CAPITAL PUNISHMENT

The term capital has been derived from the Latin word ‘capitalis’ which means ‘head' refers to
execution by beheading but execution are carried out by many methods including hanging,
shooting , lethal injection, stoning, electrocution and gassing.

Capital punishment is the hardest of punishment provided in the section 53 of the Indian penal
code 1860, which involves the judicial killing or taking the life of the accused as a forum of
punishment.

“Capital punishment is a legal killing of wrongdoer by the state as punishment for crime is
consider as capital punishment”.

Capital punishment also called the death penalty, it is the execution of an offender sentenced
to death after conviction by a court of law of a criminal offence. Generally it is awarded in
extremely severe cases of murder, rapes, treason etc.

Capital punishment/Death penalty is highest degree of punishment that can be awarded to an

individual under any penal law around the whole world.

As of 2022, 55 countries retain capital punishment, 109 countries have completely abolished
the capital punishment. In 2021, most known executions took place in China, Iran, Egypt, Saudi
Arabia and Syria – in that order.

Country in which death penalty is given – India, Pakistan, china, Taiwan, Saudi Arabia, Egypt,
United state of America, Singapore, Indonesia, Nigeria, Bangladesh, Iran, Japan and other
countries also.

There are several modes of capital punishment in the world-

1.Hanging– This method simply involves the hanging of culprit till death. This form of capital
punishment is applicable in India.
2.Electrocution– In this method, the criminal is tied to a chair and a high voltage current that
can kill a man easily is passed through the body. In addition, it causes organ failure (especially
heart).

3.Tranquilization– This method gives the person a slow but painless death as the toxin
injections are injected into his body that takes up to several hours for the criminal to die.

4.Beheading– Generally, the Arab and Gulf countries use this method. Where they decide the
death sentence by the crime of the person. Furthermore, in this method, they simply cut the
person’s head apart from the body.

5.Stoning– In this the criminal is beaten till death. Also, it is the most painful method of
execution.

6.Shooting– The criminal is either shot in the head or in his/her chest in this method.

HISTORICAL BACKGROUND
As time passes the tribal society developed into social classes the human being created its own
self governed republic, capital punishment became a common response to a variety of crimes
including sexual assault, treason and various milliatry offences. Written rules were created to
notify the people about the penalities they would face for participating in any of these
misdeeds.

As we look in past we found the first penalty law was in code of Hammurabi of Babylon in 18th
century where the 25 different crimes were codified.

During the 17th century BC Draconian code of Athens which made death the only punishment
for all crimes.

During the 10th century AD hanging was the usual method of execution in Britain , in Britain
William the king would not allow persons to be hanged or otherwise execute for any crime
except in times of war. But during 16th century Britain under the Henry VIII executed more than
72,000 people. Some common methods of execution at that time were boiling, burning,
hanging, beheading and drawing and quartering.

During the passage of time the death penalty was increases there were 222 crimes were
punishable by death in Britain including stealing, cutting down a tree.

During the 1823 to 1837 there was decrease in the death penalty out of 222 crimes 100 types
of crime were punishable by death.

Britain influenced America’s use of the death penalty more than any other country. When
European settlers came to the new world, they brought the practice of capital punishment.

There are the 5 Theories of punishment

1. Retributive theory
2. Deterrent theory
3. Preventive theory
4. Expiatory theory
5. Reformative theory

1.Retributive Theory-

The retributive theory is also called revenge theory’.

The origin of retributive theory lies in the primitive notion of vengeance against the wrong-
doer, punishment satisfies the feelings of revenge.

In older times, when a man injured another it was the right of the injured person to take
revenge on the person causing injury. In those days an eye for an eye and a tooth for tooth was
considered to be the law.

In modern penologist thought retribution is not so much considered in the sense of vengeance
but it is the sense of reprobation, punishment must not be greater than the offence deserves.

2.Deterrent Theory-
The purpose of the punishment is to deter the criminal from committing crime in future and to
set an example that others who will commit crime will be punished likewise. By punishing the
wrongdoer an example is set that those who will violate the law will incur the risk of
punishment. In olden times severe punishment and public execution were held mainly with
object to deter others and to set an example that the violation of the law will be punished.

Capital punishment is based on the deterrent theory.

3.Preventive Theory-

The fear of punishment prevents the prospective law breaker from violating the law.

The preventive object of criminal justice is stresses by punishing preliminary crimes like
abetment, conspiracy and attempt etc.

Salmond gives the example on preventive theory as we kill snakes because it is better for us
that they should be out of the world than in it.

In ancient time the offenders was prevented from crime again by disabling him permanently.
For example the punishment for theft was cutting of the hand of the offenders the most
effective kind of punishment is the death penalty. It is awarded only in serious offences like
murder and treason.

4.Expiatory Theory-

According to this theory punishment is necessary for the purification of the offenders.

Manu says “ men who are guilty of crimes, when condemned by the king became pure and go
to heaven in the same way as good and virtuous men go”

Salmond too appears to support this theory when he agrees that punishment blots out crime.

5.Reformative Theory-

This theory is also known as corrective or rehabilitative theory.

Reformation means “ the effort to restore man to society as a better and wiser man and as a
good citizen”.
This theory endeavors to make the criminal harmless by supplying him those things which he
lacks and to cure him of those drawbacks which made him to commit crime.

A man is not born criminal. one commits a crime because he suffers from some disease
therefore criminal needs sympathy of the society and not Punishment for his misdeeds.

The theory admits only such types of punishment which are educative and discipline the
criminal not those which inflicted pain on the offenders . In modern time reformative measures
are adopted in case of juvenile offenders.

DEATH PENALITY IN INDIA

Section 53 of Indian penal code, 1860

Punishments”—The punishment to which offenders are liable under the provision of this
code are:

Firstly-Death;

Secondly- imprisonment for life.

Thirdly-Repealed

Fourthly- imprisonment, which is of two description,namely—

• Rigorous, that is, with hard labour;

• Simple

Fifthly- Forfeiture of property.

Sixthly- fine.
Capital punishment is the hardest of punishment provided in the section 53 of the Indian penal
code, which involves the judicial killing or taking the life of the accused as a forum of
punishment.

Capital punishment also called the death penalty, it is the execution of an offender sentenced
to death after conviction by a court of law of a criminal offence.

It is the highest penalty awardable to an accused, generally it is awarded in extremely severe

cases of murder, drugs trafficking rapes, treason, etc.

Capital punishment in India is based on deterrent theory.

The purpose of giving death penalty is to set an example that others who will commit crime will
be punished with likewise. By punishing the wrongdoer an example is set that those who will
violate the law will incur the risk of punishment.

In olden times severe punishment and public execution were held mainly with the object to
deter others to commit crime and also to set an example that violation of law will be punished.
Punishment creates fear in the mind of the wrongdoer and deter him from committing crime in
future and deters others prospective criminals from committing the crime.

The chief purpose of capital punishment is the protection and maintenance of individual
interest in the society by determine the evil minded persons.

The capital punishment in India is given by hanging the culprits till death.

In the beginning in India, under the code of criminal procedure, 1898 death sentence was a rule
and life imprisonment as exception in capital offence and whenever the court preferred to
award a sentence lesser than death in such offences it was required under section 376(5) of the
crpc to record it’s reason in writing. Later on the amendment in the 367(5) of the crpc 1898 was
omitted and thus thereafter the court became free to award either death sentence or life
imprisonment.
Now according to the Crpc 1973 and in section 354(3) provides that in case of death sentence
special reasons are to be stated.Now imprisonment for murder is rule and capital sentence an
exception.

According to officials number, there have been 720 execution in India since 1947.

The number of prisoner on death row at the end of 2021 stood at 488, among all the state
Uttar Pradesh having the highest number at 86.

There is a great controversy and debate over the constitutional validity of death punishment in
India, it would be wrong to abolish death penalty unless there is a clearly overwhelming public
sentiment in favouring of change.

The Death penalty is given when the circumstances are followed which is given below two
points-

1. Aggravating circumstances
2. Mitigating circumstances

A .Aggravating circumstances –

1)The offence relating of commission of hienous crimes like murder, rape, armed dacoity,
kidnapping for ransom by accused and having prior criminal records.

2) The offences was committed with intent to create fear in the public at large and was
committed in a public by any hazardous object or substance

3) The offence was committed by a person in lawful custody or close relative.

4) making an attempt to murder an entire family or members of a particular caste or

community.

5) when there is cold blooded murder without provocation.

6) when the offence is committed so brutally that pricks or shakes the conscience of the
society.
7) when victim is innocent helpless or an person who relies upon the trust relationship and
social norms, like child, woman, daughter or a niece staying with father/ uncle and is inflicted
with crime with such trusted person.

B.Mitigating circumstances

1) When the accused is in existence of mental or emotional disturbance or extreme

provocation.

2) When the age of the accused is to young.

3) Lack of evidence to prove the guilty of accused under a heinous crime.

4) Where it is absolutely unsafe to rely upon testimony of a sole eye witness through the
prosecution has brought home the guilt of the accused.

The court should carefully balance the aggravating and mitigating circumstances before
awarding the death sentence.

Death penalty under laws other than the penal code-

1. The Indian Air force act, 1950.

2. The Army act, 1950.
3. The Navy Act, 1950.
4. The National security Guards act, 1986 and in indo- Tibetan border police act, 1992
prescribed the death sentence as an alternative punishment for defined offences
committed by the members of the armed forces.
5. The commission of sati prevention act 1987.
6. The Narcotic Drugs and psychotropic substance act 1985.
7. The schedule caste and schedule Tribe prevention of attrocities act 1989

2.Imprisonment for life

 The imprisonment of life means imprisonment for whole of the remaining period of the
convicted persons natural life without any formal remission by any appropriate
government, life imprisonment cannot be treated for a define period.

There is no provision either in IPC or Crpc whereby life imprisonment could be treated as 14
years or 20 years without there being a formal remission by the appropriate government.

3.(A) Rigorous imprisonment

Rigorous imprisonment is a type of imprisonment under which a prisoner or an accused

convicted for a crime is kept in prison and they have to do hard labour such as agriculture,
carpentry, drawing , watering plant etc.

Imposition of hard labour or prisoners undergoing Rigorous imprisonment is legal.

It was further observed by the court that it is imperative that the prisoner should be paid
equitable wages for the work done by them.

B) Simple imprisonment

It is a type of imprisonment where an accused convicted of a crime is kept in prison without

any hard labour. They are required to do only light duties, it is awarded for simple or lighter
offence such as defamation.

4)Forfeiture of property

Forfeiture of property means the loss of property of accused under this punishment, the
state seizes the property of a criminal. The property Forfeiture may be movable or
immovable.

5) Fine

The court may impose the punishment of time as a sole imprisonment or as an alternative for
imprisonment or in addition to the imprisonment. It depends upon the court to decide whether
imprisonment or fine both are to be awarded in a particular case. According to section 64 of
Indian penal code, 1860 if a person fails to give fine the court may order for the imprisonment.
 Case laws
Jagmohan singh v state of Uttar Pradesh (A.I.R. 1973, SC 947)

In this case, chhotey Singh was accused of killing the accused uncle but he had been later
acquitted by the High Court after 6 years ago. Year later there has been some quarrel between
jagmohan singh along with his cousin Jagbir singh against chhotey Singh over the right of
irrigation of field, but the dispute had gotten settled, however the next day jagmohan singh
armed with pistol and jagbir singh carrying a lathi had ambushed chhotey Singh in his bajra field
and during the chaos that chhotey Singh has gotten shot in the back that had lead to the death
of chhotey Singh. After analysing the facts of the case the session judge awarded death
sentence.

Jagmohan singh make a appeal in supreme court and it was argued that death penalty was
unconstitutional and hence invalid as a mode of punishment, it was also contended that it
violates article 19, 14, and 21 of the Indian constitution.

The supreme court did not agree with any of the contention and held the death penalty as
valid. The deprivation of life is constitutionally permissible if that is done according to the
procedure established by law.

Supreme court of India has been consistently fovouring the retention of death penalty
especially in case of premeditated brutal and cold blooded murders.

Mohinder Singh v Delhi Administration (A.I.R 1973 SC 697)

In this case the appellant being dissatisfied with the award made by the arbitration regarding
distribution of wages between him and his partner, he killed the arbitrator. The medical report
revealed that nearly sixteen injuries were found on the dead body of the deceased which in the
ordinary course would have been sufficient to cause the death of a person.
It was held by the supreme court that the numbers of injuries inflicted on the body of the
deceased show that the appellant had acted with violence and brutality on the unarmed and
defenseless person. All these circumstances clearly show that murder committed by appellant
was brutal in nature under the circumstances the award of death sentence was perfectly
justified.

Justice Krishna Iyer “ since every saint had a past and every sinner a future.

Bachan Singh v state of Punjab ( A.I.R. 1980 SC 898)

(Rarest of rare doctrine)

In this case Bachan Singh was convicted for his wife murder and was sentenced for life
imprisonment, after sometime he was released and he was living with his cousin Hukum Singh
and his family by this Hukum Singh’s wife and his son objected the appellant living in their
house. A few days prior to the occurrence of the midnight Vidya Bai was awakened by alarm
and saw the appellant inflicting axe blow on her sisters Beeran Bai face on the attempt of
rescue Vidya Bai also got injured.

later Bachan Singh was tried and convicted and sentenced to death under section 302 of the
Indian penal code,1860.

Bachan singh make an appeal in supreme court that his fundamental right under article 14, 19,
21 are violates. It was held by the supreme court that the fundamental rights under article
19(1) are not absolute rights.

The supreme court by majority of 3:1 reaffirmed it’s earlier decision and held that the provision
of death penalty as an alternative punishment for murder under section 302 of IPC insofar it is
neither unreasonable nor it is against the public interest. It neither violates the letter nor the
ethos of Article 19 of the constitution of India. It is constitutionally valid. Exercise of discretion
under section 354(3) of the crpc 1973 should be exceptional and grave circumstances and
imposition of death sentence should be in rarest of the rare case.

The doctrine of rarest of the rare case is derived from the Bachan singh v state of Punjab case.
 Macchi Singh and others v state of Punjab(A.I.R 1983 SC 957)

In this case, on the night between August 12 and 13, seventeen murder and three injuries took
place in the series of 5 incidents at 5 different villages within the vicinity of each other in
punjab. The tragic incident was took place because of a family feud between the accused and
Amar Singh and his sister Piaro Bai.

After which Macchi Singh and some of his close relatives were arrested all of were put on trial
for murder and for breaching law and order. On the trial 9 men had been sentenced to life in
prison while Macchi Singh and three others were awarded death sentence.

On the appeal It was held by the supreme court held that the death penalty should not be
overturned as though the crimes had been committed to settle a dispute said crime had been
violent, destructive and violent enough to grant the death penalty (rarest of rare case).

Maqbool bhat case

Maqbool bhat was a kashmiri separatist leader who migrated to Pakistan and founded the
millitant group National liberation front( NLF) at present which is known as Jammu Kashmir
liberation front (JKLF)

Bhat was arrested and tried for the murder of the Indian CID officer and in August 6, 1968 bhat
was sentenced to death by hanging. However on December 2, 1968 he was managed to escape
from the jail along with 2 inmates and reached Pakistan where he questioned the Pakistani
judicial establishment after being convicted and finally cross back into Kashmir before getting
arrested for a last time. In 1976 Bhat was arrested in Srinagar while attempting to rob a bank his
previous death sentence was still valid and he made a clemency appeal to the president of India
Shri Giani zail Singh for 9 years no decision was taken regarding Bhats clemency appeal then on
3rd February 1984 Ravindra Hareshwar Mhatre, an Indian diplomat was abducted from his house
in Birmingham, United Kingdom. Kashmir Liberation Army (KLA), the then militant wing of
Jammu & Kashmir Liberation Front (JKLF) claimed its responsibility. The group demanded
Maqbool Bhat in exchange and besides 1 million pounds as ransom. On 5th February, Mhatre
was shot dead upon direct orders from its head. Immediately after Mhatre’s killing, a high-level
meeting was called in Delhi which was presided by Indira Gandhi. In the meeting, it was decided
that Maqbool Bhat should be hanged. On 11th February 1984 he was hanged in Tihar jail Delhi.

Mohammed Ajmal Amir Kasab v. State of Maharashtra (2012)

Kasab with his two other member entered Indian boundaries illegally with possession in arms
and weapons, conspired to kill many people and thereby at the end killing many people.

On November 26, 10 terrorist attacked various places in Mumbai thereby terrorising many
people. It is in relation to Mumbai terrorist attack on Taj Mahal on 26 November 2008. This
attack results in murder of 166 people and grievously hurting 238 people. It is one of the black
days in the history of India. Its famously known as 26/11 attack.

Mohammad Ajmal Amir Kasab, a Pakistani Nationalist has earned himself five death penalties
along with equal number of imprisonments for committing various number of crime which were
grotesque in the city of Mumbai. Some of the major charges against Kasab were, conspiracy to
wage war against government, in possession of various arms to wage a war against the
government, waging and abetting to wage a war against the government, committing a terrorist
attack, criminal conspiracy to commit the murder, committing murder against many people,
abduction to murder, robbery and dacoity to cause grievous hurt against people. The people who
were killed includes police officers, people, and many more.

Although the prosecution claimed Kasab had confessed, Kasab’s attorneys argued that the claim
was false. In March 2009, a trial for him began. In May 2010, Kasab received the death sentence
from a special court. On May 7, trial judge ML Tahaliyani said, “He should be hanged by the
neck until he is dead,” adding that he had lost his right to “humanitarian treatment,” despite
Kasab’s attorney pleading for mercy and claiming that his client had been brainwashed by a
terrorist group (Lashkar-e-Taiba) and could be rehabilitated. Kasab appealed the decision, but in
February 2011, the Mumbai High Court rejected it. In July 2011, Kasab appealed the death
sentence to the Supreme Court.The Supreme Court rejected his appeal and upheld the Trial
Court’s decision to execute him on August 29, 2012. The mercy petition he had submitted was
denied by President Pranab Mukherjee as well. Ajmal Kasab was put to death by hanging on
November 21, 2012, in Pune’s Yerwada Jail.
State vs Mohd. Afzal And Ors. (Parliament attack case)

This case is also popularly known as the Parliament attack case. It is one of those cases which is
remembered in history where the attack was planned and executed to cause damage to the state’s
sovereignty.

Five heavily armed men entered the Parliament on 13th December 2001 to storm up the
Parliament complex when it was in session. They entered the Parliament with fake I-Card and in
a car with a fake sticker pass of Home Minister on it. This attempt led to a gun battle between the
then unidentified five persons and the security guards for 30 minutes. All five intruders were shot
dead in the fire exchange between them and the security forces. This resulted in the death of 9
persons ( 8 security men and 1 gardener) and 16 people were injured. The suspicion was raised
towards the Jaish-e-Mohammed, a terrorist organization banned under section 35 of the
Unlawful Activities (Prevention) Act, 1967. Four names which were Mohd. Afzal, Shaukat
Hussain, S.A.R. Geelani and Afsan Guru (Navjot Sandhu) came up during the investigation
which suggested that these four men were involved with the above-named terrorist organisation
and were responsible for the attack on the Parliament. Under section 173 of CrPC, a report by the
investigation agency was filed on the four accused. They were tried by the Special Court under
various provisions of the Indian Penal Code 1860, the Prevention of Terrorism Act 2002 and the
Explosive Substances Act.

The special court executed Guru, Shaukat, and Gilani on December 18, 2002. Shaukat’s wife
Afsan received 5-year imprisonment after being found guilty of concealing the plot. Following
an appeal, the Delhi High Court upheld Guru and Shaukat’s convictions in 2003. On October 29,
2003, the High Court found SAR Geelani and Afsan Guru, Shaukat Husain’s husband, not
accountable for the allegations made against them. On August 24, 2005, the Supreme Court
upheld Afzal Guru’s death sentence while commuting his cousin Shaukat’s to ten years in prison.
Although Guru filed a review petition with the Supreme Court, the Court ultimately decided to
reject it in September 2005.

Yakub Memon v. State of Maharashtra (2013)

In this case, Yakub Memon, the brother of Tiger Memon, was a prime suspect in the bombings.
Yakub Memon, a chartered accountant by profession, was charged with taking part in the
Bombay blast case, which was organised by Dawood Ibrahim and Tiger Memon. The explosions
caused 257 casualties. Yakub Memon was arrested on August 5, 1994, at the New Delhi Railway
Station.

He was found guilty of murder, assisting terrorist activity, and criminal conspiracy to commit
terrorist acts. Additionally, he was charged with illegally transporting and possessing firearms
and ammunition, and the Trial Court sentenced him to death under the Terrorist and Disruptive
Activities (Prevention) Act (TADA), 1987.

The death sentence for Memon was upheld by the Supreme Court despite Memon’s request for a
revision. The Maharashtra government executed Yakub Memon on July 30, 2015, the day of his
death sentence. On May 22, 2015, Memon submitted a curative petition to the Supreme Court.
The same was rejected on July 21, 2015. Additionally, he requested a stay of execution through a
mercy petition, which the Governor of Maharashtra rejected. On July 30, 2015, Yakub Memon
was executed at Nagpur Central Jail.

In October 2006, Guru’s wife submitted an appeal for mercy to the then-President of India,
A.P.J. Abdul Kalam. On February 3, 2013, the President rejected Afzal Guru’s plea for mercy.
Afzal Guru was hanged in Delhi’s Tihar Jail on February 9, 2013.

Shabnam case Amroha

April 2008 familicide in State of Uttar Pradesh by Shabnam and her lover Saleem, who murdered
seven members of Shabnam’s family by sedating six of them and then hacking them to death;If
executed, she will be the first woman in independent India to be hanged for a crime.

Section 366 of Crpc provides that once the session court award the death sentence then the
court has to submit it to high court for confirmation this means to provide a second level of
review of the evidence so the death penalty afresh by a higher judicial forum the high court
after review may over rule or continue the death sentence. If a woman sentenced to death is
found to be pregnant the high court shall order the execution of the sentence to be postponed
and may if think fit commute the sentence to imprisonment for life.

Commutation of Death sentence by the state or central government

Section 54- ‘in every case in which sentence of death shall have been passed [the appropriate
government] may without the consent of the offender, commute the punishment for any other
punishment provided by this code’

Section 55 of the Indian penal code itself provides the power to the state or central government
to commute Without the consent of the offender death sentence for any other punishment.

The power of the appropriate government to commute the sentence is co extensive to the
powers under a section 433 of the crpc.

Pardoning power of President and Governor

The pardoning power of President and Governor has been given under Article 72 and 161 of
the Indian constitution.

1. Pardon – complete absolves the guilt of the offenders.

2. Reprieve- Temporary suspension of death sentence.
3. Respite- Awarding a lesser punishment or some special group .
4. Commutation- The exchange of the form of punishment for another.
5. Remission- Reduction of the amount of sentence without changing its characters.

Governor may pardon, reprieve, respite or remission of punishment but they doesn’t have
power regarding the death sentence.

The power under article 72 and 161 of the constitution is absolute and cannot be fettered
by any statutory provision, but the president or Governor as the case may be are obliged to
act on the advice of the council of ministers and to exercise the power reasonably and
rationally.
Conclusion-
Death penalty is the highest punishment in India which is given in the rarest of rare case.
According to supreme court capital punishment does not offend Article 14, 19, and 21 of the
Indian constitution and is therefore not unconstitutional because there is a provision procedure
established by the law. But the death penalty may be awarded only in exceptional cases where
the collective conscience of the community treats it abhorrent. At the same time there should
not be unreasonable delay in execution of death sentence.

Keeping in view the condition prevailing in the Indian society and the increase in criminality the
time is not yet ripe to justify abolition of death penalty.