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An assignment on the topic –

An Analysis of Judgements and Provisions Relating to

Capital Punishment

Submitted by: Sudeep Bose (2341803014)

Batch: 2023-2026 [3yr LLB(H)]

Semester: 2nd Semester

Subject: Indian Penal Code=II

Submitted to: Ms. Sukriti Sah

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Sl. no. Topic Page No.

1 Introduction to Capital Punishment 3

2 Historical Overview of Capital Punishment in India 3

3 Legal Provisions Relating to Death Penalty 4

4 Judgements by Supreme Court 5

5 Arguments in Favour of and Against Capital 9

Punishment

6 Mercy Petitions and Clemency in India 10

7 Conclusion 11
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1. An Introduction to Capital Punishment:

The Code of King Hammurabi of Babylon dates back to the eighteenth century
B.C., when the death penalty was first implemented. The death penalty was made
official for 25 distinct offenses under this antiquated legal rule.
The Draconian Code of Athens mandated the death sentence for a number of
different offenses. Among the punishments were drowning, beatings to death,
burning alive, impalementing, and beatings to death.
In Britain by the tenth century A.D., hanging had become the norm for capital
punishment. However, hanging was only used in times of war under William the
Conqueror's rule.
As time went on, even Britain stopped applying the death penalty. Currently, the
death penalty is neither used nor abolished in more than 150 countries.

Q. What is the death penalty?

A. The state-sanctioned execution of an individual as a punishment for a
significant crime is referred to as the capital punishment, commonly known as
the death penalty. The following offenses usually carry the death penalty: murder,
terrorism, espionage, and serious drug trafficking.
In the past, a number of techniques have been employed, including gas chamber,
firing squad, electrocution, hanging, and lethal injection. various jurisdictions
have various preferences for methods.

2. Historical Overview of Capital Punishment in India:

1. Ancient and Medieval India:
Capital punishment dates back to ancient and medieval India. Various modes of
execution were used in different areas and time periods.
The Arthashastra, an ancient Indian book on statecraft and government attributed
to Chanakya (about 300 BCE), discusses the death punishment for specific acts.
During the medieval period, monarchs such as the Mughals and Marathas
imposed the death penalty for crimes such as murder, treason, and insurrection.
2. Colonial Era:
The British colonial government had a considerable impact on India's legal
system, notably its stance to capital punishment.
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The Indian Penal Code (IPC) of 1861, created during British control, maintains
the death sentence for actions such as murder, dacoity (violent robbery), and
waging war against the state.
3. Post Independence India:
Following India's independence in 1947, the IPC remained virtually unchanged,
with capital penalty still in place.
The death sentence was also allowed under the Code of Criminal Procedure
(CrPC) and several state statutes.
Nathuram Godse (Mahatma Gandhi's murderer) was executed in 1949, among
other notable events from this time period.
4. Legal Reforms and Abolition Movements:
Legal Reforms and Abolition Movements: Over time, there have been discussions
over the efficacy, morality, and fairness of capital punishment. In the Bachan
Singh case in 1980, India's Supreme Court determined that the death penalty
should be used only in the "rarest of rare" circumstances. Even Nevertheless,
executions continued, including those of Rajiv Gandhi's killers in 2006.
5. Recent Trends:
Recent Trends: In recent years, there has been a push for abolition. Some states
have abolished the death sentence for specific offences. Public opinion and legal
discourse are increasingly questioning the necessity of capital punishment.
However, it remains a sensitive issue, with arguments centred on justice,
deterrence, and human rights.1

3. Legal Provisions Relating to Death Penalty:

In India, capital punishment (also known as the death punishment) is legal for a
small range of crimes, including murder, rape, terrorism, and treason. The Indian
Penal Code (IPC) governs the legal framework for capital punishment in India,
outlining the circumstances under which it might be awarded. Some key
provisions relating to death penalty are:
1. Section 354 (3) of the Code of Criminal Procedure (CrPC), 1973: When a
conviction is for an offence punished by death or, in the alternative, life
imprisonment or imprisonment for a length of years, the judgement must indicate

1
https://blog.finology.in/Legal-news/capital-punishment-in-india
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the grounds for the sentence imposed. The judgement must provide particular
reasons for a death sentence.
2. Offenses under the Indian Penal Code (IPC), 1860, that award the death
penalty:
• Murder (Sections 302 and 303): Intentional killing of another person.
• Abetting suicide of a minor (Section 305): Encouraging or aiding a minor
to commit suicide.
• Giving or fabricating false evidence (Section 194): With the intent to
procure a conviction of a capital offense.
• Threatening or inducing false evidence (Section 195A): Resulting in the
conviction and death of an innocent person.
• Being a party to criminal conspiracy to commit a capital offense (Section
120B).
• Waging, attempting to wage war, or abetting waging war against the
Government of India (Section 121).
• Abetting mutiny in the armed forces (Section 132).

4. Judgements by Supreme Court:

1. Bachan Singh v. State of Punjab2
The Bachan Singh v. State of Punjab case is a landmark judgment by the Supreme
Court of India. Here are the key points:
i. Background:
- Date of Judgment: May 9, 1980.
- Facts: Bachan Singh was convicted for the murder of two persons and
sentenced to death by the Sessions Court. The High Court of Punjab and Haryana
upheld the death sentence.
-Appeal: The case was appealed to the Supreme Court of India.
ii. Legal Significance:
- The Supreme Court introduced the concept of the "rarest of the rare" doctrine
in this case.

2
Case Summary: Bachan Singh vs. State of Punjab - LawLex.Org.
https://lawlex.org/lex-bulletin/case-summary-bachan-singh-vs-state-of-
punjab/24029.
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- The doctrine states that the death penalty should be awarded only in
exceptionally grave cases where no alternative punishment is unquestionably
foreclosed.
- The Court emphasized a real and abiding concern for human life and the need
to resist taking a life through legal means except in such rare circumstances.
iii. Constitutionality of Death Penalty:
- The Court upheld the constitutionality of Section 302 of the Indian Penal Code
(IPC), which provides for the death penalty.
- It clarified that fundamental rights are not absolute and must be exercised
without infringing upon similar rights of others.
In summary, the Bachan Singh case set important limitations on the death penalty,
emphasizing the need for extreme caution and adherence to the "rarest of the rare"
standard.

2. Macchi Singh v. State of Punjab:

i. Brief Facts:3
- On the night of August 12, 1977, a series of five incidents occurred in different
villages in Punjab, India.
- Seventeen people were murdered in these incidents, all related to Amar Singh
and his sister, Piaro Bai.
- Macchi Singh, who had a feud with Amar Singh and Piaro Bai, planned and
executed these crimes.
ii. Legal Proceedings:4
- Macchi Singh and eleven others were prosecuted in separate sessions courts.
- After trial proceedings, Macchi Singh and three accomplices were sentenced
to death, while others received life imprisonment.
- Appeals were made to the High Court of Punjab & Haryana, but the death
penalties were upheld.
3. Issue Addressed:

3
https://lawbhoomi.com/case-brief-macchi-singh-and-others-v-state-of-punjab/.
4
https://www.casemine.com/judgement/in/5609ac0ce4b014971140ddfa
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- The central issue before the Supreme Court was whether the "rarest of the
rare" doctrine from the Bachan Singh v. State of Punjab case could justify the
death penalty for Macchi Singh and other convicts.
iv. Arguments:5
- The defense argued that the identification of culprits was challenging due to
the darkness of the night and the limited light from a lantern.
- The lantern's illumination was insufficient for eyewitnesses to identify the
perpetrators.
v. Judgment:6
- The Supreme Court upheld the death penalty for Macchi Singh and others.
- It emphasized the need for extreme caution in imposing the death penalty and
adhering to the "rarest of the rare" standard.
In summary, the Macchi Singh case reaffirmed the Bachan Singh doctrine and
highlighted the gravity of imposing capital punishment.

3. Rajendra Prasad v. State of Uttar Pradesh

i. Background7:
- The case revolves around a family feud between two branches of the same
family.
- The initial murder led to the accused being sentenced to life imprisonment.
- After serving time in prison, the accused committed another murder, leading
to a death sentence.

ii. Accused:
-Rajendra Prasad (son of Pyarelal)

5
https://indiankanoon.org/docfragment/545301/?formInput=death%20penalty%20%20doctypes%3A%20judg
ments
6
https://www.casemine.com/judgement/in/5609ac0ce4b014971140ddfa
7
https://lawfoyer.in/rajendra-prasad-vs-state-of-uttar-pradesh/https://lawfoyer.in/rajendra-prasad-vs-state-of-
uttar-pradesh/
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iii. Facts8:
- The family feud escalated due to a kidnapping and a stabbing.
- Rajendra Prasad murdered a family member from the other branch.
- He was initially sentenced to life imprisonment.
- After release, he attacked another family member, leading to a death
sentence.
iv. Legal Issue:
- The case questioned whether it was appropriate to impose the death penalty
for the same act.
- Consideration of social justice and Article 14 (right to life) of the Indian
Constitution.

v. Judgment9:
- The High Court considered Rajendra Prasad a menace to society and a
proclaimed offender.
- The death sentence was upheld, emphasizing the need for deterrence and
societal protection.
In summary, the Rajendra Prasad case dealt with the principle of capital
punishment and explored when it is appropriate to impose such a penalty in
murder cases. The judgment authored by Justice V.R. Krishnaiyer provides
insights into various legal aspects related to this issue.

(3) Constitutional Validity of Death Penalty in India - LawLex.Org.

https://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-
india/1458.

8
https://indiankanoon.org/doc/1309719/.

9
https://www.casemine.com/judgement/in/5767b0fde691cb22da6d017d
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5. Arguments in Favour and Against Capital Punishment

Now we may find the concept of deal penalty, a.k.a. capital punishment, quite
controversial to look at. So here are a few arguments I thought would be apt to
put here.
Arguments in favour of capital punishments:
i. Could have an effective deterrent effect:
-Supporters say that the death sentence is a deterrent to serious offences. The
threat of being executed might discourage potential perpetrators.
-The theory is that knowing the final outcome may deter people from performing
horrific deeds.
ii. Retribution and Justice:
-Victims and their relatives feel retaliation when capital penalty is carried out.
-Some argue that justice requires a "eye for an eye" approach, particularly in
circumstances of violent murder or terrorism.
iii. Public Safety:
-The permanent removal of dangerous criminals from society ensures public
safety.
-Life imprisonment without parole may not provide the same level of security.
Arguments against capital punishment:
i. Human Rights and Dignity:
-Critics say the death penalty breaches the fundamental right to life.
-It is regarded as a cruel and brutal punishment, particularly when there is a
chance of executing an innocent individual.
ii. Arbitrary Application:
-The death penalty can be imposed arbitrarily and influenced by circumstances
like as race, socioeconomic status, and legal representation.
-Unequal access to quality defence can result in unfair outcomes.
iii. Possibility of Errors:
-Capital punishment is permanent; therefore, any judicial error cannot be
corrected.
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-Wrongful convictions have sparked worries about the judicial system's flaws.
iv. Cost and Resources:
-Death penalty trials and appeals are costly and resource-intensive.
-Funds for executions might be diverted to crime prevention and rehabilitation.
6. Mercy Petitions and Clemency in India:
i. Mercy Petition Process:10
After exhausting all legal options, a convict or relative may submit a written
mercy petition to either the President (under Article 72) or the Governor (under
Article 161) after 7 days of receiving the execution warrant from the trial court.
There is no explicit written procedure, but it is normal to make this official appeal
to the executive authorities.
ii. Constitutional Framework:
-Article 72: The President has the power to grant pardons, reprieves, respites, or
remissions of punishment. This applies to cases where the punishment is by a
Court Martial, offenses under Union laws, or cases with a death sentence.
-Article 161: Governors of states have similar powers within their respective
states.
iii. Historical Background:
-The concept of clemency dates back centuries. Ancient Athens practiced a form
of democratic pardon called “adeia.”
-Ancient Romans used clemency for political control and discipline. In India,
kings held life-and-death power, sparing certain sections of society from death
sentences.
There are a few cases of Mercy Petitions and Clemency, though. Some of them
are:
-Balwant Singh Rajoana: His mercy petition for pardon regarding the murder of
former Punjab Chief Minister Beant Singh had been pending for more than a
decade. Citing concerns about national security, the Supreme Court let the
administration make the decision about the petition11.

10
https://lawsstudy.com/understanding-mercy-petition-a-fundamental-right-to-life/
11
https://www.drishtiias.com/pdf/1697156578.pdf
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-Rajendra Prasad v. State of Uttar Pradesh: The President’s clemency power was
upheld in this case12.
-Marc Rich Pardon (USA)13: President Bill Clinton’s controversial pardon raised
questions about political influence on clemency decisions.

7. Conclusion:
Capital punishment, also known as the death penalty, has a long and complex
history in India. Here are the key takeaways:
1. Historical Roots:
- Capital punishment has ancient origins in India, with various forms of
execution practiced across different regions and periods.
- The British colonial administration significantly influenced India's legal
system, retaining the death penalty in the Indian Penal Code (IPC) of 1861.
2. Post-Independence Era:
- After gaining independence in 1947, India continued to apply the death
penalty for serious offenses.
- The Supreme Court introduced the "rarest of the rare" doctrine in the Bachan
Singh v. State of Punjab case (1980), emphasizing extreme caution in awarding
the death penalty.
3. Debates and Trends:
- The debate over capital punishment continues, with arguments related to
deterrence, justice, human rights, and public safety.
- Recent trends show a shift toward abolition, with some states abolishing the
death penalty for certain offenses.
4. Mercy Petitions and Clemency:
- Convicts can file mercy petitions seeking clemency from the President or
Governor.
- Notable cases like Rajendra Prasad v. State of Uttar Pradesh highlight the
delicate balance between punishment and mercy.

12
https://www.iasgyan.in/daily-current-affairs/mercy-petition
13
https://criminal-justice.iresearchnet.com/criminal-justice-process/appeal-and-post-conviction-
remedies/executive-clemency-and-pardons/
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In summary, while the death penalty remains part of India's legal system, its
application has become increasingly rare. The ongoing discourse reflects society's
evolving views on justice and human rights.