CAPITAL PUNISHMENT

INTRODUCTION

The use of capital punishment has long been a controversial subject. There are many who favour its use, while there are others who strongly oppose it. Capital punishment is the ultimate punishment one can receive from a court of law. This type of punishment has existed for centuries. Historically, governments have sentenced criminals to death for major and minor crimes against government, their leaders and members of their society. Often, capital punishment was administered in a harsh manner, such as public hangings.

WHAT IS SEXUAL OFFENCES?

Any crime that involves sexual intercourse or any other sexual Act. The main crimes in this category are rape, assault, sexual assault. It is a specific criminal     offence under the sexual offences act, 2003.

 GANG RAPE?

Where a women is raped by one or more persons constituting a group or acting in furtherance of a common intention . Section 376 D makes punishment very severe in case of gang rape that may be imprisonment till the natural life of the person depending on the gravity of the offence . This section says that where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention , each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life , and with fine : provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim : provided further that any fine imposed under this section shall be paid to the victim .

 

WHAT IS CAPITAL PUNISHMENT?

Capital punishment is the legal killing of a person who has committed a serious crime. capital punishment is also known as the death penalty, death imposed as a punishment for crime . It may also be defined as punishment for committing murder, treason and other capital crimes. A capital crime is a crime where the death penalty can be used against the person convicted of committing that crime.

CASE

State Through Reference vs. Ram Singh & Ors.

Date of judgement – March 13, 2014

  FACTS

1. The incident is of dated 16-12-2012. As per allegations, the complainant and his friend, the prosecutrix, had gone to PVR, Saket, New Delhi, for watching a movie. They came out of the said place at about 8:30 PM and reached Munirka Bus Stand at 9 PM in an auto, where they were lured to board a white coloured chartered bus by its conductor. Both of them boarded the bus. They saw four boys in the driver’s cabin and two boys sitting behind the driver’s cabin i.e. one on the left and another on the right side. The complainant and the prosecutrix both sat on the left side – second seat in the bus and paid fare of Rs.20/-. As the bus reached near Airport Flyover, three boys came out of the driver’s cabin. Two of them started abusing the complainant, asking him as to where he was taking the prosecutrix in the night. One of them hit the complainant. As the complainant resisted, two other boys joined the assailant in beating the complainant with iron rods lying in the bus. As the prosecutrix came forward to save the complainant, two of the assailants pushed her to the back seat. While the complainant was caught and being beaten ; the other assailants took their turn to have sexual intercourse with the prosecutrix. They brutally ravished her by raping her ; doing unnatural sex and also damaged her internal organs and genitals by inserting iron rods into it and causing injuries dangerous to her life. The assailants even robbed the complainant of his mobile phone, his purse containing Rs.1000/- ; his bank cards ; made him naked by taking away his clothes and even his black hush puppy shoes. Similarly the mobile phone of the prosecutrix, her ATM card, was all robbed. The assailants then tried to throw both the complainant and the prosecutrix out of the moving bus from its rear door but since it could not open, so they brought them at the front door and threw them out of the moving bus at National Highway No. 8 near Mahipal Pur flyover by the side of the road. They both were noticed by the passer bys. Police was informed and they were brought to Safdarjung Hospital, New Delhi for their medical examination. The statement of the complainant was recorded.

2. The crime team lifted the exhibits from the spot near Mahipalpur flyover, where the complainant and prosecutrix were found lying naked.

3. The description of the bus was given by the complainant, as having a separate cabin for its driver ; red colour seat covers, yellow curtains on its windows and it was a 3 X 2 sitter. The CCTV camera footage, installed at Hotel Delhi Airport, Mahipal Pur, New Delhi, just opposite to this spot, near the time of incident, was obtained and it showed the bus of similar description passing twice in front of said hotel, firstly at 9:34 PM and secondly at 9:53 PM i.e. close to the time when one Raj Kumar first noticed the victims, lying naked by the side of Mahipal Pur Flyover. The complainant identified the bus in the footage.

4. The search operations were conducted and bus bearing no. DL-1PC-0149 was found parked near Ravi Dass Camp, R.K.Puram, New Delhi. Accused Ram Singh since deceased, was found sitting in it and he was interrogated and arrested. He led to recovery of his bloodstained clothes, iron rods and the documents concerning the bus and also disclosed that he threw the SIM card of complainant’s mobile in the morning of 17/12/2012 in the area of Noida, which was later seized from one Jishan, who found it in Sector-37, Noida, UP. The bus was inspected by CFSL Team and exhibits were seized. Accused Ram Singh, since deceased, refused to participate in TIP. He led to the arrest of other accused person namely accused Vinay Sharma and accused Pawan @ Kalu.

5. Accused Vinay Sharma got recovered his bloodstained clothes, hush puppy leather shoes of the complainant, the mobile phone make Nokia Model 3110 of Black grey colour belonging to the prosecutrix. Similarly accused Pawan Kumar got recovered from his jhuggi his bloodstained clothes, shoes and also a wrist watch make Sonata and Rs. 1000/- robbed from the complainant. These accused refused to participate in the TIP. On 18-12-2012, accused Mukesh was apprehended from his native village Karoli , Rajasthan and a Samsung Galaxy Trend DUOS Blue Black mobile belonging to the complainant was recovered from him. He was brought to Delhi and was arrested after interrogation. Later on 23.12.12, he got prepared the route chart of the route where he drove the bus at the time of incident. Besides that, he got recovered his bloodstained clothes from the garage of his brother at Anupam Apartment, Saidulajab, Saket, New Delhi. He was identified by the complainant in the Test Identification Parade . On 21.12.2012, the juvenile was apprehended from ISBT and an ATM debit card of the prosecutrix and a mobile phone, besides his SIM were seized. On 21.11.2012, accused Akshay was also arrested from Aurangabad, Bihar. He led to his brother’s house in village, Naharpur, Gurgaon, Haryana and got recovered his bloodstained clothes. He was identified by the complainant in the TIP proceedings. He also got recovered a ring belonging to the complainant, two metro cards and a Nokia phone with SIM of Vodafone company.

6. The mobile phones of the accused person, as also of the complainant and the prosecutrix were all seized and call details records with requisite certificates u/s 65-B of Indian Evidence Act were obtained by the police.

7. The prosecutrix on 16.12.12 gave a brief history of the incident to the doctor in her MLC. On 21.12.12, on being declared fit, she gave her statement under section 164 CrPC to the SDM. Even on 25.12.12, her statement under section 164 CrPC was recorded by Shri Pawan Kumar, Ld. MM by putting her multiple choice questions and through gestures. On 27.12.12, she was shifted to Mt. Elizabeth Hospital, Singapore for her further treatment. Unfortunately, on 29.12.12, she expired due to sepsis with multiple organ failure with multiple injuries.

8. Hence sections 307 , 201 , 396 ,302  of IPC were all added. The MLCs were collected and medical opinion were obtained from the doctor as also their opinion on the weapons used. The DNA profiles were made of all the accused, of the victims and its reports were obtained and accordingly, on 03.01.2013 charge sheet was filed by the prosecution under section 365,376(2)(g), 377, 307, 395,397, 302, 396, 412, 201, 120,34 IPC.

 view point

Age cannot be a yardstick to justify crime . A person can’t be stated as juvenile on the basis of his age rather mental maturity should be the point of reference . India presently ranks 4th in the world’s list of most dangerous place for women and Delhi first in India . It shows where our present judicial system stands And a vital question i.e. Are people at all scared of police or do they respect our law of land at all .When the offending party first Dacoited a passenger and forced him to step down the buses . He reported the whole fact to the traffic police with reference to bus number but no action was taken by the police . the Cost of carelessness of the police was paid by this poor brave girl . She wanted the court to give death sentence but the quality of justice she got was 3 yrs of imprisonment of the curliest just because of his age. If the judicial system goes on this manner very soon a time will come when people will have zero faith on the system. If all of them did the same mistake with a common intention then why will one of them get less punishment while others will have to suffer more . as per the proverb ” Ignorance of fact is tolerable but ignorance of law is not tolerable” . If a person is able to go beyond his age and commit a crime then in the same manner he should be ready to suffer the punishment .

As per section crpc section 164 – confessions and statement were recorded of the victim by multiple choice questions . As per IPC Section 307 – Attempt to murder , Section 201 – Causing disappearance and giving false information to screen offender . Section 396 – Dacoity with murder , Section 302 – punishment for murder , Section 365 – Kidnapping or abducting with intent secretly and wrongfully to confine persons , Section 377- Unnatural offences , Section 395 – Punishment for Dacoity , Section 412 – Dishonestly receiving stolen in the commission of a Dacoity , Section 34 – Acts done by several persons in furtherance of common intention .

SUMMARY

The victims, a 23-year-old female physiotherapy intern and her male friend, were on their way home after watching a film in Saket in South Delhi. They boarded a chartered bus at Munirka for Dwarka that was being driven by joy riders at about 9:30 pm. The minor among the accused had called for passengers telling them that it was going towards their destination. The woman’s friend became suspicious when the bus deviated from its normal route and its doors were shut. When he objected, the group of six men already on board taunted the couple, asking what they were doing alone at such a late hour.

When the victim’s friend tried to intervene, he was beaten, gagged and knocked unconscious with an iron rod. The men dragged the woman to the rear of the bus, beating her with the rod and raping her while the bus driver continued to drive. Medical reports later suggested that the woman suffered serious injuries to her abdomen, intestines and genitals due to the assault, and doctors say that the damage indicates that a blunt object (suspected to be the iron rod) may have been used for penetration. That rod was later described by police as being a rusted, L-shaped implement of the type used with a wheel jack. After the beatings and rape ended, the gang threw the two from the moving bus. Then the accused allegedly tried to drive the bus over the woman but she was pulled aside in the nick of time by her male friend. One of the perpetrators later cleaned the vehicle. Police impounded it the next day. As she was pinned down and raped, the young woman put up a fight but was hopelessly outnumbered. She bit three of the men assaulting her. The bite marks on the three accused men are likely to be part of the Delhi Police’s evidence in their charge sheet.
The woman and her companion were found by a passerby on the road, partially clothed and unconscious, around 11 pm. The passerby phoned the Delhi Police, who took the couple to a hospital, where the female victim was given emergency treatment and placed on mechanical ventilation. The victim was found with only 5% of her intestines left inside of her. A doctor at the hospital later said that the “rod was inserted into her and it was pulled out with so much force that the act brought out her intestines also. That is probably the only thing that explains such severe damage to her intestines.”

CONCLUSION

Little changes came after this miserable event in the history of such event. Government amended many law. Many committees were formed which supported women protection in public place , offices , transportation etc.

Safety measures in public transport for women

  1. ·         Some measures taken by the Government for the safety of women in Delhi are as follow:
  2. ·         Installation of GPS devices on all public buses
  3. ·         Verification of the crew of all public transport vehicles, including owners of chartered buses
  4. ·         Appointment of lady police officers
  5. ·         Increasing the number of PCR vans
  6. ·         Recruiting more people for the proper running of transport department
  7. ·         Introduction of Home Guards in the night buses of DTC
  8. ·         Police verification of school bus staff
  9. ·         CCTV cameras at various places in Delhi. At present, CCTV cameras are operational at 34 markets and four border check posts in Delhi.

·         The Government announced in 2013 that verification needs to be done by the Delhi police on all passenger vehicle drivers and after that the transport department would issue public service vehicle (PSV) badge to them.

·         The Criminal Law (Amendment) Ordinance, 2013 was promulgated because more than 80,000 suggestions from the public were considered and the committee submitted a report in which it was mentioned that the root causes behind crimes against women were the failures on the part of the Government and police. Certain stringent changes in laws have been made and six new fast-track courts were set up only for rape cases. The objective was to reduce the number of rapes and sexual harassment cases. The amended laws have made it clear that there is now harsh sentence for rape convicts which include death as well as life term penalty, stringent punishment for other offences against women like eve teasing, acid attacks, stalking and voyeurism. Various sections of the Indian penal code , the Indian Evidence Act, the Code of Criminal Procedure, and the Protection of Children from Sexual Offences Act have also been amended by the Government .According to law, a rape convict can be sentenced to imprisonment for not less than 20 years, and can extend till his natural death. Rape convicts who are repeat offenders can be sentenced to death. Stalking and voyeurism, for the first time, have been considered as non-bailable offences, while an acid attack convict can be sentenced to a 10-year imprisonment.

 

 

Punishment and the application of law

 
logoPunishment and the application of law/ the law and order and the application of same law with different views

 INTRODUCTION:

Bhagwati, J delivering the judgment on behalf of himself, Chandrachud and Krishna Iyer, JJ. Propounded the new concept of equality in the following words-“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrine limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in public while the other, to the whim and caprice of the absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

Article 14 of Constitution of India declares that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. The phrase “equality before law” occurs in almost all written constitutions that guarantee fundamental right. Equality before the law is an expression of English Common Law “equal protection of laws” owes its origin to the American Constitution.

Both the phrases aim to establish what is called the “equality and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection off all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.

Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration. But why there are different types of treatment with some criminals like: Dhananjoy Chatterjee, Afzal Guru, Kasab??? .

The arguments on the side of the retentionists are equally strong. However, in India the Supreme Court has made death penalty applicable only to the “rarest of rare cases” – the cases where the act is no less than shocking to human conscience. It has also recommended that a convict, whose death sentence has been confirmed by a High Court, should have the statutory right to appeal to the Supreme Court and that his/her appeal should be heard by a five-Judge Bench. Amnesty International, India, insists that the verdict of the death sentence should be unanimous by the Judges. These safeguards could further limit the scope for judicial errors in the award of capital punishment.

 

CONCEPT OF DEATH:

Death and its concept are absolutely empty. No picture comes to mind. The concept of death has a use for the living, while death itself has no use for anything. All we can say about death is that it is either real or it is not real. If it is real, then the end of one’s life is a simple termination. If it is not real, then the end of one’s embodied life is not true death, but a portal to another life.

This used to be a universal practice in North America. However, in recent decades, almost all democracies in the world have abandoned the death penalty. The U.S., Japan, and South Korea are the only exceptions. Of course, most dictatorships and theocracies in the world retain the death penalty as a terror weapon.

“It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime.” In the early 1970s, the top argument in favor of the death penalty was general deterrence. This argument or hypothesis suggests that we must punish offenders to discourage others from committing similar offenses; we punish past offenders to send a message to potential offenders. “In short, a remarkable change in the way the death penalty is justified is occurring. What was once the public’s most widely cited justification for the death penalty is today rapidly losing its appeal?”

 

History of Capital Punishment:

The Capital Punishment has always been a part of the Indian Judicial system. It was incorporates on to the Indian Penal Code right from its beginning in 1860. Similarly, it was also present in the Criminal Procedure Code (1898). According to Section 367 of the Cr.PC, a person convicted of murder was to be sentenced to death. And this was to be the general rule, not an exception.

A commendable feature that we notice is that right from the days of British rule, there has been strict opposition to enforcing the Capital Punishment. In 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a bill in the assembly which proposed to abolish the death penalty in the country. However, it was overturned. Even after Independence, there have been several attempts, both inside and outside the parliament, to force the abolition of death penalty. Of these efforts, those by Prithviraj Kapoor (He was also a member of the Rajya Sabha) in 1958 and by Raghunath Singh in the Lok Sabha in 1962 are not worthy. Even in contemporary times, there has been strict opposition to the death penalty. Unfortunately, such activities come to the fore only when the sentence is about to be executed.

In 1974, there came in to force a new Criminal Procedure Code. One of the major features of the new Code was the overturning of the over ruling regarding the death penalty. By the new code, for all offences involving murder, life imprisonment was to be the norm. The death penalty was to be awarded only in exceptional circumstances.

CASES:

The landmark cases where the death sentences were awarded in India are Ranga Billa case, Indira Gandhi and Rajiv Gandhi Assassination case, Laxman Nayak case and most recently in 2004 Hatab case of West Bengal where accused Dhananjoy Chatterjee a security guard was sentenced to death after he raped and murdered a young girl whose mother had complained against him of eve teasing, hanged on 14 August, 2004, on his birthday, after Supreme Court affirmed the death sentence awarded by the lower courts. The President also declined his plea for pardon. The Dhananjoy Chatterjee case shows that both judicial and non-judicial decisions on a death sentence are guided by public outrage over the gravity of the crime committed.

Chatterjee is only the 55th person to be executed since Indian independence in 1947, and recently Kasab also. In the face of significant opposition to state executions, trials and appeals in such cases are usually lengthy and the death sentence rarely carried out. Between 1991 and 1998, 700 people were sentenced to death, but most are still involved in judicial appeals or have been granted clemency.

Recently, on 28 February, a Supreme Court bench comprising Justice AK Patnaik and Justice Swatanter Kumar elaborated on its clear preference for life rather than death while commuting a death sentence awarded by a Bilaspur trial court to life imprisonment. The case was related to four convicts who were held guilty of raping a married woman who died later. Justice Kumar emphatically observed that “the basic principle, stated repeatedly” by the Supreme Court is that “life imprisonment is the rule and death penalty an exception.”

As Justice Kumar explained, “In our opinion, the measure of punishment in any case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

It was in Bachan Singh v/s State of Punjab (1980) that the Supreme Court rejected the challenge to the constitutional validity of awarding the death penalty and held that it should not be imposed except in the “rarest of rare cases”. The court also enunciated some of the mitigating and aggravating circumstances required to be kept in view while considering the sentence.

In Ajitsingh, the Court has relied on Machhi Singh (1983) and Mohd. Mannan v/s State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court has drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction. See lethal lottery-the death penalty in India, Amnesty International and PUCL, May 2008.

Mulla v/s State of UP should be viewed as the first step towards answering a larger question: Whether the Indian State shall continue with the lethal lottery of death penalty? At any given trial for murder today the chances of a person being hanged or not depend solely on the whims and fancies of the judges, so much that in a recent judgment the Supreme Court has expressed the fear that arbitrary sentencing may lead to a violation of Article 14 of the Constitution. , . In the impugned judgment while the convicts were spared the noose owing to their having served fourteen years in jail, a very different conclusion was reached by the same Court in Dhananjoy Chatterjee alias Dhana v/s State of West Bengal who had served an equal period in jail. The Supreme Court itself has remarked in Aloke Nath Dutta and Ors v/s State of West Bengal on the arbitrary nature in which the death penalty is awarded or commuted. While getting into the merits and demerits of the death penalty is beyond the scope of this research, the authors would like to quote Dr. B.R Ambedkar on the issue:

“This country by and large believes in the principle of non violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”

Till that is done, judgments like the one discussed here will provide the humanitarian face to a retributive law.

Another landmark case decided in the Bombay High Court resulted in the release of hundreds of under-trial prisoners, who had languished in prisons for far beyond the maximum term of their punishment, due to slow court procedures. . However, statistics still demonstrate that 70% of India’s prison inmates are under trials and much remains to be done to improve the criminal justice system of the country.

ROLE OF JUDICIARY:

In the year 2003 government laid a Bill in the Parliament, which proposed to add a provision of death penalty in Drugs and Cosmetics Act. After the new government came in power in June 2004, President Dr. A.P.J. Abdul Kalam suggested that Parliament should consider the abolition of death sentence altogether.

Kasab’s arguments for a review of his death sentence that was awarded by a trial court on 6 May 2010 and upheld by the Bombay High Court on 21 February 2011, tilts heavily in favour of the factors listed under the “mitigating circumstances”. For example, senior advocate and amicus curie Raju Ramachandran, who argued the case on behalf of Kasab in the SC, cited his young age (21 at the time of the terror attack) as an important factor that had to be considered. Also, that he was not acting on his own but was under the influence of “skewed religious faith and false ideology”. Though kasab is the puppet of anti-social elements he got death punishment for the crime he had done. Killing a life for the prosperity of the society is an acceptable equation in the civil society not only kasab, the terrorists involved in the Samjhota express blasts, malegaon, mecca masjid, Ajmer blasts, should be brought to the notice of the court and their crime should be proved like what happened in kasab’s case and they should be hanged. No body should use the name of God for terrorism

as no God has preached the killings. This punishment will send signals to those who sought religion as a tool against humanity. Human rights activists should take up the issue of fake encounters against innocents, happening in our country, rather than opposing capital punishment to the proved criminal. I vaguely remember Mahatma Gandhi’s opinion that dogs that have become mad due to rabies have to be killed and cannot be saved or reformed.

 

The prosecution lawyer Ujjwal Nikam has categorically stated that the terrorist should be awarded capital punishment as “This is the rarest of rare cases. He should not be entitled to any mercy.”

If we keep them in jail for life, we will only encourage their compatriots to try and save them. Have we forgotten the shameful episode of Jaswant Singh releasing Terrorists to save our brothers in Khandhar Hijacking?

Why leave ourselves open to such blackmail in future? Why keep these worthless folks alive? India is good place for criminals to live happily…

The constitutional power is that the President has the power to disagree with the Supreme Court both with its findings of fact and law. But others are of the view that such a sweeping Constitutional power cannot be given to the President in as much as it would subvert the concept of justice enshrined in the Constitution.

One very critical role of the President is the responsibility he has to take while dealing with a death penalty. The decision of death penalty given to a person by Indian Law can be overturned only by the President. This is one of the most crucial decisions that a President may have to make while respecting the legal procedure involved in the particular case. Death penalty in India is imposed only in the rarest of rare cases according to the rule of Supreme Court of India.

The term ‘justice’ in the Preamble embraces three distinct forms- social, economic and political, secured through various provisions of Fundamental Rights and Directive Principles. Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any particular section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non- discrimination between people on the basis of economic factors. It involves the elimination of glaring in equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as ‘distributive justice’. Political justice implies that all citizens should have equal political rights, equal voice in the government. The ideal of justice- social, economic and political- has been taken from the Russian Revaluation .

 

Indian Judiciary system: So slow and lethargic

The Indian Judicial system is supposed to protect the common man from lawbreakers and offenders. But in reality it serves the political authorities and provides protection to gruesome criminals who are subtly baked by the politicians. The role of Indian Judiciary in securing law and order across the country should be impartial and free from all sorts of external or unauthorized influences.

Most negative aspect of Indian Judiciary system is its lethargic and slogging approach. There are countless instances wherein cases run for decades and the defendants pass away being awarded with the proper judgment. Indeed this is shameful for any civilized country that boasts about its advancing prosperity. According to the records till January 2005, more than 30,000 cases pending at the Supreme Court, 33.79 lakhs in high courts and more than 2.35 Crore in lower courts. With respect to the population of India, the ratio of judges to people is 10.5:10,00,000 which is no doubt the poorest in the world.

There should be an even arrangements for the pending cases and the new cases. The court remains closed for days just like school holidays which are nothing but an unnecessary luxury. With so much work pending, Government should trim down the number of holidays and day offs. Legal system should not be a purchasable commodity any more. Politicians should be strictly restricted from directly or indirectly interfering in judgments. Moreover the corrupt political leaders must be treated with utmost stringency.

But, in Kasab’s case.. his death sentence was upheld by the Supreme Court on 29 August 2012, and his mercy petition was rejected by the President on November 5. Stating that eleven mercy petitions from persons on death row were pending before the President prior to Kasab filing his petition, he said the convict’s lawyer and family in Pakistan were not informed of the imminent execution which was in violation of international standards on the use of the death penalty. The manner in which Kasab was hanged raises more questions than

answers.

It is hard to believe Home Minister’s Version that the PM was unaware

of the Hanging. If the PM was unaware how did the High Commissioner

deliver the information on Kasab’s Hanging to Pakistan before he was

hanged. Did the home ministry inform Indian High Commissioner without

informing the external affairs minister and the prime minister?

Did the Home Ministry Inform the High Commissioner through the external

affairs minister without informing the prime minister?

Did the External Affairs Minister act without informing the prime

minister?

It looks like the Government is Hiding Something.

Kasab was a weapon, used by terrorists and then by politicians. Victims are we people!

PRESENT SITUATION:

While the death penalty is legal in India, there is a growing lobby of highly influential persons and others who are pressing for its abolition. They include such notables as the senior Supreme Court lawyer Colin Gonsalves, former Supreme Court Justice AK Ganguly and Justice KT Thomas, whose bench upheld the death penalty in the Rajiv Gandhi assassination case.

Commenting on India’s growing ambivalence on the contentious issue of death penalty, The Economist observed in October 2011 that the case of Ajmal Kasab is being viewed as a “big test” for India. “It will be a brave Indian who demands that he be spared.”

Internationally, Amnesty International is in the forefront in challenging the death penalty while calling it “the ultimate denial of human rights” and “the premeditated and cold-blooded killing of a human being by the state in the name of justice.” What about all those innocents who were killed by Kasab??? Kasab killed Indians in cold blood if he would not be hanged and then he would have point his thumb at the nose of Indians and on the families who lost their loved ones due to acts of this terrorist.

This “rarest of rare” business is one day going to lead to a situation where even to arrest someone who has committed a crime; we will be doing the rounds of the courts that the crime was rarest of rare. The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.”

Judge: Kya bhai, kya kar diya ab?

Accused: Zyada kuch nahi huzoor – 3 khoon, 2 rape, jisme se ek saat saal kee bachchi thee, 14 bomb blast jisme do charso bakrey murey….

Judge: Ummm…mmm ; nothing rarest of rare here. Let the accused be set free. We are a liberal country….

But that will be OK because Congress will do whatever it takes to get the votes of Muslims. We all saw the real face of Congress during recent UP elections. What a shame. Bad luck for our country.

Whether death penalty is to be continued or not, is a different debate. But Kasab’s case is plain and simple; he was a cold blooded murderer and deserves no mercy. Death penalty would be an easy way out for him in fact…He should be made to regret every moment of his life for what he did. Reformation is not possible for such animals, though it may be fashionable for human rights activists to argue so.

There was a better chance of him dying of heart attack, his cholesterol levels would be going up with all the food items, Biryani that he was eating inside! I don’t understand that why our government was providing him all sorts of facilities inside the jail.. and why not he was treated like other criminals.. The Maharashtra Government has spent over Rs. 25 crores to keep 26/11 terrorist Ajmal Kasab alive since he was captured in 2008. Speaking in the Maharashtra Assembly state Home Minister RR Patil gave details of expenses for the sole surviving Pakistani terrorist.

Even as Kasab’s trial continues in the Supreme Court, the cost of keeping him alive is a huge burden on the state exchequer. While the Government has spent Rs. 5,25,00,000 on his high security cell at Mumbai’s Arthur Road jail, his security entrusted to the Indo Tibetan Border Police (ITBP) has cost the state over Rs. 19 crores.

Mr Patil also said that the state has once again asked the Centre to waive the charges, since terrorism is not a state subject alone. On the other hand, the cost of salaries of the policemen who protect Kasab cost the state Rs. 1,22,18,406. While his medical expenses cost Rs. 28,066, the state has paid another Rs. 34,975. There were many rights and privileges that kasab had in jail..

Also if we let him live, thousands will come onto our soil from pak ( as pak is imploding ), kill a few and spend rest of life in safe jails ( instead of being killed piece by piece in pak )

And if we keep him in jail who will pay bills???

We are not even able to feed our own country, You want to spend millions on feeding and security of a killer terrorist ???? All are equal in the eyes of the law but some are more equal than others.

Today there is no fear amongst the criminals. And unless there is a fear of punishment, there is no way we can see a drop in the crime rate. Our Preamble provides us many Acts for criminals, infect there is fixed punishment for each and every crime but still neither crimes are stopping nor criminals are minimizing. Instead, if these criminals are executed immediately after their crime, it will instill such a fear in the minds of people that such acts will come down drastically. Will this happen is a million dollar question!

Hypocrisy is the standard of Indian psychology, either abolish death penalty immediately or continue to use it without any of so called ‘reservations’ and end the waiting of more than 100 convicts who still do not know their fate. Death penalties are needed to have an order in the society, no rapist, murderer or a dacoit should feel ‘safe’ thinking whatever they do and get convicted they can still be alive and well and ‘stay’ in jails forever.

If religion and provocation and age are the factors which can bestow life for the criminals, terrorism in India will become the order of the day. Anybody can enter within our territory, any time and kill as many people as they like. In short there is no value for the life of an Indian in the eye of our own Judiciary.

17 mercy petitions pending before president:-

Mercy petitions of 17 people on death row were pending before former President Pratibha Patil. Most of the pleas are from those convicted of murder or rape. The petition of Sushil Mumu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Like this case many mercy petitions are pending before the President.

Pros and cons for death sentence

Different countries have different guidelines for Capital Punishment. In some countries, drug trafficking and corruption may be a capital offense, while in others, death penalty is only given to murderers. I think capital punishment is a very good way of making people scared of committing crimes and understanding the value of others life which they take away from them without even thinking once but there is a great constraint to this that not all who are accused are criminals there is a never ending list of innocent people who have beard the pain of a punishment which they never committed although there are some crimes which are clearly evident like rape should be given capital punishment, because it is a deliberate act and for some other cases the extent and severity of crime should be considered..

You see, a thief is always a thief and a murderer is always a murderer. Why should the government waste people’s taxes on thieves and murderers? Even when you hurt an animal you get a punishment under law. Then what is the punishment for killing 166 people. Is it keeping him in prison and teaching him values with good food & place to sleep with our tax money.

The Sikhs don’t want Bullar and Rajoana to be hanged, the Tamils don’t want the Rajiv assassins to be killed and the Kashmiris don’t want Afzal Guru to be killed. In fact, what all these communities together are asking for,…”It’s wrong to surmise everyone in respective communities wanted that way! No generalization please! aam aadmi is not at all interested in the issue. Let the law makers, not the President, decide about the fate- after all, their own ‘house’ was attacked!

 

Justice AK Ganguly of the Supreme Court has termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system.

Describing this as his “personal view”, Justice Ganguly said the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The doctrine of the crime falling in the ’rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges, he said, adding the “sentencing structures” should be in consonance with the goals set by the Constitution. The guilt of an accused should be proved beyond “lingering” doubt in cases warranting the award of capital punishment, which has so far not yet been evolved.

I don’t know where the hell Indian sentiment is! Instead of showing some toughness on terrorism, politicians are busy protecting their vote banks. With this kind of politics, we are sowing the seed of disintegration. We have proved ourselves as the soft state, completely non-serious about the rule of law, where religion and politics comes first and rule of law comes third. It is only in India where persons like Kasab and others found guilty on waging war against our country can survive so long. Take example of US and UK where the convicted were tried and executed with in a short period. But in India we keep on trying if some one is non Hindu.

He cautioned that before giving death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances”. The Judge said the state must adduce evidence that the accused cannot be reformed.

This strategy results in a tit-for-tat game with the two sides retaliating to each other’s actions in similar fashion. If there is a man linked to India on death row in Pakistan, be assured there will be one awaiting a similar fate in India. Today, Mohammad Afzal Guru stands convicted in India for storming the Lok Sabha in December 2001. In Kot Lakhpat jail, Lahore, we have Sarabjit Singh arrested in 1990 and convicted of carrying out serial bomb blasts in Faisalabad, Kasur and Lahore.

Sarabjit’s case will be coming up in court shortly and there are many reasons why thousands in Pakistan, as well as India, feel that he should not be hanged.

Sarabjit was sentenced to death in 1991 by Lahore’s anti-terrorism court. He filed a petition before the Supreme Court which was dismissed in 2005 on the grounds that it was time-barred. An appeal to review the petition was again dismissed in June 2009 when the government-appointed lawyer for the convict failed to appear before the court on two consecutive occasions when the case came up for hearing.

 

CONCLUSION:

Anti-death sentence lobbyists ask if the rapist-killer’s death sentence is commuted, would it not give him an opportunity to reform himself, and spread the message of non-violence to others with similar criminal intent. Is death penalty the only form of justice that could satisfy the family of a victim and society at large? Apparently, these issues are debatable, and in the absence of any legislation and judicial decisions, the debate will largely remain academic.

The lack of professional hangmen should make the Law Commission’s 187th report to the government, submitted in October 2003, worthy of consideration. The Commission recommended alternative methods such as lethal injection, which would require rendering the convict unconscious with anaesthesia before injecting the lethal dose, in view of the physical pain and suffering a convict undergoes when he or she is hanged until death. I can’t explain why but I feel pity for him. We should be criticizing the system that creates situations where ordinary people turn to killing people to feed their family. It’s very unfortunate what happened. Please do not spread hatred…..he was a young man lured in by terrorist….no one is born a terrorist but made a terrorist by extremists…..he was a poor person who was lured in to do this because of money….I am Indian myself, but not a hater….do not show others that we Indians are haters…..

In India “death in the midst of life” is a literal, not figurative, notion. Along the Ganges River, for instance, bodies are regularly cremated, and the odor of burning flesh fills the air. And in the city of Calcutta, dead bodies become a problem to those responsible for keeping the streets clean. Thus, it is not surprising that in India’s sacred texts and stories, how one’s life determines one’s fate after death.

What we should do with the Godhra culprits…about 1000 people were killed during riots why we talk only about hanging Kasab? What about Modi who was the one n only one person/ maker of 2002 riots, that was not created by normal people it was a planned by our lovingly Gujrat CM Mr. Naredra Modi. And how shamed it is that Gujrat people and many BJP leaders want him as a prime minister of our country!! Why we people are not talking about Babu Bajrangi and Maya Kodanani .. they are also terrorists… hang till death to all three.

 

Killing Kasab will not stop the crime but if he alive and we give him torture, the people behind him may think once to attack again and if we kill him he will be happy and his team will attack again and again. I am not against the Kasab personally but the act which he had committed should be reciprocated, in a way, that any other person don’t ever try it due the consequences occurs after that. I hate offence not the offenders…!! So inspite of being an Indian I will not kill ‘Kasab’, rather I want to kill the offensive mood of the people like ‘Kasab’….!! Kasab’s hanging should act as a warning to other terrorists. But what about the main culprits who motivated him to commit the brutal murders?

Ram Chandr keh gaye siya se, Congress raj ayega, Anna bukh se marega, Kasab briyanniii khayega…

Here are main things which I want to mention:-

 At one place our Constitution says that “everybody is equal in the eyes of law” but there is not any difference between criminals who are doing wrong with Indian Public.

 There are differences between Dhananjoy Chatterjee and Afzal Guru and Kasab, because all the people who come in India did terrorism but they are not belongs to India and don’t have the Indian nationality.

 We all think that vote bank politics protecting terrorists.

 I think the government is waiting for new major incident like “Kandhar Hijack”.

Government is run by the politics and politician not by any other person as we all know the truth of our politicians therefore we can say yes they are waiting for another crime or attacks. Ruther to punish terrorist or the other to create.

 

Freedom of speech is the most abused and misused right in India. These so called Human Rights activists are just lime-light seekers and nothing more.

Women get raped and murdered, people in some slums use water from the same tank for consumption and other purposes, untouchability is still prevalant in many parts of India, dowry system, female feticide and there are many such gross violations of a human being’s right to live a free, healthy and fair life. Our HR activists are not bothered about such things because fighting for these causes does not give them the lime-light. Instead they wait for an execution of a terrorist or a rapist to raise the voice. For a man who shot at unarmed innocent people killing and injuring them death penalty is completely justified and absolutely correct. My request to these activists, please go out into the society and try to fight for solving real problems instead of making useless statements.

 

DISCLAIMER:

Unless otherwise indicated, all posts by a regular or guest contributor to this blog reflect that contributor’s own personal opinions and views and not any institution to which the contributor may be affiliated. Posts should not be attributed to the blog as a collective or to any other regular or guest contributors.

Furthermore, by expressing their views and opinions to this blog, contributor’s exercise their freedom of speech and expression protected by international human rights instruments and the Constitution of India.

 

 

 

Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.

Indian President Pratibha Patil’s new Avatar: in Mercy Plea Controversy

The controversies related to Pratibha Patil does’t seem to end. Sometimes she comes in news for her foreign trips or for her expenses, this time she is in common circle for her disposal of clemency petitions.

Capital punishment is the oldest way to do justice. In earlier times it was awarded most often in every murder case but with the coming of modernization, its application has gone under a paradigm shift. Now-a-days it is applied in rarest of rare cases.

But Pratibha Patil has commuted a number of death sentences in cases where it was well deserved. Pratibha Patil has made a new record in this regard. She has commuted the death sentence of as many as 35 convicts to life — among them are those convicted of mass murder, kidnapping, rape and killing of children. In fact, almost all the convicts pardoned are guilty of the rarest of rare crime.

On June 2, Pratibha Patil gave her pardon to four more — Bandu Baburao Tidke from Karnataka, Buntu from Uttar Pradesh and Lalchand alias Laliya Dhoom and Shiv Lal from Rajasthan.

Such a large scale of presidential pardons has surprised everybody.

Death penalty is awarded in rarest of rare cases so as to do justice to the injured party. This is a way to do justice in exceptional cases. And awarding mercy in such cases certainly, violates the spirit of justice, without assigning any reason.

On this point Archana Dutta, Rashtrapati Bhavan spokesperson, said the President was well aware of constitutional provisions as she was a lawyer herself. “The President only takes a decision to commute a death sentence or reject it after she is satisfied by the advice tendered by the government. The President ensures that the government has put in certain application of mind to give mitigating and extenuating circumstances for their advice,” she said.

Notwithstanding Dutta’s assertion, the speed with which Patil has granted pardons would indicate haste. While Patil has shown mercy to mass killers and rapists and killers of children, she has not given the same treatment to political assassins like the killers of former Punjab chief minister Beant Singh or Rajiv Gandhi.

With the June 2 decision to grant four more pardons, the President boasts of a disposal rate of 200%. In recent times President K R Narayanan received 10 petitions and disposed of only one in his tenure. A P J Abdul Kalam inherited nine petitions with another 16 added in his term, taking the total to 25. He disposed of only two — rejecting one and pardoning the other.

Constitutional provision regarding Presidential pardon

Article 72 empowers President to pardon, grant reprieve or suspend, remit, commute sentence of person convicted of any offence

President guided by home minister, council of ministers

Exercise of the executive prerogative subject to judicial review

Pratibha Patil has granted clemency to 35 convicts — a record 22 of those killed by these 35 were women and children.

Since 1981, more than 90 have pleaded for clemency

Clemency records of previous Presidents
a. APJ Abdul Kalam:Had 25 mercy petitions. Rejected plea of Dhananjoy Chatterjee, India’s last recorded execution. Commuted one to life. Returned others.

b. K R Narayana: Sat on all pleas. Used delay as tactic. Received about 10 mercy pleas

c. S D Sharma: Rejected all 14 mercy petitions presented to him

Some of the convicts offerd clemency by Pratibha Patil

1.SATISH: killed & brutalized Visakha, 6, a UP resident, in 2001.

2.MOLAI RAM & SANTOSH YADAV: On February 20, 1996, Molai Ram was on duty as a guard at the jailor’s quarter in Central Jail, Rewa, Madhya Pradesh. Santosh Yadav, already serving a rape sentence, was assigned to tend the garden. The jailor’s minor daughter went missing, to surface the next day in a septic tank at a nearby cattleshed. Ram and Yadav had raped and strangulated her.

3.DHARMENDRA SINGH and NARENDRA YADAV: In June 2010, the nation reacted with visceral revulsion when Dharmender Singh and Narendra Yadav of Uttar Pradesh were pardoned. In 1994, they had wiped out a family of five, including a 15-year-old girl. Narendra had tried to rape her a few days before, failing which he conspired with Dharmender to teach the family a lesson: Three people were beheaded while a 10-year-old boy was tossed alive into the fire.

4.PIARA SINGH and HIS THREE SONS: From Punjab, massacred 17 of a wedding party

5.SHOBHIT CHAMAR Of Bihar. A landless cobbler from Tirojpur Durgawati village in Bihar’s Bhabua district, he was condemned to death for killing six members of his upper-caste landlord’s family, including two children aged 10 and eight, on suspicion that the family was behind the murder of his brother. “He exhibited the most inhuman conduct while rejoicing his victory after the commission of the crime,” the apex court noted in 1998

6.SHYAM MANOHAR, SHEO RAM, PRAKASH, RAVINDER SURESH and HARISH: Killed five, including a 10-yr-old boy, over a property dispute

7.OM PRAKASH: From Uttarakhand, murdered retired brigadier and two family members

8.SUSHIL MURMU: On December 11, 1996, nine-year-old Chirku Besra went missing in Hazaribag, Jharkhand. While his father looked for him, Murmu lured the boy into his home and beheaded him in a ritual “sacrifice” to Goddess Kali

9. MOHAN and GOPI: From TN, kidnapped 10-yr-old boy, strangled him, got Rs 5 lakh as ransom

10.JAIKUMAR: Murdered pregnant sister-in-law and niece.

With clemency petitions, has Pratibha Patil done injustice instead of justice? In India where delay in justice is a disease in our legal system, this initiative adds up to the disease.

People who are craving for justice get injustice even at the hands of President?

Don’t such unreasonable clemencies encourage injustice, increase the pain of injured and their families?

 

Thank God she didn’t offer clemency to Afzal Guru!

 

The debate on her actions is on.

 

 

-Reena Yadav

Delay in Death sentence: Dual punishment

Shikha Patel

Justice Iyer observes that “ In any scientific system which turns the focus, at the sentencing stage, not only on the crime, but also the criminal and seeks to personalize the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of social and personal nature, sometimes altogether irrelevant , if not, injurious at the stage of the fixing the guilt, may have to be brought to the notice of the court when actual sentence is determined.”Nevertheless, the punishment remains as the most counterpart of crime. Punishment is an expression of the society’s disapproval of the acts and its magnitude decide punishment. Although the word “punishment” is used in varying contexts, it is generally accepted that it is served out unpleasantly to an individual in hopes that the person learns from the punishment and, therefore, doesn’t repeat the bad deed. The supreme court of India has not relied or based its sentencing or rather interference in sentencing on any specific theory of the punishment.

Capital punishment is one of the type of punishment given if the case falls in the domain rarest of rare cases. Capital punishment is given for horrendous crime. It is necessary to change an offender into a non offender. The goal is reformation not retribution. Appreciable thought of Mahatma Gandhi tells that if the principle of ‘an eye for an eye’ prevails then there will two blind persons at last. But, this principle is repudiated by the classical jurisprudence and sanction impose by the law. The view of Justice Iyer in E. Anamma v State of Andhra Pardesh was a earmark for beginning of the reformative theory of punishment.

In Jagmohan v State of U.P. capital punishment is not held to be unreasonable. Code of Criminal procedure, 1978 has made life imprisonment for murder a rule and death sentence an exception. But in Bachan singh v State of Punjab Constitutional bench upheld the validity of the death sentence but the aggravating as well as mitigating circumstance & motivating factor need to be considered determining the sentence under sec. 302 the Supreme Court evolved the dictum of rarest of rare cases for imposing death sentence and further justification was outlined in five categories.

 

“I have always found that mercy bears richer fruits than strict justice.”

-Abraham Lincoln, 16th U.S President .

Without such a power of clemency, to be exercised by some functionary of the government, a country would be most imperfect and deficient in its political morality. With this view, our Indian constitution had given space for clemency which can be granted by the executive. Under section 415, 416, 417 of CrPC states grounds ground for postponement of execution sentence of death in case of appeal. But there is no underlined rule nor any guiding principle to govern the mercy petition. Consequently it leads to delay.

It envisaged that the convict is awarded death sentence for his crime, when it falls in the ambit of Rarest of rare cases. Instead of executing the death sentence the accuse has been put behind the bar years together for deciding the Mercy petition and delaying the execution of the sentence. Therefore, undergoing many years in imprisonment after confirmation of death sentence it would amount to dual punishment because firstly the convict had undergone many years of his life in prison and thereafter he would be face the mirror of his death by judicial hanging, which is contrary to provision of constitution and criminal jurisprudence.

The common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence. The accuse is protected under Art. 20 (b) for double jeopardy whereas there is no law restraining dual punishment which the convict countenanced for postponement in execution of death penalty.

Speedy trial hold the key to the success of any sentencing policy. The Apex Court had declared in A. R Antulay v R. S. Nayak that the right to speedy trial is a part of fundamental right to life and personal liberty guaranteed by Art. 21 of the constitution. It is settled law that inordinate delay in the trial and further proceeding by the way of appeals or revision itself is a mitigating factor justifying a lesser sentence. Postponement in carrying out death sentence is result of undue time taken by the executives i.e. the President empower under Art. 71 & Governor under Art. 161 of the constitution for granting mercy petition. Apparently, it end up only affecting the convict neither the death sentence is executed nor is relived from threat of capital punishment thus he stands at middle of cross road with hope to live though wrongfully bearing confinement and is at ambiguous situation.

In deciding the mercy petition there exist many impediments which conclude in taking so much time which is concurrent to the minimum punishment prescribed for the offense. And many a time due to political intervention delay is subsequent into not only days but years together. A time limit needs to be provided for the processing and final disposal of a mercy petition which would bring relief to the death chamber convicts.

As per convention of Universal declaration of human right. Art. 3 & 5 affirms that no one should be inflicted with the cruel, inhuman or degrading treatment or punishment. Everyone has the right to liberty & security of person. Referring to violation of human right by the state law enforcing agencies the court is of the view that these acts were breach of humanitarian law and as well as total negation of constitutional guarantee & human decency.

Agony of waiting to be executed traumatizes and kills the convict many more times than the actual execution. Also, the Executive needs an advisor who has some degree of independence from those who prosecuted the underlying criminal case; who can bring a different policy perspective and different values to bear on the matter, and whose independent political accountability can provide the president a measure of protection from public criticism.

Death Sentence is deterrent type of punishment. The main object of awarding capital punishment is to create fear in the mind of other offenders and restraining reoccurrence of such a grave offense. As a result of delay in execution for several year, the effectiveness of creating threat among society is not fulfilled which may be achieved by immediate execution. Pertinently delay results in ineffective and the change of circumstance may not warrant for such a grave punishment after years. Thus, Capital punishment may not be required.

One of the pivotal object of capital punishment is deterrent in nature if it executed within short time after commission of offense. While undergoing the imprisonment its needless to presume that the convict had not gone under any reform in his life therefore there can be change in his criminal mensrea or might have wiped out misdeed and he is not the same person as he was at the time of commission of offense. While deciding Mercy petition his current state of mind is requisite to be considered. For example, Great sage Valmiki who was once upon a time was a great dacoit but with passage of time it was evidential that he became great sage. No strait jacket formula should be applied for execution rather evaluation of convict current status must be looked upon.

Appeals of such type of cases ought to have been decided in the limit bound schedule so as sentence does not lose its effectiveness and potentiality & to meet with the object of punishment. There is lacuna in time bound program for deciding such mercy petition& standard operating procedure (SOP).

The vast majority of countries in Western Europe, North America and South America–more than 95 nations worldwide, have abandoned capital punishment. Countries has adopted policy of with regards to United Nation declaration of Human rights which give due respect to human dignity and there are many more initiative taken by UN thus to preserve the human value. Therefore, India can abandon the Capital punishment inspite of losing the virtue of capital punishment by delaying it.