BM

LAW COLLEGE

A
PROJECT REPORT
ON

Capital Punishment in India

In Partial Fulfillment of Requirement for
The Degree of
BACHELOR OF BUSINESS ADMINISTRATION
IN
BBA. LLB.
2nd Semester
2019-20

Submitted by: Submitted to:

Vipul Solanki Dr Abhay Purohit

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 ACNKOWLDGEMENT

This is to thank every person who helped me a lot in completing this

project. I want to thank “Miss Mahima Gehlot”, whose classes helped
me a lot. College library also helped me with books links.

I also want to thank my seniors and friends and family who helped me in
finalizing the project and completing it in the limited time frame.

―Vipul Solanki

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 CERTIFICATE

This is to certify that the project report entitled “Capital Punishment in

India” out by Vipul Solanki at B.M. Law College as a partial
fulfillment of the requirement for the degree of BBA LLB during
academic year 2019-20.

— Dr. Abhay Purhoit

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B.M. LAW COLLEGE Page 4
Research objective

The objective of the research is to focus on the aspect of capital punishment in

India.

Research Method

This is a doctrinal research and the sources are book and the resources available on
the internet.

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 ABSTRACT

India is a well developing country, at the same time lot of crime rate is increasing
Nowadays. There is lots of legislation in India to stop and control crime, even
though the crime rates are increasing because the punishments are not sufficient for
the crimes. The punishment should be severe to reduce the crime rate. All
punishments are based on the same motive to give penalty to the wrongdoer. There
are different kinds of punishment in India such as capital punishment, life
imprisonment, imprisonment etc. Capital punishment is known as the most severe
form of punishment. This project says about the status of capital punishment all
around the world and also defines the concept of capital offence. It also explains
about the modes of capital punishment in India .This project explains two major
theories related to capital punishment, viz. Reformative theory and preventive
theory. In this research the researcher also explained about rarest of the rare cases.
This article mentions about abolitionist and retentionist countries, also capital
punishment in ancient India. This article has a detailed view about the capital
punishment in India and also the methods of execution in India.

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 INTRODUCTION

India is a country which consists of large number of crimes and criminals. In India
all punishments are based on the motive to give penalty for the wrongdoer. There
are two main reasons for imposing the punishment, one is the wrongdoer should
suffer and other one is imposing punishment on wrongdoers discourages other
from doing wrong. There are different kinds of punishment in India based on their
offence such as capital punishment11, imprisonment, life imprisonment,
imprisonment with fine, fine, etc.

Capital punishment or the death penalty is a legal process whereby a person is put

to death by the state as a punishment for a crime. The judicial decree that someone
be punished in this manner is a death sentence, while the actual process of killing
the person is an execution. Crimes that can result in a death penalty are known
as capital crimes or capital offences. The term capital originates from
the Latin capitalis, literally “regarding the head” (referring to execution
by beheading).

A majority of countries in the world has now abandoned the use of the death
penalty. But the world has not yet formed a consensus against its use. The most
populous country in the world, China, executes thousands of people every year,
and the most powerful country, the United States, uses it regularly. Eighty-four
countries retain the use of capital punishment. However, the number of countries
employing the death penalty is declining and it is possible that worldwide opinion
and pressure will gradually influence all countries to abandon this practice.

Meaning of capital punishment

1
Gupta 1986; Mohapatra and Mohapatra 2016

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Capital Punishment is a legal death penalty in India. India gives capital punishment
for a serious offences22. Capital punishment, also called death penalty, execution
of an offender sentenced to death after conviction by a court of law for a criminal
offense. Capital punishment should be distinguished from extrajudicial executions
carried out without due process of law. The term death penalty is sometimes used
interchangeably with capital punishment, though imposition of the penalty is not
always followed by execution (even when it is upheld on appeal), because of the
possibility of commutation to life imprisonment3.

The term "Capital Punishment" stands for most severe form of punishment. It is the
punishment which is to be awarded for the most heinous, grievous and detestable
crimes against humanity. While the definition and extent of such crimes vary from
country to country, state to state, age to age, the implication of capital punishment
has always been the death sentence. By common usage in jurisprudence,
criminology and penology, capital sentence means a sentence of death3.

2
25 Majumder, Sanjoy. "India and the death penalty." BBC News 4 August 2005
3
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1

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 History of capital punishment

1. Primitive Period: Law at the time of primitive people was oral, there were no
written codes. The punishment at that time was awarded in arbitrary manner by
king. Death penalty was usually found in primitive period for murder, theft,
trespass and misuse of valuable things (Death Penalty when generates death
legally, 2006). 27 Death Penalty was also found in 14th century B.C. in Draconian
Code of Athens, they made crime only to be punished through death penalty. Same
as in 5th century B.C. Roman law of twelfth tablets (Death Penalty when generates
death legally, 2006)

2. Pre Columbian People: These people originated from Central America. Now
they use to originate in Mexico, Belize, and Salvador. They ruled for XVI Century
B.C. till XVII A.C. and defeated by Spanish. Adultery, murder made punishable
with death in pre Columbian period. Husband in adultery use to kill by means of
throwing big stone on his head (Death penalty when life generate death legally,
2006)34

3. Roman: Jesus Christ was awarded with death penalty by roman through
crucifixion between VI Century B.C. and IV Century A.D. Romans accepted the
deterrent value of death penalty (Dr. DP and Dr. MP, 2012)35 .

4. Death Penalty in United States: European Settler introduces death penalty in

America. The 1st execution was by Captain Kendal in the Jamestown colony of
Virginia in 1608. In 1612 Virginia Governor Sir Thomas Dale rises to award death
penalty on less serious offence. Death penalty for offence as striking father and
mother or damaging true God was to be punished with death (Randa, 1997) First
state to abolish death penalty was Michigan except treason in 1846. Rhode Island

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and Wisconsin later abolish death penalty for all crimes. By the end of 18th
century Venezuela, Portugal, Netherland, Costa, Rica, Brazil follows for abolition
of death penalty (Bohm, 1999 and Schabas, 1997) .

5. Types of Death Penalty in Ancient Civilisation:

The execution of death penalty punishment was differing from one civilisation to
another. A brief explanation of these executions is: ·

 Death by boiling: In 15th century the legal method of execution of death

penalty was boiling of accused in England. The accused was dropped in
boiling water, oil or tar until dead (Ghatate, 2000) ·
 Crucification: This was the most common and painful practice practiced in
6th century B.C till 4th century A.D. which was usually found among
Seleucids, Carthaginians, Persians and Romans. In this person was tied on
cross and hanged till death. This practice of death penalty was done with
Jesus Christ also (Ghatate, 2000).
 Flaying: This method was practiced in middle age. In this accused tortured
by removing skin from body. This practice was commonly found in Middle
East (Ghatate, 2000).
 Disembowelment: This was practiced mostly in England, Netherland,
Belgium and in Japan against the prisoner held guilty in adultery. Under this
method the accused vital organ uses to be removed5(Ghatate, 2000).
 Breaking Wheel: This practice of punishment found in ancient Greece. In
this a wooden wheel use to stretch accused and one use to hit on limb so
they may break their bone also hits use to did on stomach and chest (Iveren,
2011)
 Crushing: In roman civilisation the accused used to be crushed through
elephant (Ghatate, 2000)
 Slow Slicing: This was usually practice around 900 A.D. In this the
prisoner was awarded with numerous cuts till death. The idea behind is to
humiliate prisoner with slow and painful execution. The cut was done
through knife (Ghatate, 2000).

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 The ‘Rarest Of the Rare’ Doctrine

1973 to 1980, the legislative dictate has changed from death sentence being the
norm to becoming an exception, and necessarily to be accompanied by
reasons. Bachan Singh vs. State of Punjab4,was a landmark in the escalating debate
on the question of the compatibility of the death sentence with Art. 21 of the
Constitution. The Supreme Court while holding the validity of the death penalty
expressed the opinion that a real and abiding concern for the dignity of human life
postulates resistance for taking a life through law’s instrumentality 5. That ought not
to be done save in the rarest of rare cases, when the alternative option is
unquestionably foreclosed.
However, the Court declined to formulate any aggravating or mitigating factors as
it would fetter judicial discretion, but held that a murder “diabolically conceived
and cruelly executed” may attract extreme penalty. It is not possible, the court
opined, to feed numerous imponderable circumstances in an imperfect and
undulating society. But what are those rarest of rare occasions is the dilemma.
What appears as brutal and gruesome, to one judge may not appear to be so to
another. For example, in one case the murder of wife and two children with the
motive of leading life with the paramour could not convince Krishna Iyer, J. for
death penalty, while Sen, J. wondered what else could be a fit case for death
penalty than the one at hand6. It is submitted that if the difference in perception is
so glaring among two judges of the highest court in the country what is relative
position among very large number of session’s judges in the country.

Offences punishable by death:

4
AIR 1980 SC 898
5
Ranga Billa vs. Union of India, Supreme Court, 1982.
6
Om Prakash vs State of Haryana 1999 Cr.L.J. 2044

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 1. Murder
Under section 302 of Indian Penal Code (IPC) Murder is punishable by
death, but in purview of the rarest of rare case doctrine.
2. Other Offenses Resulting in Death

According to theSec.396of Indian Penal Code, if any member of a

group commits murder in the course of committing an armed robbery,
all members of the group can be sentenced to death.

Under Sec. 364 A IPC, Kidnapping for ransom in which the victim is
killed is punishable by the death penalty.

According to The Unlawful Activities (Prevention) Amendment

Ordinance, Sec. 6, 2004 being a member of an association or promoting
an association while committing any act using unlicensed firearms or
explosives that results in death, is punishable by death.

The Commission of Sati (Prevention) Act, part. II, Sec.4 (1), no. 3 of
1988, 1987, Committing, or assisting another person in committing sati
– the burning or burying alive of widows or women – is also punishable
by the death penalty.

Under the Prevention of Atrocities ActSec.3 (2) (i), bearing false

witness in a capital case against a member of a scheduled caste or tribe,
resulting in that person's conviction and execution, carries the death
penalty.

Under Sec. 305 of Indian Penal code assisting individuals who are

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 under the age of 18, mentally ill, mentally disabled, or intoxicated in
committing suicide is punishable by the death penalty.

3. Terrorism-Related Offenses Not Resulting in DeathUnder Explosive

Substances (Amendment) Act, 2011 Sec.3 (b) using any special category
explosive to cause an explosion likely to endanger life or cause serious
damage to property is punishable by the death penalty.

4. Rape Not Resulting in Death

Under the Criminal Law (Amendment) Act, 2013 Sec.9 a person who in the
course of a sexual assault inflicts injury that causes the victim to die or to
be left in a “persistent vegetative state” is punishable by death. Repeat
offenders of gang rape are also punishable by death.

5. Kidnapping Not Resulting in Death

Under Sec.364 A, IPC Kidnapping or detaining an individual is punishable

by death if the kidnapper threatens to kill or harm the victim, if the
kidnapper’s conduct makes the death or harm of the victim a possibility, or
if the victim is actually harmed.

6.Drug Trafficking Not Resulting in Death

Under Sec.31A, of NDPS Act, If an individual who has been convicted of

the commission of, attempt to commit, abetment of, or criminal conspiracy
to commit any one of a range of offenses related to drug trafficking (e.g.
trafficking of cannabis and opium) commits another offense related to the
production, manufacture, trafficking, or financing of certain types and

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 quantities of narcotic and psychotropic substances, he or she can be
sentenced to death.

7. Treason

Waging or attempting to wage war against the government and assisting

officers, soldiers, or members of the Navy, Army, or Air Forces in
committing mutiny are punishable by the death penalty.

8. Military Offenses Not Resulting in Death

Under Air Force Act Of India Sec.37, 38 & 34 the following offenses, if
committed by a member of the Army, Navy, or Air Forces, are punishable by
death: committing, inciting, conspiring to commit, or failing to suppress
mutiny; desertion or aiding desertion; cowardice; treacherous acts;
committing or inciting dereliction of duty; aiding the enemy; inducing
individuals subject to military law not to act against the enemy; imperiling
Indian or allied military, air, or naval forces in any way,

9. Other Offenses Not Resulting in Death

 Being a party to a criminal conspiracy to commit a capital

offence is punishable by death.
 Attempts to murder by those sentenced to life imprisonment are
punishable by death if the attempt results in harm to the victim.
 Calumniation under Sec.120B of IPC is providing false evidence

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 with intent or knowledge of the likelihood that another
individual, or a member of a Scheduled Caste or Tribe, would be
convicted of a capital offense due to such evidence carries the
death penalty if it results in the conviction and execution of an
innocent person.

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 INDIAN STATUTE REGARDING CAPITAL PUNISHMENT

1. Under Indian Penal Code (IPC), 1860 the sections under which death
penalty use to be awarded are: -

 Section 120 B- Punishment for Criminal Conspiracy

 Section 121 - Waging or attempting to wage war or abetting waging of war
against the Government of India.
 Section 132 -Abetment of mutiny
 Section 194 -Giving or Fabricating false evidence with intent to produce
conviction of capital offence
 Section 195A -Threatening any person to give false evidence
 Section 302 -Punishment for Murder
 Section 303 -Punishment for murder for life convict. It proves
unconstitutional and held its a violation of Article 14 and 21 of Constitution
of India83
 Section 305 -Abetment of suicide of child or insane person
 Section 364 A -Kidnapping for ransom
 Section 396 -Dacoity with murder.

2.Other legislation in Indian Law related to armed force:

 Air Force Act, 1950

 Army Act, 1950
 Navy Act, 1950
 Indo Taliban Border Police Force Act, 1992
 Schedule Caste and Schedule Tribe (Prevention of Auto cities) Act 1989
 Prevention of Terrorism Act, 1987
 Defense of India Act, 1971
 Explosive Substance Act, 1908
 Arms Act, 1959
 Unlawful Activities Prevention Act, 1967 (amended 2004)

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 CONCLUSION

Capital punishment which is seen as a cruel and inhuman in some jurisdictions is

constitutional in India and some other countries, and the right to life and human
dignity as provided by the Indian Constitution does not prevent an offender from
being executed if found guilty of certain crimes by a Court of competent
Jurisdiction. In other words the same constitution that has provided for these rights
has also provided death as a penalty for certain criminal offences. In India the issue
of death sentence is hotly debated and has attracted the attention of general public
as well as government and non-governmental organizations. Though India is an
active member of the United Nations and has signed and ratified most of the
International Instruments on human rights, capital punishment still remains in our
statute book. According to our judiciary it must be imposed in exceptional cases
i.e. in rarest of rare cases with special reasons.

Death penalty in rarest of rare case does not affect the human rights principles. As
per the guidelines provided in ICCPR for those countries which does not want to
abolish it says that one may award capital punishment but have to follow certain
conditions.

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 BIBLIOGRAPHY

o www.amnesty.org
o www.wikipedia.org
o www.ohchr.org
o www.worldcoalition.org
o www.thehindu.com

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