Capital Punishment

INTRODUCTION:

Criminal law reflects those fundamental social values expressing the

way people live and interact with each other in the society. It uses the ‘stick’
of punishment as a means of reinforcing those values and securing
compliance therewith. In this way criminal law seeks to protect not only the
individual, but also the very structure and fabric of society from undesirable,
nefarious and notorious activities and behavior of such individuals and
organizations who try to disrupt and disturb public peace, tranquility and
harmony in the society.
As a rule punishability, by and large, depends on the degree of culpability of
criminal act and the danger posed by it to the society as also the depravity of
the offender. The risk of penalty is the cost of crime, which the offender has
to pay. When this cost (suffering) is high enough as compared to the benefit,
which the crime is expected to yield, it will deter a considerable number of
people. This is true with crimes punishable with death sentence as well.
A dispassionate analysis of criminological jurisprudence would reveal that
capital punishment is justified only in extreme cases in which a high degree
of culpability is involved causing grave danger to society. It must, however,
be added that a mere objective consideration of act’s dangerousness to
society by itself would not be enough to assess perpetrator’s culpability but
his personal attributes and circumstances and gravity of the offence have
also to be taken into consideration to decide whether or not accused deserves
capital punishment. Thus the punishment should commensurate among other
things, with the gravity of offender’s act and societal reaction to it.
HISTORICAL PERESPECTIVE
Death sentence has been used as an effective weapon for centuries. The
justification advanced is that it is lawful to forfeit the life of a person who
takes away another’s life. The fear of being condemned to death is perhaps
the greatest deterrent, which keeps an offender away from criminality. Death
penalty in case of murder serves as an effective deterrent to remind the
murderer about the severity of law towards these heinous crimes and
certainly helps in reducing the incidence of homicide. The old methods of
public execution though abandoned today, were directed to make the
sentence as frightening as possible. The present trend, however, is to keep
the number of offences punishable by death to minimum and avoid death
penalty as far as possible although its retention in the statute book is
favoured even this day.

DEATH SENTENCE IN ENGLAND

The history of crime and punishment in England during the medieval period
reveals that infliction of death penalty was commonly practiced for the
elimination of criminals. Henry VIII who reigned in England for over fifty
years was particularly infamous for his brutality towards the condemned
prisoners. He used to boil the offenders alive. His daughter Queen Elizabeth,
who succeeded him, was far stiffer in punishing the offenders. The offenders
were not put to death at once but were subjected to slow process of
amputation by bits so that they suffer maximum pain and torture. The
condemned offenders were often executed publicly. These brutal methods of
condemning the offenders were, however, abandoned by the end of
eighteenth century when the system of transporting criminals to distant
American colonies at their option was firmly established.
Dr. Fitzgerald observed that the history of capital punishment in England for
the last two hundred years recorded a continuous decline in the execution of
this sentence. During the last half of the eighteenth century as many as two
hundred offences were punishable with death penalty. The obvious reason
for the frequency of the execution was the concern of the ruler to eliminate
criminals in the absence of adequate police force to detect and prevent
crimes. The methods of putting the offenders to death were extremely cruel,
brutal and torturous. As the time passed, The severity of capital punishment
was mitigated mainly in two ways: Firstly this sentence could be avoided by
claiming the’ benefit of clergy’ which mean exemption from death sentence
to those male offenders who could read and were eligible for holy order.
Secondly the prisoners who were awarded death sentence could be pardoned
if they agreed to be transported to American colonies. Thus by 1767
condemned felons could be transported for seven years in lieu of capital
sentence. In course of time, death penalty for felony was abolished ,and in
1853,the system of transporting criminals also came to an end and a new
punishment of penal servitude was introduced.
In nineteenth century, however, the public opinion disfavored the use of
capital punishment for offences other than the heinous crimes. However the
constant rise in the incidence of crime in recent years has necessitated
Britain to re-assess its penal policy regarding death penalty. The latest
decisions of Privy Council emphatically stressed the award of death sentence
is not violative of human rights or fundamental duties.

DEATH SENTENCE IN USA

Available literature on capital punishment in United States testifies that in
modern times the sentence of death is being sparingly used in that country.
This however does not mean that capital punishment is altogether abolished
in United States. The retention of death penalty is still considered to be
morally and legally just though it may be rarely carried into practice.
American penologists justify the retention of capital punishment for two
obvious reasons. Firstly from the point of view of protection of society,
death penalty is needed as a threat or warning to deter the potential
murderers. Secondly, it also accomplishes the retributive object of
punishment in as much as a person who kills another has perhaps forfeited
his claim for life. It is, however, generally argued that the risk of being
executed in fact serves no deterrent purpose because the murderer often
plans out his crime in such a way that the chances of his detection are rare
and he is almost sure of his escape without being punished. The retention of
death penalty for capital murderers is justified on the ground that if not
executed, they will remain menace and potential danger to society. Recent
trend in America is to restrict capital punishment only to the offence of
murder and rape. Another noticeable change in trend is to make the process
of execution private, painless and quick against the old methods of public
execution, which were brutal, painful, and time consuming several American
states has abolished death penalty with beneficial results. Mr justice Brennan
and Mr.Justice Marshall of the U.S. Supreme Court in a well known decision
Furman V. The State of Georgia, observed that death penalty should be
outlawed on the ground that it was an anachronism degrading to human
dignity and unnecessary in modern life. But most of the judges did not agree
with the view that the English amendment of the American constitution,
which prohibits capital punishment for all crimes and all circumstances, is a
good law. Some of the American decisions suggest that the courts are
convinced that death penalty perse is not violative of the constitution. It is
significant to note that with the abandonment of the torturous and barbarous
methods of inflicting death penalty, the meaning of the term capital
punishment now extends only to death sentence for murder or homicides.

CAPITAL PUNISHMENT IN INDIA

Though approximately 129 countries have abolished death penalty India has
not taken such a step as yet. Perhaps, having regard to the prevailing
conditions of poverty, illiteracy, ignorance, economic, disparity
unemployment and disparity in standard of living as a result of the variety of
the social upbringing of its inhabitants, erosion in moral, ethical and social
values as a result of criminalisation of politics and crime, emergence of
terrorism and hijacking etc., on a large scale at the paramount need for
maintaining law and order in the country at the present juncture, India
cannot risk the experiment of abolition of capital punishment. Taking note of
above factors accordingly, the apex Court instead of deleting. Capital
punishment from the statute book has circumscribed its application to the
“rarest of rare cases”.
At present, capital punishment in India is given for following crime: These
are:
1) Waging war against the Government of India or abetting thereof under
Section -121 IPC
2) Abetment of mutiny by a member of the armed forces under Section 132
IPC.
3) Giving or fabricating false evidence leading to procure one’s conviction
for capital offence under Section 194 IPC
4) Murder - Section 302 IPC
5) Murder by a person undergoing a term of life imprisonment under Section
303 IPC
6) Abetment of suicide by child or insane person child, insane or intoxicated
person under Section 305 IPC
7) Attempt to murder by a life convict- Section 396 IPC
8) Dacoity with murder - Section 396 IPC.

Though capital punishment is still sanctioned in our country, yet four types
of persons are exempted from it: (i) children below 15 years of age, (ii)
pregnant women, (iii) mentally deranged persons, and (iv) persons above 70
years of age. There is also a provision for appealing to the President for
mercy after the Supreme Court rejects appeals.
In addition to the IPC, other laws like the Narcotic Drugs and Psychotropic
Substances Act, 1985, Explosive Substances Act, 1908, etc. also have capital
punishment that can be awarded as the maximum punishment. The Air Force
Act, 1957, Army Act, 1950 and the Navy Act, 1957 provide for imposition
of the capital punishment.
The criminal law in India provides for death sentence and life
imprisonment as alternative punishment under certain circumstances.
Section 302, I.P.C. prescribes an alternative punishment of either death or
imprisonment for life with fine if an accused is found guilty of murder.
Initially the Code of Criminal Procedure, 1898, in Section 367, sub-section
(5) provided that when an offence was punishable with death, or life
imprisonment and if sentence other than death was awarded, the court was
required to state the specific reasons for imposing the lesser penalty of life
imprisonment in its judgment. The Amendment Act 28 of 1955 deleted this
provision and the Court was given an option to award either death or
imprisonment for life with fine as one of the alternative punishments for
murder under the Code depending upon the facts and circumstances of the
case. The Code of Criminal Procedure, 1973 in Section 354, sub-section (3)
in response to the opposition to capital punishment, has made the death
sentence an exception and life imprisonment a normal punishment for
murder, reversing the pre-1955 position under which the death sentence was
the normal rule. Accordingly, if the Court decides to award the death
sentence, under Section 302, I.P.C. it has to give special reasons in
justification for such a sentence, and if no reasons are accorded, the
appellant court will commute the sentence of death to a sentence of life
imprisonment Thus it is only in the case of deliberate and gruesome murder
that comes within the rarest of the rare category that the death sentence can
be imposed and these special reasons may be examined by the superior
courts in appeal. It may be noted that the Indian Penal Code Amendment)
Bill, 1972 (which could not see the light of the day) prescribed the sentence
of imprisonment for life as a rule for murder and death sentence as an
exception to be accorded in only limited cases. The proposed Section 302
reads as follows:
(1) Whoever commits murder shall, save as otherwise provided in sub-
section (2), be punished with imprisonment for life and shall also be liable to
fine.
(2) Whoever commits murder shall,
(a) If the murder has been committed after previous planning and involves
extreme brutality, or
(b) If the murder involves exceptional depravity, or
(c) If the murder is of a member of any armed forces of the Union or any
police force or of any public servant whose duty it is to preserve peace and
order in any area or place, while such member or public servant is on duty,
or
(d) If he, while under sentence of imprisonment for life has committed the
murder, and such sentence has become final, be punished with death, or
imprisonment for life, and shall also be liable-to fine.

EXECUTION OF DEATH PENALTY

The mode of execution of death sentence in India is hanging. Section 354 (5)
of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as the
Cr.P.C) provides that when any prisoner is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead. Hanging is still the
most common method of executing convicts.

Constitutional validity of death penalty

Section 302 provides two alternative punishments for murder, viz., death
sentence or imprisonment for life. The legislature has left to the Court to
award the appropriate punishment in a case of murder according to its
wisdom. This provision is highly controversial and criticized. It is said that
the legislature has abdicated its essential function in not providing by what
legislative standards and in what case of murder a judge should sentence an
accused to life imprisonment, or to death.
In Jagmohan Singh v. State of U.P.AIR 1973 947. The constitutional
validity of capital punishment was challenged before the Apex Court. It was
argued that the ‘Right to life’ was the basic Fundamental Right under Article
21 of the Constitution. The Supreme Court rejected the contention and held
that capital punishment could not be said to be violative of Article 21 of the
Constitution. After this decision the constitutional validity of death sentence
was not open to doubt. But in the case of Rajendra Prasad v. State of U.P
AIR 1979 SC 916 (overruled in Bachan Singh's case). Krishna Iyer J., held
that capital punishment would not be justified unless it was shown that the
criminal was dangerous to the society. He held that giving discretion to the
Judge to make choice between death sentence and life imprisonment on
"special reasons" under Section 354 (3), Cr. P.C., would be violative of Art.
14, which condemns arbitrariness. He pleaded for the abolition of death
penalty and retention of it only for punishing "white collar offences". Sen, J.,
in his dissenting judgment, held that the question whether the death sentence
should be abolished or the scope of Section 302,1.P.C. and Section 354 (3)
should be curtailed or not is a question to be decided by Parliament and not
by the Court. It is submitted that the minority judgment is correct because
after the amendment in the Cr.P.C. and the decision in Jagmohan Singh's
case the death penalty is only an exception and the life imprisonment is the
rule. The discretion to make choice between the two punishments is left to
the Judges and not to the Executive.
In Bachan Singh v. State of Punjab, AIR 1980 SC 898, the Supreme Court
by 4: 1 majority (Bhagwati, J. dissenting) has overruled Rajendra Prasad's
decision and has held that the provision of death penalty under Section 302,
I.P.C. as an alternative punishment for murder is not violative of Article 21.
Art. 21 of the Constitution recognizes the right of the State to deprive a
person of his life or personal liberty in accordance with fair, just and
reasonable procedure established by valid law. In view of the constitutional
provision by no stretch of imagination it can be said that death penalty under
Section 302, I.P.C. either per se, or because of its execution by hanging
constitutes an unreasonable, cruel or unusual punishment. The death penalty
for the offence of murder does not violate the basic feature of the
Constitution. The International Covenant of Civil and Political Rights to
which India has become party in 1979 do not abolish imposition of death
penalty in all circumstances. All that it requires is, that (1) death penalty
should not be arbitrarily inflicted, (2) it should be imposed only for most
serious crimes. Thus the requirements of International Covenant is the same
as the guarantees or prohibitions contained in Arts. 20 and 21 of our
Constitution. The Indian Penal Code prescribes death penalty as an
alternative punishment only for heinous crimes. Indian Penal Laws are thus
entirely in accord with international commitment.

Right against delayed execution: —In T. V. Vatheeswaran v. Stale of

Tamil Nadu (AIR 1981 SC 643) a two-Judge Bench of the Supreme Court
held that delay in execution of death sentence exceeding 2 years would be
sufficient ground to invoke the protection of Art. 21 and the death sentence
would be commuted to life imprisonment. In Sher Singh v. State of Punjab
(AIR 1983 SC 465) the three-Judge Bench of the Court agreed with this
view that prolonged delay in the execution of a death sentence was an
important consideration for invoking Art. 21 for judging whether sentence
should be allowed to be executed should be converted into sentence of
imprisonment. Prolonged detention to await the execution of a sentence of
death is an unjust, unfair and unreasonable procedure and the only way to
undo the wrong is to quash the death sentence. However, the Court held that
this cannot be applied as a rule in every case and each case should be
decided on its own facts. The Court should consider whether the delay was
due to the conduct of the convict (where he pursues series of legal
remedies), the nature of offence, its impact on the society, its likelihood of
repetition, before deciding to commute the death penalty into a sentence of
life imprisonment. In the instant case the delay was found to be due to the
conduct of the convict and therefore it was held that the death sentence was
not liable to be quashed. Accordingly, the Court overruled the decision in
T.V. Vatheeswaran v. State of Tamil Nadu(AIR 1981 SC 643) .
But in Javed Ahmad v. State of Maharashtra, AIR 1985 SC 231, Court held
that where there is delay in execution of death sentence of more than 2 years
and the conduct and behaviour of the accused in the jail, evident from the
report of the jail authorities show that he was showing genuine repentance it
was held that the death sentence could be commuted to life imprisonment.
Finally, in Triveni Ben v. State of Gujarat, AIR (1989) SC 142, a five judge
Bench of the Supreme Court has set the matter at rest and held that undue
long delay in execution of the death sentence will entitle the condemned
person to approach the Court for conversion of death sentence into life
imprisonment, but before doing so the Court will examine the nature of
delay and circumstances of the case. No fixed period of delay could be held
to make the sentence of death inexecutable. In the present case the death
penalty of the accused was converted into life imprisonment.
In Madhu Mehta v. Union of India, (1989) 4 SCC 62, the mercy petition of
the petitioner who was sentenced to death was pending before the President
of India for about 8 or 9 years. One Madhu Mehta, the National Convenor of
Hindustani Andolan, brought this matter to the notice of the Court.
Following Triveniben's decision the Court directed the death sentence to be
commuted to life imprisonment, as there were no sufficient reasons to justify
such a long delay in disposal of the convict's mercy petition. Speedy trial in
criminal cases is implicit in the broad sweep and content of Art. 21. This
principle is no less important for disposal of mercy petitions.
In the case of Shatrughan chauhan & Anr. Versus Union of India & Ors writ
petition (criminal) no. 55 of 2013,
The Honorable Supreme Court held that death sentence of a condemned
prisoner can be commuted to life imprisonment on the ground of delay on
the part of the government in deciding the mercy plea. In this landmark
verdict that can come as a relief to many death row convicts. Giving life
term to 15 death row inmates, including four aides of forest brigand
Veerappan, the apex court also ruled that a death convict suffering from
mental insanity and schizophrenia cannot be hanged. It overruled its own
verdict in Khalistani terrorist Devinderpal Singh Bhullar’s case in which it
had held that delay in deciding mercy plea cannot be a ground for
commutation of death sentence. The Court said Death sentence in such cases
can be commuted to life imprisonment on the ground of their mental illness.

Hanging by rope: - In Deena v. Union of India, (1983) 4 SCC 645, the

constitutional validity of Section 354 (5) Cr.P.C. 1973 was challenged on the
ground that hanging by rope as prescribed by this section was barbarous,
inhuman and degrading and therefore violative of Art. 21. It was urged that
State must provide a human and dignified method for executing death
sentence. The Court unanimously held that the method prescribed by Section
354 (5) for executing the death sentence by hanging by rope does not violate
Art. 21. The Court held that Section 354 (5) of the Cr.P.C., which prescribed
hanging as mode of execution lays down fair, just and reasonable procedure
within the meaning of Art. 21 and hence is constitutional. Relying on the
report of U.K. Royal Commission, 1949, the opinion of the Director General
of Health Services of India, the 35th report of the Law Commission, opinion
of Prison Advisers and forensic medicine, the Court held that hanging by
rope is the best and least painful method of carrying out the death sentence
than any other methods. The Judges declared that neither electrocution, nor
lethal gas, or shooting, nor even the lethal injection has "any distinct or
advantage " over the system of hanging by rope.

Public hanging: —In Attorney General of India v. Lachma Devi, AIR 1986
SC 467 it has been held that the execution of death sentence by public
hanging is barbaric and violative of Art. 21 of the Constitution. It is true that
the crime of which the accused have been found to be guilty is barbaric, but
a barbaric crime does not have to be visited with a barbaric penalty such as
public hanging.

RAREST OF RARE CASES

While observing in Bachan Singh v State of Punjab, AIR 1982 SC 1325,
The supreme held that court must pay due regard both to the crime criminal
and in awarding death sentence.
The Apex Court emphasized upon Section 354 (3) of the CrPC saying that
under it life imprisonment as punishment was the rule and death sentence
was an exception to be awarded in the rarest of rare cases. This was the first
time that the Supreme Court coined the concept of ‘rarest of rare cases’ .The
Court attempted to provide some guidelines regarding the choice to be made
between death sentence and life imprisonment:
(a) If the murder has been committed after previous planning and involves
extreme brutality; or
(b) If the murder involves exceptional depravity; or
(c) If the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was
committed:
(i) While such member or public servant was on duty; or.
(ii) In consequence of anything done or attempted to be done by such
member or public servant in the lawful discharge of his duty as such member
or public servant whether at the time of murder he was such member or
public servant, as the case may be, or had ceased to be such member or
public servant; or
(d) If the murder is of a person who had acted in the lawful discharge of his
duty under Section 43 of the Code of Criminal Procedure, 1973, or who had
rendered assistance to a magistrate or a police officer demanding his aid or
requiring his assistance under Section 37 and Section 129 of the said Code."
The Court gave examples of the circumstances which ought to be given due
consideration in the determination of a sentence:
(1) That the offence was committed under the influence of extreme mental
or emotional disturbance.
(2) If the accused is too young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The
State shall by evidence prove that the accused does not satisfy conditions (3)
and (4) above.
(5) That in the facts and circumstances of the case the accused believed that
he was morally justified in committing the offence.
(6) That the accused acted under duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the criminality of
his conduct.
In Machhi Singh v State of Punjab, (1983) 3 SCC 470 the accused-
appellants, as a result of a family feud and motivated by feelings of reprisal,
committed as many as 17 murders of men, women and children. The Court,
while justifying the death sentence imposed on the appellants, recollected
with approval the principles laid down in Bachan Singh and supplemented
them with a few more elaborate guidelines regarding the test of 'rarest of
rare' cases given below:
(a) Is there something uncommon about the crime, which renders sentence
of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?
The following guidelines, which emerge from Bachan Singh case, will have
to be applied to the facts of each individual case where the question of
imposition of death sentence arises:
(i) The extreme penalty of death need not be inflicted except in gravest cases
of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender'
also require to be taken into consideration along with the circumstances of
the 'crime'.
(Hi) Life imprisonment is the rule and death sentence is an exception. Death
sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant
circumstances of the crimes, and provided, and only provided, the option to
impose sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime and all
the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is exercised.
In the rarest of rare cases, when the collective conscience of the community
is so shocked that it will expect the holders of the judicial power centre to
inflict death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining the death penalty, death sentence can
be awarded. The community may entertain such sentiment in the following
circumstances:
(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) When the murder is committed for a motive, which evinces total
depravity and meanness; e.g., murder by a hired assassin for money or
reward; or cold-blooded murder of a person, for gains, vis-à-vis whom the
murderer is in a dominating position or in a position of trust; or, murder is
committed for treason.
(3) When murder of a member of a Scheduled Caste or minority community,
etc., is committed not for personal reasons but in circumstances which
arouse social wrath; or in cases of 'bride burning' or 'dowry deaths', or when
murder is committed in order to remarry for the sake of extracting dowry
once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance, when multiple
murders, say of all or almost all the members of a family or a large number
of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or
an old or infirm person or a person, vis-a-vis whom, the murderer is in a
dominating position, or is a public figure generally loved and respected by
the community.
If upon taking an overall global view of all the circumstances in the light of
the aforesaid propositions and taking into account the answers to the
questions posed by way of the test for the rarest of rare case, the
circumstances of the case are such that death sentence is warranted, the court
would proceed to do so.
In Macchi Singh, as regards the three appellants (viz. Machhi Singh,
Kashmir Singh and Jagir Singh), the rarest of rare case rule prescribed in
Bachan Singh is clearly attracted. They committed calculated and cold-
blooded murders of innocent and defenceless women, children, veterans and
newly married couples in an exceptionally depraved, heinous, horrendous
and gruesome manner for reprisal as a result of family feud with a view to
wipe out the entire family and relatives of the opponent. The murders were
hair-raising for society at large in the sequence in which they were
committed, spreading the horror of a killing spree. In the circumstances only
death sentence and not life imprisonment would be adequate. Accordingly,
the death sentence imposed upon them was confirmed.
In Dhananjoy Chatterjee v. State of West Bengal,(1994) 2 SCC 220 and
Laxman Naik v. State of Orissa (1994) 3 SCC 381, the Supreme Court had
to deal with offenders guilty of rape and cold-blooded murder and death
sentence, as must have been anticipated, was upheld in both the cases. In the
first case, the appellant was a security guard for a housing complex and the
victim an 18-year-old girl who had got him transferred; the savage act was
committed by way of revenge against the deceased, while in the second case,
the victim was the 7-year-old niece of the offender. In State of Punjab v.
Harchet Singh 1994 Cri LJ 1529 however, the situation being somewhat
different, the child-victim of rape dying as a result of pain and hemorrhage,
the court awarded life imprisonment in view of the mitigating factor that the
offence was committed because of lust and not due to any enmity. It is
difficult to concur with the lenient view based on a distinction drawn
between enmity and lust-based rapes. Further, if death results due to rape of
a child, it is murder and there seems to be no legal or moral justification in
distinguishing it from murders committed as a sequel to rape. A more drastic
approach in any case is required to deal with the escalating rate of child
rapes in the country.
The Court has held that honour killing vide Bhagwan Dass v State (NCT) of
Delhi AIR SC 1863, fake encounter by the police vide Prakash Kadam vs.
R.V. Gupta AIR 2011 SC 1945 and dowry death vide Satya Narayan Tiwari
vs. State of U.P. (2010) 13 SCC 689 comes within the category of `rarest of
rare cases'. Hired killing would also ordinarily come within this category.

RETENTIONIST’S ARGUMENTS
1. Elimination of murderers by execution is fair retribution and saves
potential future victims
2. Punishments must match the gravity of offence and worst crimes should
be severely punished.
3. Societies must establish deterrents against crimes. Death sentence serves
as an effective deterrent.
4. Death is a just punishment and death penalty has been held
constitutionally valid to ensure justice for condemned offenders.

ABOLITIONIST’S ARGUMENTS
1. An execution arising out of miscarriage of justice is irreversible.
2. Capital punishment is lethal vengeance, which brutalizes the society that
tolerates it.
3. Capital punishment does not have deterrent effect. Hired murderers take
the risks of criminal justice system whatever the penalties. Thus it has no
rational purpose.
4. Death penalty is unjust and often discriminatory against poor who cannot
defend themselves properly.