Death Sentence For Murder U/S Sec. 302 & 303 Of The Indian Penal Code, 1860: An Analysis

The 'law and order' within a state is maintained through a harmonious balance of administration of Justice, the realization of its existence within the citizens and the importance of the state. The state defines the Rights and Duties of its citizens. It protects rights and enforces the duties for the welfare of the common people. Law is a very wide subject and covers remedies for every illegal action to provide justice. According to Sec 302 of the Indian Penal Code, 1860, whoever commits murder shall be punished with death or imprisonment of life, and shall also be liable to fine.

As per Sec 303 of Indian Penal Code, 1860 whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.

Offenses under Sec 302 and Sec 303 (as it stood before being repealed) of the INDIAN PENAL CODE are cognizable, non-cognizable and triable by the Court of Session.

• In the case of Bachan Singh v State Of Punjab ((1980) (2 SCC 684) – Introduced that in cases of conviction for life or imprisonment for a term of 10 years, the judgment shall state the reason for the sentence awarded and in case of the death sentence, there are “special reasons” to be recorded for such sentences. The expression “special reasons” in the context of this provision, means “exceptional reasons” founded on the exceptionally grave circumstances of the particular case related to crime and the provisions contained in Sec. 302 of IPC, 1860. It also held Sec. 354(3) of CRPC, 1973 to be valid. Exercise of discretion u/s 354(3) of CRPC, 1973 should be in exceptional and grave circumstances and the imposition of death sentence should only be in rarest of rare cases.
• But In the case of Mithu v State [AIR1983 SC 473], Sec 303 was struck down by the Hon’ble Supreme Court as void and unconstitutional for being violative of Art 14 & Art 21 of the Indian Constitution. It regards life convicts to be a dangerous class and thus, violates Art 14 and similarly by completely cutting out judicial discretion it becomes a law which is not just fair and reasonable within the meaning of Art 21. So all murders are now punishable under Sec 302 of IPC, 1860.
• Jagmohan vs. State of UP [AIR 1973 SC 947]; Upholding the sentence of death, the Court held that even assuming that ‘the right was basic to the freedom’ mentioned under Article 19 of the Indian Constitution that no law could be deprived the life of a citizen unless it was reasonable and in public interest. It would be difficult to hold that capital punishment as such was unreasonable or not required by public interest. The Supreme Court observed that the Constitution makers had recognized the death sentence as a permissible punishment and had made Constitutional provisions for appeal and reprieve. Deprivation of life is constitutionally permissible under Article 21 of the Indian Constitution if it is done according to the procedure established by law.

CLASSIFICATION OF OFFENSE

Punishment-Death or imprisonment for life, and fine-Cognizable-Non-Bailable-Triable by Court of Sessions-Non-Compoundable

INTRODUCTION

Capital Punishment can also be referred to as the Death penalty. It is a government-sanctioned practice where a person is put into the death penalty by the state as a punishment for an offence. Crimes that are awarded death are known as capital crimes, capital offences or capital felonies. It includes serious offences like murder and mass murders, aggravated cases of rape, gang rape, child abuse, sedition, piracy, drug trafficking, drug-dealing, crimes against humanity, kidnapping, aggravated robbery, genocide, terrorism, etc. It has been a matter of debate for far longer and the world public opinion is largely in favor of abolishing the practice because of its barbaric nature [1]. Modern abolitionist jurists are of the view that if killing is wrong, no amount of legal or social sanction can make it right. So if it is wrong for a human being to kill anyone that it is also wrong for the state to do so. Abolition of Death penalty is largely seen as a step in the interest of human dignity in line with Article 5 of International Covenant on the Civil and Political Rights, 1996 and its protocol in 1989, besides this Article 3 of Universal Declaration of Human Rights adopted in 10th December 1948 and Article 21 of our Indian Constitution. On 31st August 2015, The Law Commission of India submitted a report to the government which recommended the abolition of the death penalty for all the crimes in India except the crimes related to terrorism and wagering war against the nation.

HISTORY

In the Colonial Era, the death penalty was one of the highest-rated punishments in the Indian Penal Code, 1860 which enlisted a number of capital crimes. It remained active after Independence in 1947. The first capital punishment case was of Nathuram Godse and Narayan Apte in Mahatma Gandhi's assassination case on 15th Nov 1949.

PRESENT TAKE ON DEATH PENALTY AS A PUNISHMENT IN INDIA

According to a source, at least 100 people in the year of 2007, 40 in 2006, 77 in 2015, 23 in 2003 and 33 in 2001 were sentenced to death but not executed.

About 26 mercy petitions are pending before the president of India, dating back to as back as in 1992.

In July 2015 the then President of India, Sh. Pranab Mukharjee had rejected mercy pleas of the Mumbai serial blast killer Ajmal Kasab, Yakub Memon and Afzal Guru. For the execution of the death penalty in India, the convict is hanged. This method has been in practice since the British Era. Sec. 53 of IPC provides for a death sentence as a form of punishment and Sec 368 of the Code of Criminal Procedure gives power to High Courts to confirm the death penalty.

Under Section 354(3) of Cr.PC, 1973, on conviction for life or imprisonment for a term of 10 years, the judgment shall state the reason for the sentence awarded and in case of death sentence the special reasons for such sentence. It thus seems that normal sentence for murder is no longer a sentence of death but imprisonment for life and only in the rarest special cases where the death penalty is awarded; reasons have to be recorded with the judgment.

The most recent case on this is the Nirbhaya gang rape, a gruesome, brutal and inhumane act that took

place on the night of 16th Dec 2012. The 23 years old victim died after suffering horrifying injuries. From the convicts, Akshay Thakur, Pawan Gupta, Vinay Sharma, Mukesh Singh, Ram Singh the juvenile who was 17years old then was convicted with a term of three years imprisonment. The others were sentenced to death. They put a Review petition under Art 137 of the Indian Constitution, Mercy petition under Art of the Indian Constitution to the present president, Shri Ram Nath Kovind and at last a Curative Petition as the last remedy but all their pleas were rejected. They have been pronounced to be hanged till death on 1st Feb 2020 at 06:00 a.m.

In comparison to the last few decades, India’s execution rates have reduced drastically. Article 21 of the Indian Constitution guarantees its citizens Right to Life and Personal Liberty which also includes the Right to live with Human Dignity. According to the article, no one should be deprived of his life and liberty except according to the procedure established by law.

CONCLUSION

While some argue that the death penalty is itself an offence against humanity. God is the creator of the planet and thus no one can abridge the right to life, not even the state. Criminals should be punished with imprisonments and fine which would make them feel the pain of the crime and time to repent their shortcomings. The criminal justice system is long a tedious and awarding the death penalty only multiplies the procedural aspect. While others argue and consider it a necessity to bring about deterrence. The death penalty debate remains a matter of controversy but India has been pretty clear of its stand till now. Lastly, keeping in mind the maxim, “salus populi est surema lex” which means that the welfare of the people is the supreme law, justice demands that courts should impose punishments befitting the crimes so that the court reflects public abhorrence of the crime.

[The author, Upasana Borah is a 4th Year law student at NEF LAW COLLEGE, ASSAM affiliated to Gauhati University]

1. https://graduateway.com/death-penalty-in-india/