International Journal of Law, Justice and Jurisprudence 2022; 2(2): 28-30

E-ISSN: 2790-0681
P-ISSN: 2790-0673
IJLJJ 2022; 2(2): 28-30 Capital punishment
Received: 12-04-2022
Accepted: 13-05-2022
Najamu Saqib and Dilraj Kaur
Najamu Saqib
Master of Laws, University
School of Law, Guru Kashi Abstract
University, Talwandi Sabo, “Capital punishment or death penalty is the highest punishment awarded in the criminal jurisprudence.
Punjab, India Many nations around the globe has abolished the capital punishment or the death penalty but in India
capital punishment has been debatable in the supreme court of India and the supreme court of India
Dilraj Kaur which is the highest court of the country has favored the retaining of death sentence due to many
Assistant Professor, University reasons discussed in this research paper. Rasha alias Raghurajsingh, executed on 09th of September
School of Law, Guru Kashi 1947 at Jabalpur central jail, is presumed to be the first person executed in independent India. Rattan
University, Talwandi Sabo, bhai jain, the first women executed in independent India, was hanged on 03 January 1955 at Tihar jail.
Punjab, India Rattan bai jain was hanged in 1955 for poisoning three girls and killing them. Life is precious and same
is protected by article 21 of the Indian constitution, inIndia the person can be deprived of his life and
personal liberty by the procedure established by the law.

Keywords: Capital punishment or death penalty, deprived of his life and personal liberty, theories of
punishment

Introduction
Capital punishment is the legal penalty for some offences under the substantive penal
legislations. Execution is carried out by the hanging of the culprit after the conclusion of trail
and exhausting all the remedies available to the excused. Capital punishment is to be very
sparingly applied with special reasons, in cases of brutal murder and gravest offences against
the state. The abolition of capital punishment, debates are raising. Whenever the court
awards a punishment there is a theories on the basis of which it passes its judgment. These
theories are known as “theories of punishment” and are generally are 5 types:
A. Deterrent theory.
B. Reformative theory.
C. Preventive theory.
D. Retributive theory.
E. Expiation theory.

The legal sanctity of capital punishment is provided under section 53 of Indian panel code
1860. Section 53 ipc reads as:
The punishments to which offenders are liable under the provisions of this code
are________.
i. Death
ii. Imprisonment for life
iii. Omitted by act 17 of 1949, section 2, (W.E.F 6.4.1949)
iv. Imprisonment which is of two descriptions, namely:
a) Rigorous, that is, with hard labor
b) Simple
v. Forfeiture of property
vi. Fine.

Section 53 of panel code 1860 is legal sanction to the death penalty in India.
The Indian panel code section 299 defines culpable homicide and section 300 defines
Correspondence Author;
murder. The simple meaning of culpable homicide is killing of a human being by another
Najamu Saqib human being. The culpable homicides are of two types I.e. lawful homicide and unlawful
Master of Laws, University homicide, the table below clarifies it more accurately.
School of Law, Guru Kashi
University, Talwandi Sabo,
Punjab, India

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Object of the study The code of criminal procedure 1973 section 354(3)
A) To study the judicial approach with regard to the capital mandates that the judge must provide the special reason for
punishment. imposing the death penalty. Section 366crpc 1973 says that
B) To discover that how state can take life of a criminal. the death sentence passed by the court of sessions is to be
C) To study about capital punishment. submitted to the high court for confirmation, and the
D) To study criminal law jurisprudence with regard to sentence shall not be executed unless it is confirmed by the
capital punishment in India. hi9gh court. Section 369 of the code of criminal procedure
1973 says that confirmation of the new sentence to be
Hypothesis of study signed by the two judges of the high court.
Ho: Capital punishment doesn’t decrease the crime rate in After post enactment of code of criminal procedure 1973
India. there was ambiguity in the jurisprudential understanding of
Ha: Capital punishment decreases the crime rate in India. special reasoned for imposing the death penalty. The
He: Whether the capital punishment serves the object of Supreme Court in the Rajinder Presadv. S state of Uttar
punishment. Pradesh. The court said that the judge should state the
special reasons for imposing the death sentence. The court
Constitutionality of capital punishment departed from the retributive theory and emphasizes on the
The 35th law commission report in response to the resolution deterrence and reformative theory as a social goals. Justice
moved by the Raghunath Singh the then Lok Sabha V.R Krishna iyer in this case commented that “the special
member. The law commission of India stressed that death reason must relate, not to crime but to criminal. The crime
penalty should be retained because the conditions of the may be shocking and yet the criminal may not deserve the
country demands so due to the increasing crime rate in death penalty”
India. The first challenge of capital punishment came in Death penalty was again challenged in the bachan singhv. s
year 1972 in the case of jagmohan Singhv. S state of utter state of Punjab. It was argued that death penalty is
Pradesh, the judgment came before the code of criminal unnecessary, cruel, inhuman and degrading treatment and
procedure was reenacted in 1973. Where by the death death sentence does not serve the purpose of deterrence.
sentence constituted an exceptional sentence it is argued that Furthermore the validity of section 302 of I.P.C and section
death penalty violated the right to life and equality as 366(2) of code of criminal procedure was challenged in this
guaranteed by the constitution of India under article 14 and case on the ground that the death penalty is arbitrary and
21. vehicle. Supreme Court by 4:1 majority did not accept this
The Supreme Court refused to accept this argument and held contention and affirmed the constitutional validity of death
that the death sentence is pronounced after detailed sentence but propounded the new concept of the doctrine of
recording and evolution of aggravating and mitigating (rarest of rare) in the criminal law.
circumstances, thus such procedure justifies the imposition Jurisprudence. Further, in the case of Macchi Singh and
of capital punishment and does not violate article 21 of the others V. state of Punjab 4_ the three judges bench of the
Indian constitution. The judgment also discussed the U.S supreme court follow the decision of bachan Singh’s case &
supreme court struck down the death sentence scheme as it submitted that only in rearest of rare cases when collective
violated the eighth amendment of the U.S constitution as conscience of community is in such a way that it will expect
being cruel and unusual punishment, the supreme court of the holders of judicial powers to inflict death penalty then it
India refused to accept this reason and stated that there are can be awarded if
no rational basis for concluding the death sentence as 1) When the murder is committed in an extremely brutal
unconstitutional because the Indian constitution doesn’t manner so as to arouse intense and extreme indignation
have an equivalent to the 8th amendment. of the community.

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2) When a murder of a member of a schedule caste is prove his innocence. The concept of capital punishment is
committed which arouse social wrath not new still it was discussed many times in the supreme
3) In case of “dowry death”. court of the India and the Supreme Court has been in the
4) When the crime is enormous in proportion. favor to retain this kind of punishment. The concept of
5) When the victim of murder is- capital punishment needs more discussions and debates as it
 An innocent child. is the need of the hour as 75 nations around the globe has
 A vulnerable woman or a person rendered unaided by abolished the death penalty for all the crimes.
mature apoch or illness.
 Once the injured party is individual in relation to home References
the slaughterer is in point of authority. 1. Articles published in AIR journals
 As soon as the injured party is civic figure as well as 2. The Supreme Court and capital punishment 2016.
murder is committed for political or similar reason 3. PK supreme court on the rarest of rare cases.
rather than personal reas 4. James A Mccafferty, capital punishment, published by
a division of transaction publisher 2010.
The capital punishment was again challenged in the 5. Gopal ghandhi, Abolition of death penalty; why india
Supreme Court in Mithuv state of Punjab. Section 303 I.P.C say no to capital punishment published by indera
which provided for the mandatory sentence for offenders international centre. 2016.
serving the life sentence was discussed. The Supreme Court 6. Jagmohn V. State of U.P 1973 air 947, 1973 scr(2) 541.
held sec.303 I.P.C is based on logic that any criminal who 7. Rajinder Parsad V. State of UP 1979 AIR 916, 976
convicted for life and still kills someone is beyond SCR, (3) 78.
reformation & the only suitable punishment for such culprit 8. Bachan Singh V. State of Punjab, AIR 1980 SC 898
is death penalty. 9. Machhi Singh, Others V. state of Punjab, 1983 AIR 957
10. Mithu V. State of Punjab, AIR 1983 supreme court 473,
4. Capital punishments for the offences under the Indian 1983 CRILJ 811
penal code are as under
1. Section 121: Waging or attempting to wage war against
the government of India.
2. Section 132: Abetting of mutiny actually committed.
3. Section 194: Giving or fabricating the false evidence.
4. Section 195-A: Threatening or inducing ay person to
false evidence resulting in conviction and death of
innocent person.
5. Section 302: Murder
6. Section 305: Abetting of suicide of child or insane
person.
7. Section 307(2): Attempting murder by serving life
convict.
8. Section 364-A: Kidnapping for ransom.
9. Section 376-A: Rape and injury which causes death or
leaves women in persistent vegetative state.
10. Section 376-AB: Rape of child below 12 years.
11. Section 376DB: Gang rape of child below 12 years.
12. Section 376E: Certain repeat offences in context of
rape.
13. Section 396: Dacoity with murder.

Conclusion
The capital punishment is the one of the way by which the
habitual offenders are eliminated from the society, as every
human being wants a crime free society. The capital
punishment is retained because it serves the purpose of the
deterrence. Humans are not angels and can do wrongs but
the wrongs which are heinous and against the society and
the state are called the crimes, for which the state has made
penal legislations and different kind of punishments are
there in the the criminal law jurisprudence. Capital
punishment being the highest kind of punishment and not
the new invention in the criminal law jurisprudence, it has
been there from time immemorial. The accused is executed
after following all the procedural formalities. The person
awarded the death penalty has right to appeal before the
high court then the apex court, governor of the state and
finally he can approach the president of India. The
convicted person is provided with many opportunities to

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