to have greater deterrent effect and it
does not therefore serve a rational legislative purpose.

6
AIR 1980 S.C. 898.

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EMERGENCE OF ALTERNATIVE PUNISHMENT TO DEATH SENTENCE

In the last few years, Supreme Court has entrenched the punishment of “full life” or life sentence
of determinate number of years as a response to challenges presented in death cases.

In Swamy Shraddhanand & Murali Manohar Mishra V. State Of Karnataka7

The appellant was sentenced to death by both the trial court and the High Court. On appeal
to the Supreme Court, the conviction was upheld by the Division Bench but they did not
agree on the Punishment. While one judge thought that life imprisonment would suffice as
it was not a case of rarest of the rare, the other judge was of the opinion that life
imprisonment was insufficient as a sentence here since the remission powers of the
executive effectively means that the sentence could be remitted after 14 years. On the
question of sentence, the case was referred to a larger Bench.

The Supreme Court speaking through a three-judge bench decision laid the foundation of this
emerging penal option in following terms:

“The matter may be looked at from a slightly different angle. The issue of sentencing has two
aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately
inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial
court and confirmed by the High Court, this Court may find, as in the present appeal, that the
case just falls short of the rarest of the rare category and may feel somewhat reluctant in
endorsing the death sentence. But at the same time, having regard to the nature of the crime, the
Court may strongly feel that a sentence of life imprisonment subject to remission normally works
out to a term of 14 years would be grossly disproportionate and inadequate. What then should the
Court do? If the Court's option is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14 years and the other death, the
Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and proper course would be to expand
the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast
hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court
would take recourse to the expanded option primarily because in the facts of the case, the
7
AIR 2008 S.C.C. 767.

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sentence of 14 years imprisonment would amount to no punishment at all. Further, the
formalisation of a special category of sentence, though for an extremely few number of cases,
shall have the great advantage of having the death penalty on the statute book but to actually use
it as little as possible, really in the rarest of rare cases "

The observations in Swamy Shraddhanand case have been followed by the Court in a multitude
of cases where full life or sentence of determinate number of years has been awarded as opposed
to death penalty.

DEATH SENTENCE AND JUDICIAL TRENDS

The abolitionists see this provisions a green signal for dilution of capital punishment while for
the retentionists the special reasons contemplated by section 354 (3) implicitly suggest, that
death Sentence is legally and constitutionally permissible.

In Rajendra Prasad v state of uttar Pradesh8

The appellant had earlier been given life sentence for murder and had been granted
pardon; on his release he again committed murder. The case came up as a criminal appeal
and the Court was to determine whether the case qualified as having ‘special reasons’
required under the CrPC to impose death sentence.

In a way Rajendra Prasad’s case provided an appropriate opportunity for the Supreme Court to
express its view on need for dilution of death penalty in the context of Indian society Citing
extensively from Anglo American literature’ available on the subject and the relevant case law.
Mr. Justice Krishna Iyer tried to derive at the point that special reasons referred to under Section
354 (3) of the Code of Criminal Procedure must be liberally construed so as to limit; death
penalty only to rare categories of cases such as white collar crime anti-social offences like
hijacking or selling of spurious liquor, etc. and hardened murderers. Justice Krishna Iyer
emphatically stated that by and large murders in India are not by a calculated professionally cold
blooded planning but something that happens on the spur of the moment due to sudden
provocation passion family feud or an altercation etc. motivates one to go to extreme and commit
8
AIR 1979 S.C. 916.

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the crime and therefore, there are prospects for reformation of the offenders if they are not done
away to death.

Note
Overruled in Sunder Singh v State of Uttaranchal (1980) 2 SCC 684 in light of the
standard laid down in Bachan Singh.

In Kuljeet Singh alias Ranga vs Union Of India & Anr9

The accused Kuljeet Singh alias Ranga along with one Jashbir Singh alias Billa committed
gruesome murder of two teenage children Gita Chopra and her brother Sanjay in a professional
manner and was sentenced to death by Additional District Judge, Delhi. The High Court
confirmed the conviction and death sentence whereupon appellant moved in appeal to Supreme
Court.

Dismissing the appeal, the Supreme Court upheld the conviction and sentence of the accused on
the ground that the murder was preplanned, cold – blooded and committed in most brutal
manner; hence there were no justifying circumstances warranting mitigation of sentence.

In Machi singh and ors v state of Punjab10

The facts are 17 members of a family were murdered due to an on-going feud between two
families. Death sentence was given to the appellants by the Trial Court and the sentence
was confirmed by the High Court. In appeal before the Supreme Court, the question was
whether the case satisfied the standard of ‘rarest of the rare’ laid down in Bachan Singh.
In assessing the various aggravating and mitigating circumstances as per Bachan Singh,
the Court held that there may be circumstances (based on the depravity of the crime,
crimes committed against minority communities or those which are of a nature arousing
social wrath, power relations between the offender and the victim etc) where the collective
conscience of the society is so shocked that it mandates the imposition of the death
sentence.

11
In Ravji Alias Ram Chandra V State Of Rajsthan
9
AIR 1981 S.C. 1572.
10
AIR 1983 S.C.C. 470.
11
AIR 1996 S.C.C. 175.

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The appellant was convicted and sentenced to death for the murder of his wife and three
minor children and a neighbour. The lower court held it to be a cold-blooded and
premeditated murder which merited death. the High Court affirmed the death sentence passed
by the learned Additional Sessions Judge The Supreme Court had to decide whether the
rarest of rare standard was met.
The Court applied the deterrent and retributive theories of punishment in this case.
Looking at the facts and circumstances, the court held that the appellant had a duty to
protect and care for his wife and children. The act was committed in cool and calculated
manner while victims were asleep. There was absence of provocation or any psychic disorder
which could be attributed to these brutal and heinous murders. Therefore, the Court found no
Justification to commute the death penalty to imprisonment for life and dismissed the appeal.

In Geneta Vijayavardhan Rao & another v. State of Andhra Pradesh12

The two appellants were accused of setting up a super express: bus on fire by sprinkling petrol
with the motive of plundering the passengers. This resulted into roasting 23 passengers to death
besides & a number of passenger’s sustained serious burn injures. The defense plea was that the
accused were young and their prime motive was not murder but plundering property and wealth
was not considered sufficient enough to constitute mitigating. Circumstances warranting
commutation of death sentence to that of imprisonment for life.
The Apex Court ruled that considering the overall picture, the case was one of the rarest of rare
case not merely because of record number of innocent human beings roasted. Alive but the
inhuman manner in, which the Scheme of crime was plotted and executed.

In Santosh Kumar Satishbhushan Bariyar V. State Of Maharashtra13

This was a case of kidnapping for ransom by four persons which lead to the murder of the
person held hostage. The question before the Supreme Court was what weight should be
given to mitigating circumstance while considering whether or not to impose the death
penalty.
The sentence was reduced to one of rigorous imprisonment for life relying on the doctrine
of proportionality and rehabilitation. The Court held that the principle of proportionality
12
AIR 1996 S.C. 2791.
13
AIR 2009 S.C.C. 498.

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as generally understood cannot be applied since the judicial discretion to impose the death
sentence has to be read in conjunction with Art 21. The standard laid down in Bachan
Singh and Machi Singh should be seen as an extension of the constitutional scheme. The
emphasis is on rehabilitation and the understanding is that life imprisonment is the rule
and death sentence is the exception. Therefore, even though all mitigating circumstance
may not have equal value, since Bachan Singh has laid a positive duty on the State to
show that there is no possibility of reform or rehabilitation, it must be given due
consideration by courts before exercising its discretion. Art 14 Equal protection applies to
the sentencing stage and therefore there must be a pool of capital defendants equally
circumstanced in respect of gravity, nature, motive, aspects relating to socio-economic
conditions. Aggravating and mitigating circumstances have to be identified separately, but
no such comparative review is required for the imposition of death.
Art 21- The sentencing process must find a rational and objective connection between
capital punishment and its purpose and the special reasons should satisfy the comparative
utility of giving death over life imprisonment.
In Sangeet v. state of Haryana 14
There were multiple accused who were convicted for various offences under the IPC
(including murder) and the Arms Act. The Supreme Court had to consider whether the
case fell in the category of rarest of rare.
The sentence was commuted to life imprisonment. The court observed that the aggravating
circumstances pertained to the crime while mitigating circumstance referred to the
criminal. Both are distinct elements which cannot be compared. Further, though Bachan
Singh sought to shift the focus from the crime to the crime and the criminal, the notion of
principled sentencing hasn’t taken root and the circumstances of the criminal seems to
have taken a backseat. Machi Singh tried to standardize the procedure but the effect has
been that sentencing has become judge centric and is not being applied uniformly. In light
of this, the Court held that where there is considerable uncertainty as to propriety of
punishment, awarding of life imprisonment does not stand unquestionably foreclosed.
Moreover, when there are inconsistencies in evidence then the death sentence must not be
imposed, even if the evidence is held to be sufficiently proved to convict.

14
AIR 2013 S.C.C. 452.

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In Dhananjoy Chatterjee alias Dhana v. State of West Bengal15
The appellant was found guilty of committing rape and murder of a school going 18 years old
girl in retaliation for his transfer as a security guard to some other building complex, on the
complaint by the deceased girl to her parents that the appellant was teasing and harassing her.
His appeal having failed in the High Court and the Supreme Court and the mercy appeal being
rejected by the Governor of West Bengal and also the Hon’ble President of India, he was finally
hanged till death on 14th August 2004 in Alipore Jail of West Bengal in execution of his death
sentence.
The facts of the case were as follows: The appellant was security guard deputed to guard the
building Anand Apartments. Deceased had made complaint about the teasing by the appellant to
her mother previously also and her father requested to replace the appellant and accordingly he
was transferred to Paras apartment. Anguished from this, the appellant entered the house in the
absence of other members, committed rape and killed her. She was found dead on the floor with
her skirt and blouse pulled up and her private parts and breast were visible with patches of blood
near her head and floor. According to medical evidence, hymen of the deceased showed fresh
tear with fresh blood in the margins and blood stains on the vagina and matted public hair.
It is settled law that when the case is based on circumstantial evidence, the motive also gets
importance. In the circumstance the chain of the evidence was so complete that it led to the guilt
of the accused.
The appellant was charged and tried for rape and murder and also for an offence under Section
380, I.P.C. for committing theft of a wrist-watch from the said flat. The learned Additional
Session Judge found him guilty and convicted the appellant (i) for an offence under Section 302
I.P.C. and sentenced him to death, (ii) for an offence under Section 376 I.P.C. and sentenced him
to imprisonment for life, and (iii) for the offence under Section 380 I.P.C., he was sentenced to
undergo rigorous imprisonment for, five years. The substantive sentences under sections 376 and
380 I.P.C. were ordered to, run concurrently but were to cease to have any effect, in case the
sentence of death for conviction of the appellant under section. 302 I.P.C. Reference for
confirmation of the death sentence was accordingly made to the High Court. The appellant also
preferred an appeal against his conviction and sentence in the High Court. The criminal Appeal

15
AIR 1994 S.C.C. 220.

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filed by the appellant was dismissed and the sentence of death was confirmed by the High Court.
On special leave being granted, the appellant, Dhananjoy Chatterjee, filed an appeal.
There were no eye witnesses of the occurrence and the entire case rested on, circumstantial
evidence in a case based, on circumstantial evidence, the existence of motive assumes
significance. Though absence of motive does not necessarily discredit the prosecution case if the
case stands otherwise established by other conclusive circumstances and the chain of such
evidence is complete and takes one irresistible conclusion about the guilt of the accused. In this
case there was ample evidence on record to show that the appellant had a motive to commit the
alleged crime and therefore the Court rightly found. The accused guilty of aforesaid offences.
Abscondence of the accused was sufficient to support the case against him. The Court, therefore,
rejected the belated and vague plea of alibi which it considered to be only an afterthought and a
plea in despair. The Court held that prosecution has successfully established that the appellant
alone was guilty of committing rape of Hetal and subsequently murdering her.
there were no mitigating circumstances; and the case was undoubtedly “rarest of the rare’’ case
where the sentence of death alone would meet the ends of justice.
This appeal fails and is hereby dismissed. As a last ditch to save his life, the appellant filed a
mercy appeal to the Hon’ble President of India which was rejected by an order of the 164
President dated 4th August 2004. Thereafter, the brother of the appellant filed a petition in the
Supreme Court seeking stay of Dhananjoy execution of death sentence. But the five judge Bench
of the Apex Court refused to review the President’s decision to reject appellant’s mercy petition
Consequently Dhananjoy death sentence was executed in Alipore Central Jail in West Bengal on
14th August 2004 by hanging him till death.
Dhananjoy’s case is undoubtedly a trend setter in the history, of capital punishment in India and
clearly indicates that the principle laid down in Bachchan Singh’s case i.e. rarest of rare case is
best suited to the socio milieu of the Indian society evey in the present 21st century.
According to the Apex Court the following cases would attract the ‘rarest of rare cases’
rule to justify imposition of death sentence
1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse intense and extreme indignation of the community;
2. The murder is committed far a motive which evinces total depravity and meanness;
3. When murder is that of a member of Scheduled Caste or minority community;

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4. When murder is in enormous proportion i.e., several persons are murdered;
5. When the victim of murder is an innocent child or a helpless woman or an old or infirm
person.
The Court ruled that Death penalty should be the only punishment to be awarded in the aforesaid
cases.

CONCLUSION

In India, capital punishment has been Practiced since ancient times. It existed all over the world
since times immemorial, though in various forms. The method of execution may be different but
the punishment is the same taking away the human life by the State. Many reformations took
place in other areas of criminology and penology. But, as far as this cruel punishment is
concerned no change had taken place. Though it is proved time and again that execution only
brutalises the persons involved in the process, but does not reform either the accused or the
potential offender. Most of the countries are suffering from the notion that execution is the only
answer either for oppression of political rivalry or for prevention of crime in the society. When
we look at our national crime statistics death penalty has not proved to be deterrent for doing
offence, the crimes rates are increasing only. The capital punishment is not effective to reduce
crimes in Society.

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