A PROJECT/ASSIGNMENT

ON

CAPITAL PUNISHMENT SHOULD BE RETAIN OR ABOLISH IT.

LEGAL ANALYSIS

PROJECT/ASSIGNMENT SUBMITTED

IN PARTIAL FULLFILLMENT OF ODD SEMESTER INTERNAL

EVALUATION

SUBMITTED TO

ICFAI LAW SCHOOL

ICFAI UNIVERSITY DEHRADUN

ACADEMIC SESSION 2019-20

Submitted to: Mr. ABHISHEK RAJ

Subject In charge: INDIAN PENAL CODE

Submitted by: SHASHANK KUMAR SINHA

Course: LL.B 1st Year

Enrollment no: 19FLUCDDN01019

 ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude Mr. ABHISHEK RAJ, at ICFAI
UNIVERSITY for giving me a good guideline for assignment of INDIAN PENAL CODE. I
would also like expand my gratitude to all those who have directly and indirectly guided me
in finalizing this project within time frame.

Many people, especially my classmates have made valuable comment suggestions on my

paper which gave me an inspiration to improve the quality of the assignment.
INTRODUCTION :

Law is a body of rules laid down for determining rights and obligations of individuals and,
therefore, law is an instrument to regulate the competing interest in the society. Other than
this, maintaining order in the society is another goal of law, especially criminal law.1

INDIAN PENAL CODE 1872 is criminal code of India. Indian Penal Code is substantive
law. The objective of IPC is to provide a general code India. At present 511 sections are
available in Indian Penal Code.

Capital punishment, whereas pretending to support respect for human life does in fact, tend to
destroy it. Death penalty is generally resorted to in serious offences like murder. The purpose
to serve death sentence is that it discourages to the utmost degree criminal behaviour on the
part of those who are aware of the existence and horror of the painful mode of treating
criminals. Death penalty is a strong deterrent.
DETERRRENT THEORY :

In this theory the purpose of the punishment is to prevent the criminal from committing crime
in future and try to set an example for others that who will commit crime will be punished
same as. By punishing the offender, those who will violate the law will create the risk of
punishment. The general idea of this theory is that punishment will thus curb the criminal
activities of the possible offenders. In old times severe punishments and public executions
were held mainly with the object to prevent others and create an example that violation of law
will be punished. Punishment serves as a deterrence in two ways. It develops fear in the mind
of wrong-doer and deter him from committing crime. The main objective of punishment is
the protection and maintenance of individual‘s interest in the society by deterring the evil
minded persons. Deterrent as an aim of punishment. Capital punishment arises from the
deterrent theory.

Capital punishment in India

Capital punishment is a legal death penalty in India. It has been carried out in five instances
since 1995, since 1991, a total of twenty-six executions have taken place in India to 2015.

Section 303 of Indian Penal Code ‗Punishment for murder by life-convict. ‗Whoever, being
under sentence of imprisonment for life, commits murder, shall be punished with death.‘2

The Supreme Court in Mithu vs. State of Punjab struck down Section 303 of the Indian Penal
Code, which provided for a compulsory death sentence for offenders who committed murder
while serving a life imprisonment. Official government statistics give a record of 52 people
had been executed since Independence. Research published by National Law University,
Delhi on death row convicts had found that in India, since 2000, 1,617 prisoners sentenced to
death by courts trials. Capital punishment was confirmed but only in 71 cases. NLU Delhi
confirmed 755 executions in India since 1947. National Law University, 1,414 prisoners were
studied by NLU Delhi, who were executed since independence. According to Law
Commission of India‘s report (1967), 1410 capital punishment had been awarded in India
from 1953-63.

In December 2007, India voted against a resolution of a moratorium on the capital

punishment which was issued by United Nations General Assembly. In November 2012,
India again upheld its stand on death sentence by voting against the United Nations General
Assembly draft resolution seeking to end of the capital punishment globally.
The Law Commission of India submitted a report to the government which stated the
abolition of death sentence for all crimes in India, excepting the crime of waging war against
the nation or for terrorism-related offences. The report clarified several factors to reason that
to abolishing the capital punishment, including its abolition by 141 other nations.

History

In colonial India, death was provided as one of the most valuable punishments in the Indian
Penal Code, 1860, which listed a number of capital crimes. It remained in effect after
independence in 1947. The first capital punishment in Independent India was given to
Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15
November 1949.

Bachan Singh vs. State of Punjab 1980 SC 898

The Constitution Bench judgment of Supreme Court of India in Bachan Singh vs. State of
Punjab (1980) (2 SCC 684) made it very clear that Capital punishment in India can be given
only in rarest of rare cases. This judgement was in line with the previous verdicts in
Jagmohan Singh vs. State of Uttar Pradesh (1973), and then in Rajendra Prasad vs. State of
Uttar Pradesh (1979). The Supreme Court of India ruled that the death penalty should be
imposed only in "the rarest of rare cases. "While stating that honour killings fall within the
"rarest of the rare" category, Court has recommended the death penalty be extended to those
found guilty of committing "honour killings", which deserve to be a capital crime. The
Supreme Court also recommended death sentences to be imposed on police officials who
commit police brutality in the form of encounter killings.3

In recent years, the death penalty has been imposed under new anti-terrorism legislation for
people convicted of terrorist activities. The Indian Government passed an ordinance which
applied the capital punishment in cases of rape that leads to death or leaves the victim in a
"persistent vegetative state". In response to public outcry over a brutal gang rape in Delhi,
The death penalty can also be awarded to repeat rape offenders under the Criminal Law
(Amendment) Act, 2013.

Curative Petition

The concept of Curative petition was evolved by the Supreme Court of India in the case of
Rupa Ashok Hurra vs. Ashok Hurra and Anr.1 Where the question was whether an aggrieved
person is entitled to any relief against the final judgement/order of the Supreme Court, after
dismissal of a review petition. The Supreme Court in the said case held that to prevent abuse
of its process and to cure gross miscarriage of justice, it may reconsider its judgements in
exercise of its inherent powers.4

Capital offences

Section under IPC or other law Nature of crime

120B of IPC Being a party to a criminal conspiracy to commit a capital offence

121 of IPC War against Indian government

132 of IPC Abetting a mutiny in the armed forces (if a mutiny occurs as a result),
engaging in mutiny

194 of IPC Giving or fabricating false evidence with intent to procure a conviction
of a capital offence

302, 303 of IPC Murder

305 of IPC Abetting the suicide of a minor

31A of the Drug trafficking in cases of repeat offences

(Narcotic Drugs and Psychotropic Substances Act)

376AB of IPC; 42 of Protection of Children from Sexual Offences Act, 2012 (POCSO) and
The Criminal Law (Amendment) Act, 2018 Rape and Gangrape of a woman under 12 years
of age.

396 of IPC Dacoity with murder – in cases where a group of five or more individuals
commit dacoity and one of them commits murder in the course of that crime, all members of
the group are liable for the death penalty.

376A of IPC and Criminal Law (Amendment) Act, 2013. Rape if the perpetrator inflicts
injuries that result in the victim's death or incapacitation in a persistent vegetative state, or is
a repeat offender.
Power of the President

The present day constitutional clemency powers of the President and Governors originate
from the Government of India Act 1935 but, unlike the Governor-General, the President and
Governors in independent India do not have any prerogative clemency powers.

Execution of death sentence

The execution of death sentence in India is carried out by hanging by the neck until death.

The Code of Criminal Procedure (1898) called for the method of execution to be hanging.
Section 354(5) of the above procedure reads as "When any person is sentenced to death, the
sentence shall direct that the person be hanged by the neck till the person is dead." The
hanging method is long drop, the method devised by William Marwood in Britain. The
person has their neck snapped as they fall through the trapdoor and is left hanging until they
are dead.5

The Army Act, The Navy Act and The Air Force Act also prescribe for the execution of the
capital punishment. Section 34 of the Air Force Act, 1950 empowers the court martial to
impose the capital punishment for the offences mentioned in section 34(a) to (o) of The Air
Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-

"In awarding a sentence of death, a court-martial shall, in its discretion, direct that the
offender shall suffer death by being hanged by the neck until he be dead or shall suffer death
by being shot to death."6

This provides for the discretion of the Court Martial to either provide for the execution of the
death sentence by hanging or by being shot to death. The Army Act, 1950, and The Navy
Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950.

Death penalty in Independent India

According to Amnesty International figures at least 100 people in 2007, 40 in 2006, 77 in

2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not executed).

About 26 mercy petitions are pending before the president, some of them from 1992. These
include those of Khalistan Liberation Force terrorist Devinder Pal Singh Bhullar, the cases of
slain forest bandit Veerappan's four associates—Simon, Gnanaprakasham, Meesekar
Madaiah and Bilvendran—for killing 21 policemen in 1993; and Praveen Kumar for killing
four members of his family in Mangalore in 1994.7

In June 2012 it became known that Indian president Pratibha Patil, near the end of her five-
year term as president, commuted the death sentence of as many as 35 convicts to life
imprisonment, including four on the same day (2 June), which created a storm of protest.

Especially since an infamous 2012 Delhi gang rape case and later crimes, there have been
calls for the introduction of the corporal punishment for rapists and molesters.

The only two women in India on death row, whose mercy pleas were rejected by the
President after the Supreme Court of India confirmed their death sentence are Seema Gavit
and Renuka Shinde.

On 27 April 1995, Auto Shankar was hanged in Salem, Tamil Nadu. On 14 August 2004,
Dhananjoy Chatterjee was hanged for the murder (following a rape) of 14-year-old Hetal
Parekh at her apartment residence in Bhowanipur on 5 March 1990. Chatterjee, whose mercy
plea was rejected on 4 August 2004, was kept at Alipore Central Jail for nearly 14 years.8

On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war on
India, possessing explosives and other charges. On 6 May 2010 the same trial court sentenced
him to death on four counts and to a life sentence on five other counts. Kasab was sentenced
to death for attacking Mumbai and killing 166 people on 26 November 2008 along with nine
other Pakistani terrorists. He was found guilty of 80 offences, including waging war against
the nation, which is punishable by death. Kasab's death sentence was upheld by the Bombay
High Court on 21 February 2011. and by the Supreme Court on 29 August 2012. His mercy
plea was rejected by the president on 5 November and the same was communicated to him on
12 November. On 21 November 2012, Kasab was hanged in the Yerwada Central Jail in
Pune.9

Afzal Guru was convicted of conspiracy in connection with the 2001 Indian Parliament attack
and was sentenced to death. The Supreme Court of India upheld the sentence, ruling that the
attack "shocked the conscience of the society at large." Afzal was scheduled to be executed
on 20 October 2006, but the sentence was stayed.[citation needed] He was hanged on 9
February 2013 at Delhi's Tihar Central Jail.10
Yakub Memon, convicted of 1993 Bombay bombings, was executed by hanging in Nagpur
Central Jail at around 6:30 am IST on 30 July 2015. On 21 March 2013 the Supreme Court
confirmed Memon's conviction and death sentence for conspiracy through financing the
attacks. On 30 July 2013 the Supreme Court bench headed by Chief Justice P. Sathasivam,
Justice B. S. Chauhan and Justice Prafulla Chandra Pant rejected Memon's application for an
oral hearing and dismissed his review petition by circulation. Indian President Pranab
Mukherjee rejected Memon's petition for clemency on 11 April 2014. Memon then filed a
curative petition to the Supreme Court, which was rejected on 21 July 2015. He became the
first convict in 31 years to be hanged in Nagpur Central Jail and the fourth in India since
2004.11

ARGUEMENT –

IN FAVOUR OF CAPITAL PUNISHMENT -

Supporters of the death penalty believe that those who commit murder, because they have
taken the life of another, have forfeited their own right to life. Furthermore, they believe,
capital punishment is a just form of retribution, expressing and reinforcing the moral
indignation not only of the victim‘s relatives but of law-abiding citizens in general. By
contrast, opponents of capital punishment, following the writings of Cesare Beccaria (in
particular On Crimes and Punishments [1764]), argue that, by legitimizing the very behaviour
that the law seeks to repress—killing—capital punishment is counterproductive in the moral
message it conveys. Moreover, they urge, when it is used for lesser crimes, capital
punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists
also claim that capital punishment violates the condemned person‘s right to life and is
fundamentally inhuman and degrading.12

Although death was prescribed for crimes in many sacred religious documents and
historically was practiced widely with the support of religious hierarchies, today there is no
agreement among religious faiths, or among denominations or sects within them, on the
morality of capital punishment. Beginning in the last half of the 20th century, increasing
numbers of religious leaders—particularly within Judaism and Roman Catholicism—
campaigned against it. Capital punishment was abolished by the state of Israel for all offenses
except treason and crimes against humanity, and Pope John Paul II condemned it as ―cruel
and unnecessary.‖13
Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on
potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint.
Opponents, however, point to research that generally has demonstrated that the death penalty
is not a more effective deterrent than the alternative sanction of life or long-term
imprisonment.14

IN AGAINST OF CAPITAL PUNISHMENT –

Everyone has an inalienable human right to life, even those who commit murder; sentencing
a person to death and executing them violates that right.15

This is very similar to the 'value of life' argument, but approached from the perspective of
human rights. The counter-argument is that a person can, by their actions, forfeit human
rights, and that murderers forfeit their right to life. Another example will make this clear - a
person forfeits their right to life if they start a murderous attack and the only way the victim
can save their own life is by killing the attacker.16

The medieval philosopher and theologian Thomas Aquinas made this point very clearly:

Therefore if any man is dangerous to the community and is subverting it by some sin, the
treatment to be commended is his execution in order to preserve the common good...
Therefore to kill a man who retains his natural worthiness is intrinsically evil, although it may
be justifiable to kill a sinner just as it is to kill a beast, for, as Aristotle points out, an evil man
is worse than a beast and more harmful.17

Aquinas is saying that certain contexts change a bad act (killing) into a good act (killing to
repair the violation of justice done by the person killed, and killing a person who has forfeited
their natural worthiness by killing).18

It's argued that retribution is used in a unique way in the case of the death penalty. Crimes
other than murder do not receive a punishment that mimics the crime - for example rapists are
not punished by sexual assault, and people guilty of assault are not ceremonially beaten up.
Camus and Dostoevsky argued that the retribution in the case of the death penalty was not
fair, because the anticipatory suffering of the criminal before execution would probably out-
weigh the anticipatory suffering of the victim of their crime. Others argue that the retribution
argument is flawed because the death penalty delivers a 'double punishment'; that of the
execution and the preceding wait, and this is a mismatch to the crime.19
CONCLUSION –

There also are disputes about whether death sentence can be governed in a manner consistent
with justice. Those who support capital punishment believe that it is possible to fashion laws
and methods that ensure that only those who are really justifiable of death are executed. By
contrast, opponents maintain that the historical application of death penalty shows that any
attempt to single out certain kinds of crime as deserving of death will unsurprisingly be
illogical and discriminatory. They also point to other factors that they think impede the
possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and
religious minorities often do not have access to good legal assistance, that racial prejudice
motivates predominantly white juries in capital cases to convict black and other non-white
defendants in disproportionate numbers, and that, because errors are inevitable even in a
well-run criminal justice system, some people will be executed for crimes they did not
commit. Finally, they argue that, because the appeals process for death sentences is
protracted, those condemned to death are often cruelly forced to endure long periods of
uncertainty about their fate.
REFERENCE –

S. N. MISHRA, INDIAN PENAL CODE

RATANLAL DHIRAJLAL, INDIAN PENAL CODE

WEBLIOGRAPHY-

1 www.britanicca.com

2 www.lawoctopus.com

3 www.wikipeadia.com

4 www.wikipeadia.com

5 www.wikipeadia.com

6 www.britanicca.com

7 www.mondaq.com

8 www.mondaq.com

9 www.lawoctopus.com

10 www.indiakanoon.com

11 www.wikipeadia.com

12 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
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13 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
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14 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
21st-century
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15 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
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16 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
21st-century

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17 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
21st-century

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18 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
21st-century

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19 https://www.britannica.com/topic/capital-punishment/Capital-punishment-in-the-early-
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