Post on 27-Feb-2023
GUJARAT NATIONAL LAW UNIVERSITY
Project
For
Comparative Public Law
On
Capital Punishment: A comparative study between India
and China
Submitted to:
Faculty: Girish R.
Assistant Professor of Law
Gujarat National Law University
Submitted by:
Nikita Gupta1
LLM 2014-15
Registration no: 14LLM40
TABLE OF CONTENTS
S. No. List of Contents Page No.
1. Acknowledgment 3
2.
3.
List Of Abbreviations
List Of Cases
4
5
3. Synopsis 6
4. Chapter 1: Introduction 7
5. Chapter 2: Death Penalty In People’s
Republic of China
9
7 Chapter 3: Capital Punishment in India 17
1 Student of 2014 LLM Semester I, Gujarat National Law University,Gandhinagar. EMAIL: nikkyichigo@gmail.com
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8. Chapter 4: UN & Death Penalty 23
9.
10.
Chapter 5: Conclusion
Bibliography
25
27
Acknowledgement
I would like to express my deep felt gratitude to the faculty
Prof. Girish for guiding me in different areas of my topic and
helping me throughout this project.
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List Of Cases
Bachan Singh v State of Punjab (1982)3 SCC 24
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1. AF Act Air Force Act2. AI Amnesty International
3. AIR All India Report
3. CPL Criminal Procedural Law
4. CPPCC Chinese People’s Political
Consultative Conference5. IPC Indian Penal Code6 NDPS Narcotics Drugs And Psychotropic
Substances Act7. NPC National People’s Congress of the
People’s Republic Of China8. Pg. Page
9. PRC People’s Republic Of China
10. § Section
11. SC Supreme Court
12. SCC Section Court Cases13. UDHR Universal Declaration of Human
Rights14. UN United Nations
15. v. Versus
B.A. Umesh v. Registrar General, High Court of Karnataka,
(2011) 3 SCC 85
Machhi Singh And Others v. State Of Punjab 1983 AIR 957
Prajeet Kumar Singh v. State of Bihar Appeal (crl.) 1621 of
(2007)
Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (2011) 2
SCC 764
Sandeep v. State of U.P., (2012) 6 SCC 107
Shivu & Anr. v. Registrar General, High Court of
Karnataka, (2007) 4 SCC 713
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Synopsis
RESEARCH OBJECTIVE:
The objective of the research is to focus on the aspect of where
the position of death penalty stands globally.
RESEARCH LIMITATIONS:
The research will be limited research to capital punishment in
India and China. As according to AI china’s death sentence and
execution contribute globally around 60% to 80% the researcher
would like to focus the research on whether there is a decline
in executions as has been with other countries.
HYPOTHESIS:
Are countries globally shifting from Deterrent punishment to
reformative punishment?
RESEARCH METHODOLOGY:
This is a doctrinal research and the researcher relies upon the
secondary sources such as books and the resources available from
the Internet.
TENTATIVE CHAPTERIZATION:
Chapter 1: Introduction
Chapter 2: Death Penalty In People’s
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Republic of China
Chapter 3: Capital Punishment in India
Chapter 4: UN & Death Penalty
Chapter 5: Conclusion
Introduction
“[T]hese special reasons must relate, not to the crime as
such but to the criminal. The crime maybe shocking and yet
the criminal may not deserve the death penalty,”2.
Throughout the world ‘Abolition of Death Penalty’ is being
popular these days which questions countries which are still
practicing death penalty including U.S.A., China, India, Arab
Countries etc. whether they consider Death Penalty as a Human
Right violation or do they believe in deterrent theory of
punishment than Reformative theory.
Role of punishment has everything to do with the crime and its
Justice. If the punishment is not solving the purpose of
achieving justice then that punishment is in itself wrong. When
2 Justice V.R. Krishna Iyer commented in Rajendra Prasad v. State of U.P
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we look at the theories of punishment there are three types of
punishment Deterrent, Punitive and Reformative since the world is
opting for abolishment of death penalty it is seen that they no
longer have the Punitive approach towards the punishment but the
consideration is on reformative approach.
Among the countries, which practice, Death Penalty China carries
out maximum number of executions and contribute to the world
executions in 60%-80% in number.
So many human lives are being sacrificed in the name of justice;
does it give ends, which the lawmakers wanted to achieve? How
does a death reform a person to see and do things in a different
way to change the way one lives?
If we talk about the approach of punishment towards the crime it
can be said that reformative has its fair share of advantages,
when we look in India there are certain activities that prisoner
are made involved in by which they even earn money for eg. The
prisoner of tihar jail makes essence sticks and dhoop and many
other articles which are sold all over the country.
Deterrent on the other hand leaves no scope for improvement and
has no essence for humanity
In this paper researcher has focused on India and China, where
China is responsible for more than half of the executions, and
India quantifies the severity by its rarest of rare doctrine and
the researcher tries to establish whether the execution of Human
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life necessary for the protection of state, execution the extreme
punishment which one might think of its irrevocable so should it
be practiced that frequently
The debate of Capital Punishment is endless but what can not be
denied is that whatever the reason maybe punishment of death is
extreme and severe so does the situation demands to take the
extreme road or are we becoming sensitive to the issues in a way
that this method is the last resort for us.
So can this be justified some might say it can in a case where a
man has heinously raped a girl that she doesn’t survive to live
in this world on this when that human is not going against the
law of nature and doing this act one might wonder whether he
deserves to be in this world.
The researcher believes that according to some there might be
many people who deserves death but we can not be a judge of that
coz in those convicts there may come a day when an innocent man
will not live to see another day because the law failed him
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China has had a long history of the death penalty with the
earliest available record dating back to the Shang Dynasty (1700-
1027 BC). It is a long historical tradition throughout the
dynastic rules, the Republic era, and the PRC era that justifies
capital punishment on the grounds of retribution, deterrence, and
incapacitation. Chinese traditional sayings like “a life for a
life,” “killing one to warn a hundred,” “killing a chicken to
warn a monkey” are embodiments of these retributive and deterrent
beliefs4
3 AI Act 50/001/20144 YONGPING LIU, ORIGINS OF CHINESE LAW – PENAL AND ADMINISTRATIVE LAW IN ITS EARLY DEVELOPMENT (New York: Oxford University Press, 1998).
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2.1 Crime and offences punishable by death in China:
Offences punishable by death under “PRC Criminal Procedural Law, 2013”
1. Aggravated Murder: Under Article 232 death penalty is
generally applicable to murder but the degree of sentencing
coupled with the directive for a lighter sentence where
circumstances indicate a low level of culpability suggests
that whether a murder is committed under aggravating
circumstances is considered in sentencing
2. Murder: Under Article 232 a person who intentionally commits
homicide is punishable by death.
3. Other Offenses Resulting In Death:
a. A person who commits arson, breaches a dike, causes
explosion, spreads poisonous, radioactive substances or
infectious pathogens and causes the death of another
person is punishable by death.5
b. Violently or forcefully hijacking an aircraft, causing
the death of another person, is a death-eligible
crime.6
c. Producing or selling tainted food or fake medicine is
punishable by death when the criminal act results in
death.7
5 PRC Criminal Procedural Law 2013, art115.6 Id art 1217 Id art 141
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d. A person who causes the death of another person by
intentionally inflicting injury is subject to the death
penalty.8
e. Causing death from raping a woman or having a sexual
intercourse with a girl under the age of 14 is a crime
punishable by death.9
f. A person who causes the death of another person who is
forced to engage in prostitution is subject to the
death penalty.10
g. Abducting someone for extortion or holding someone
hostage, thereby killing or causing the death of the
victim, is punishable by death.11
h. A person who causes the death of an abducted woman or
a child or his or her relatives is punishable by death,
if the circumstances are “especially serious.”12
i. Causing the death of another person in the course of
robbery is punishable by death.13
j. Causing the death of commanders or military personnel
with violence or intimidation, particularly during
wartime, is a death-eligible crime.14
4. Terrorism-Related offences Resulting In Death
8 Id art 2349 Id art 23610 Id art 35811 Id art 23912 Id art 24013 Id art 26314 Id art 426
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a. China’s anti-terrorism laws treat those participating
in lethal terrorist activities under the laws for
murder, kidnapping, and other crimes affecting public
safety.15
b. A person can be sentenced to death for sabotaging
means of transportation, utilities, or certain
construction equipment, if the consequences are
serious.16
c. Setting fire, breaching dikes, causing explosion,
spreading poison, or employing other dangerous means
that lead to death are punishable by death.17
d. Airplane hijacking resulting in death is also
punishable by death.18
e. Illegal trade, manufacture or transport of nuclear
materials or other weapons can be death-eligible if
the circumstances are “serious.”19
f. Additionally, serious cases of stealing or forcibly
seizing weapons, explosives, poisonous or radioactive
substances, infectious disease pathogens or other
substances that endanger public security are death-
eligible offenses that could be characterized as
terrorism-related.20
15 Id art 12016 Id art 11917 Id art 11518 Id art 12119 Id art 12520 Id art 127
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5. Terrorism-Related Offenses Not Resulting in Death:
Other non-deadly terrorist activities that lead to serious
injury or property loss affecting public safety are death-
eligible offenses that could be characterized as
terrorism-related including-
a. Sabotage of transportation, utilities, or certain
construction equipment,21
b. Setting fire, breaching dikes, causing explosions,
spreading poison, or employing other dangerous means
that lead to serious injuries or property loss.22
c. Airplane hijacking (resulting in serious injury or
damage to the aircraft).23
d. Illegal trade, manufacture or transport of nuclear
materials or other weapons, ammunition or explosives
(with serious consequences).24
6. Rape Not Resulting in Death.
a. Multiple Rapes, public rape, causing serious injury
from rape are all death-eligible offenses.25
b. Raping an abducted or trafficked woman is punishable
by death, if the circumstances are “especially
serious.”26
c. Forcing someone into prostitution after rape is also 21 Id art 11922 Id art 11523 Id art 12124 Id art 125, 127, 15125 Id art 23626 Id art 240
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punishable by death, if the circumstances are
“especially serious”27
7. Rape of Child Not Resulting in Death
a. Sexual relations with a girl under the age of 14 are a
death-eligible offense if it involves multiple rapes,
public rape, or serious injury or other “serious”
circumstances.28
b. Rape of a child is punishable by death when it is rape
during abduction or trafficking.29
c. Forcing a child into prostitution after rape is also
punishable by death, if the circumstances are
“especially serious.”30
8. Robbery Not Resulting in Death.
a. Robbery is punishable by death if it involves
intrusion into public transportation, or a bank or a
banking institution.31
b. Repeatedly committing robbery, stealing a large sum
of money, causing serious injury during robbery,
impersonating a serviceman or policeman during
robbery, or armed robbery is also punishable by
death.32
27 Id art 35828 Id art 23629 Id art 24030 Id art 35831 Id art 26332 Id art 263, 267
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c. Stealing or forcibly seizing weapons, equipment or
military supplies is death-eligible if the
circumstances are “especially serious.”33
d. Additionally, a “serious” case of stealing or
forcibly seizing weapons, explosives, poisonous or
radioactive substances, infectious disease pathogens
or other substances that endanger public security.34
9. Arson Not Resulting in Death:
A person, who commits arson, thereby inflicting serious
injury or causing heavy property loss, is subject to the
death penalty.
10. Kidnapping Not Resulting in Death.
a. A leader of a gang involved in abducting and
trafficking women and children is subject to the
death penalty, if the circumstance, aggravated
abduction of three or more women or children is a
death-eligible offense, as is trafficking three or
more women or children and stealing a baby or an
infant for the purpose of selling the victim, if the
circumstances are additionally, abduction involving
violence, coercion or anesthesia, or abduction
resulting in serious harm is a death-eligible offense
33 Id art 43834 Id art 127
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if the circumstances are “especially serious.”35
11. Burglary Not Resulting in Death.
Intruding into a residence for the purpose of robbery
is punishable by death.36
12. Drug Trafficking Not Resulting in Death.
a. Use of arms or violence to cover up drug trafficking
crimes or to resist arrest or detention is punishable
by death a death sentence may also be imposed when
opium of not less than 1000 grams, heroin or methyl
aniline of not less than 50 grams, or other narcotic
drugs of large quantities are involved. Participants in
international drug smuggling, leaders of trafficking
groups, or government officials who divert state-
controlled drugs for illegal sale may also be punished
by death. 37
13. Economic Crimes Not Resulting in Death.
a. Graft and bribery are punishable by death if
particularly large sums of money or property value are
involved.38
b. A person who embezzles more than 100,000 Yuan is
subject to the death penalty, “if the circumstances are35 Id art 34036 Id art 26337 Id art 34738 Id art 386
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especially serious.”39
c. Illegal trade, manufacture or transport of nuclear
materials or other weapons can be death-eligible.40
In 2011, 13 other non-violent, economic crimes such as
smuggling cultural relics and precious metals, robbing
ancient cultural ruins, and engaging in fraudulent
activities with financial bills or letters of credit were
removed from the list of death-eligible crimes.
14. Treason.
a. Crimes harmful to national security are death-eligible,
if causing particularly serious harm and under
aggravating circumstances. These crimes include
“especially serious” cases of plotting with foreign
states, organizations, or individuals; organizing or
plotting to undermine national unification; involvement
in rebellion, rioting; colluding with foreign sources
for subversive purposes; defection; supplying arms to
enemy during wartime;41 sabotage of military
resources;42and supply of faulty equipment to armed
units.43
39 Id art 383 40 Id art 125, 15141 Id art 102, 103(1), 104, 106, 108, 112, 11342 Id art 36943 Id art 370
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15. Espionage.
a. A person who joins an espionage organization, accepts a
mission from an espionage organization, or directs an
enemy to a bombing or shelling target is punishable by
death, “if the circumstances are especially serious” or
the crime causes serious harm to the State and the
people.44 Stealing, spying into, buying, or illegally
supplying State secrets for an organization or
individual outside China is death-eligible, “if the
circumstances are especially serious” or the crime
causes serious harm to the State and the people.45 A
person who steals, spies into buy, or illegally
supplies military secrets to agencies, organizations or
individuals outside of China are subject to the death
penalty.46
16. Military Offenses Not Resulting in Death.
a. A serviceman who cooperates with the enemy after
surrender is punishable by death. 47Obstructing
commanders or military personnel with violence or
intimidation, particularly during wartime;48 desertion
or defection while piloting vessels or aircraft;49
44 Id art 110,11345 Id art 111,11346 Id art 431(2)47 Id art 42348 Id art 42649 Id art 430
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fabrication of rumors in collusion with the
enemy;50forcible seizure of weaponry or military
supplies;51 and illegal sale or transfer of military
weaponry,52are punishable by death. Sabotaging
weaponry, military installations or military
telecommunications is a death-eligible offense under.
Supplying faulty military equipment to the armed
forces is punishable by death.
17. Other Offenses Not Resulting in Death.
a. Aggravated assault: A person who intentionally inflicts
injury upon another person through especially cruel
means, thereby causing severe injury or disability, is
punishable by death.53 Since 2011, the crime of
intentionally wounding a person to force him/her to
donate an organ is death-eligible under certain
circumstances. 54
b. - Trafficking and forced prostitution crimes: Arranging
for another person to engage in prostitution, forcing a
girl under the age of 14 to engage in prostitution,
forcing multiple people to engage in prostitution or
repeatedly forcing a person to engage in prostitution,
or inflicting injury upon a person forced to engage in
50 Id art 43351 Id art 43852 Id art 43953 Id art 23454 Amnesty Intl., Executions and death sentences in 2011, p. 19, ACT 50/001/2012, Mar. 26, 2012
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prostitution is punishable by death.55Also, a person
who entices or forces an abducted or trafficked woman
into prostitution, or sells such woman to a person that
would force her into prostitution, is punishable by
death. A person who inflicts injury upon an abducted
woman or a child or his or her relatives is punishable
by death. Selling a woman or a child to a territory
outside of China is also a death-eligible crime.56
c. Producing or selling tainted food or medicine:
Producing or selling tainted food or fake medicine is
punishable by death when the criminal act results in
serious medical injury or involves other serious
circumstances.57
China gives death penalty in 55 offences but recently it was said
that china might remove 9 offences from the punishment of death
penalty including illegal fund raising. The official Xinhua News
Agency said the proposal was submitted on Monday to the standing
committee of the NPC, which is meeting this week in its bi-
monthly session Xinhua, says the crimes considered for removal
include smuggling weapons, counterfeiting currency and forcing
others to engage in prostitution.58
The severity of offence has also taken in consideration while
55 Id art 35856 Id art 24057 Id art 141,14458 China mulls ending death penalty for nine crimes, THE HINDU (Oct. 27, 2014, 10:07 am), http://www.thehindu.com/news/international/china-mulls-ending-death-penalty-for-nine-crimes/article6538206.ece
GUJARAT NATIONAL LAW UNIVERSITY Page 23
handing out death sentence china practice two types of execution
methods, which are execution by shooting and by lethal injunction
(Lethal injection was introduced in 1997).
Under Art 49 of PRC Criminal procedural law, 2013, there are
certain exceptions in Chinese criminal code regarding death
penalty i.e. the people excluded from death penalty they are,
Minors, Pregnant Woman, Elderly and Mentally Ill.
Chapter 3: Death Penalty In India
"[W]e are all the creations of God. I am not sure a human
system or a human being is competent to take away a life
based on artificial and created evidence.”
-APJ Abdul Kalam59
India in deciding the case for death penalty follows the doctrine
of “Rarest of the rare test” which was coined in the case of
Bachan Singh v State of Punjab60
In Machhi Singh And Others v. State Of Punjab61 a three judge
bench followed decision of59 11th President of India from 2002 to 200760 (1982)3 SCC 2461 1983 AIR 957
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Bachan Singh observed that in rarest of the rare cases when
collective conscience of the community is so shocked that it will
expect the holders of the judicial power to inflict death penalty
irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty, the Court said that the
community may entertain such a sentiment in the following
circumstances: I. 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. II. When the murder is committed for a motive,
which evinces total depravity and meanness. III. (a) When
murder of a member of a Scheduled Caste or minority community,
etc., is committed not for personal reasons but in circumstances,
etc., which arouse social wrath. (b) In cases of "bride burning"
and what are known as "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. IV. 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. V. When the victim of murder is (a)
an innocent child who could not have or has not provided even an
excuse, much less a provocation, for murder, (b) a helpless woman
or a person rendered helpless by old age or infirmity, (c) when
the victim is a person vis-‘-vis whom the murderer is in a
position of domination or trust, (d) when the victim is a public
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figure generally loved and respected by the community for the
services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.
In the case Prajeet Kumar Singh v. State of Bihar62 It was observed that
the accused-appellant caused multiple murders and attacked three
witnesses. Thus, all the members of the family who were present
on that day in the house became the victims of the accused. The
brutality of the act is amplified by the manner in which the
attacks have been made on all the inmates of the house in which
the helpless victims have been murdered, which is indicative of
the fact that the act was diabolic of the superlative degree in
conception and cruel in execution and does not fall within any
comprehension of the basic humanness which indicates the mindset
which cannot be said to be amenable for any reformation. In view
of the aforesaid facts, the court observed that there would be
failure of justice in case death sentence is not awarded in the
present case. The case falls in the category of the rarest of
the rare cases and the apex court dismissed the appeal.
Surendra Pal Shivbalakpal v. State of Gujarat,63 was a case in which the
death penalty awarded to the accused who had raped a minor child,
was converted to life imprisonment considering the fact that he
was 36 years old and there was no evidence of the accused being
62 Appeal (crl.) 1621 of 200763 (2005) 3 SCC 127
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involved in any other case and there was no material to show that
he would be a menace to society.
Rameshbhai Chandubhai Rathod (2) v. State of Gujarat64 was an unusual case in
as much as the two learned Judges hearing the case had differed
on the sentence to be awarded. Accordingly the matter was
referred to a larger Bench which noted that the accused was about
28 years of age and had raped and killed a child studying in a
school in Class IV. The accused was awarded a sentence of
imprisonment for life subject to remissions and commutation at
the instance of the Government for good and sufficient reasons.
It was held as follows:
Both the Hon'ble Judges have relied extensively on Dhananjoy
Chatterjee case65. In this case the death sentence had been awarded
by the trial court on similar facts and confirmed by the Calcutta
High Court and the appeal too dismissed by this Court leading to
the execution of the accused. Ganguly, J. has, however, drawn a
distinction on the facts of that case and the present one and
held that as the appellant was a young man, only 27 years of age,
it was obligatory on the trial court to have given a finding as
to a possible rehabilitation and reformation and the possibility
that he could still become a useful member of society in case he
was given a chance to do so.
Shivu & Anr. v. Registrar General, High Court of Karnataka,66 it was a case in64 (2011) 2 SCC 76465 [(1994) 2 SCC 22066 2007) 4 SCC 713
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which the special reasons for confirming the death penalty given
to both the accused who were aged about 20 and 22 years old
respectively were the heinous rape and murder of an 18 year old.
It was noted that the accused had twice earlier attempted to
commit rape but were not successful. Though no case was lodged
against them, they were admonished by the village elders and the
Panchayat and asked to mend their ways. It was held, Considering
the view expressed by this Court in Bachan Singh case and Machhi
Singh case we have no hesitation in holding that the case at hand
falls in rarest of rare category and death sentence awarded by
the trial court and confirmed by the High Court was appropriate.
B.A. Umesh v. Registrar General, High Court of Karnataka,67 was a case of the
rape and murder of a lady, a mother of a 7 year old child. In the
High Court, there was a difference of opinion on the sentence to
be awarded – one of the learned judges confirmed the death
penalty while the other learned judge was of the view that
imprisonment for life should be awarded. The matter was referred
to a third learned judge who agreed with the award of a death
penalty. This Court confirmed the death penalty since the crime
was unprovoked and committed in a depraved and merciless manner;
the accused was alleged to have been earlier and subsequently
involved in criminal activity; he was a menace to society and
incapable of rehabilitation; the accused did not feel any remorse
for what he had done. It was held:
On the question of sentence we are satisfied that the extreme67 (2011) 3 SCC 85GUJARAT NATIONAL LAW UNIVERSITY Page 28
depravity with which the offences were committed and the
merciless manner in which death was inflicted on the victim,
brings it within the category of the rarest of rare cases which
merits the death penalty, as awarded by the trial court and
confirmed by the High Court. None of the mitigating factors as
were indicated by this Court in Bachan Singh case or in Machhi
Singh case are present in the facts of the instant case. The
appellant even made up a story as to his presence in the house on
seeing PW 2 Suresh, who had come there in the meantime. Apart
from the above, it is clear from the recoveries made from his
house that this was not the first time that he had committed
crimes in other premises also, before he was finally caught by
the public two days after the present incident, while trying to
escape from the house of one Seeba where he made a similar
attempt to rob and assault her and in the process causing
injuries to her.
In Sandeep v. State of U.P.,68 the death sentence awarded to the
convict for the murder of his pregnant friend and pouring acid on
her head was converted to sentence of life for a minimum period
of 30 years without any remission before his case could be
considered for premature release.
Offences punishable by death:
68 (2012) 6 SCC 107GUJARAT NATIONAL LAW UNIVERSITY Page 29
1. Murder
Under section 302 of Indian Penal Code (IPC) Murder is
punishable by death, but in purview of the rarest of rare
case doctrine.
2. Other Offenses Resulting in Death
a. According to the §396 of Indian Penal Code, if any
member of a group commits murder in the course of
committing an armed robbery, all members of the group
can be sentenced to death.
b. Under § 364 A IPC, Kidnapping for ransom in which the
victim is killed is punishable by the death penalty.
c. According to The Unlawful Activities (Prevention)
Amendment Ordinance, § 6, 2004 being a member of an
association or promoting an association while
committing any act using unlicensed firearms or
explosives that results in death, is punishable by
death.
d. The Commission of Sati (Prevention) Act, part. II, §4
(1), no. 3 of 1988, 1987, Committing, or assisting
another person in committing sati – the burning or
burying alive of widows or women – is also punishable
by the death penalty.
e. Under the Prevention of Atrocities Act §3 (2) (i),
bearing false witness in a capital case against a
member of a scheduled caste or tribe, resulting in
GUJARAT NATIONAL LAW UNIVERSITY Page 30
that person's conviction and execution, carries the
death penalty.
f. Under § 305 of Indian Penal code assisting
individuals who are under the age of 18, mentally
ill, mentally disabled, or intoxicated in committing
suicide is punishable by the death penalty.
3. Terrorism-Related Offenses Not Resulting in Death
Under Explosive Substances (Amendment) Act, 2011 §3 (b)
using any special category explosive to cause an explosion
likely to endanger life or cause serious damage to
property is punishable by the death penalty.
4. Rape Not Resulting in Death
Under the Criminal Law (Amendment) Act, 2013 §9 a person
who in the course of a sexual assault inflicts injury that
causes the victim to die or to be left in a “persistent
vegetative state” is punishable by death. Repeat offenders
of gang rape are also punishable by death.
5. Kidnapping Not Resulting in Death
Under §364 A, IPC Kidnapping or detaining an individual is
punishable by death if the kidnapper threatens to kill or
harm the victim, if the kidnapper’s conduct makes the
death or harm of the victim a possibility, or if the
victim is actually harmed.
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6. Drug Trafficking Not Resulting in Death
Under §31A, of NDPS Act, If an individual who has been
convicted of the commission of, attempt to commit,
abetment of, or criminal conspiracy to commit any one of a
range of offenses related to drug trafficking (e.g.
trafficking of cannabis and opium) commits another offense
related to the production, manufacture, trafficking, or
financing of certain types and quantities of narcotic and
psychotropic substances, he or she can be sentenced to
death.
7. Treason
Waging or attempting to wage war against the government
and assisting officers, soldiers, or members of the Navy,
Army, or Air Forces in committing mutiny are punishable by
the death penalty.
8. Military Offenses Not Resulting in Death
Under Air Force Act Of India §37, 38 & 34 the following
offenses, if committed by a member of the Army, Navy, or
Air Forces, are punishable by death: committing, inciting,
conspiring to commit, or failing to suppress mutiny;
desertion or aiding desertion; cowardice; treacherous
acts; committing or inciting dereliction of duty; aiding
the enemy; inducing individuals subject to military law
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not to act against the enemy; imperiling Indian or allied
military, air, or naval forces in any way,
9. Other Offenses Not Resulting in Death
a. Being a party to a criminal conspiracy to commit a
capital offence is punishable by death.
b. Attempts to murder by those sentenced to life
imprisonment are punishable by death if the attempt
results in harm to the victim.
c. Calumniation under §120b of IPC is providing false
evidence with intent or knowledge of the likelihood
that another individual, or a member of a Scheduled
Caste or Tribe, would be convicted of a capital
offense due to such evidence carries the death
penalty if it results in the conviction and execution
of an innocent person.
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UN & Death Penalty
69
Now as we can see from the above image extracted from Amnesty
International that 135 countries have abolished death penalties
reason being it is against Human Rights. There has also been a
decrease in executions as compared to what the situation was in
the year of 2004.
69 AI Act 50/001/2014
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The countries that are still carrying out the executions are
unwilling to link capital punishments as a violation of Human
rights though UN has viewed the death penalty as a human rights
issue since 1948, when it adopted the Universal Declaration of
Human Rights.
Under UDHR Article 3 clearly states, "Everyone has the right to
life." The 1948 ratification of the UDHR has led to 135 nations
abolishing the death penalty over the course of the last 66
years.
In following years, the United Nations has taken further steps
to limit the use of capital punishment, including the
International Covenant on Civil and Political Rights (ICCPR) in
1966, during which the abolishment of the death penalty was
strongly encouraged for all but the most serious of crimes. In
1991, a Second Optional Protocol to the Covenant went into
force. The Second Optional Protocol to the Covenant required
the use of the death penalty be abolished for child offenders.70
In 2007, the World Coalition made one of the most important
decisions in its young history: to support the resolution of
the United Nations General Assembly for a moratorium on the use
of the death penalty as a step towards universal abolition. In
December 2012, the United Nations’ General Assembly voted on a
70UN and The Declaration of Human Rights, OCADP.ORG (Nov. 6, 2014 12:10 am), http://www.ocadp.org/un-and-the-declaration-of-human-rights.html
GUJARAT NATIONAL LAW UNIVERSITY Page 35
new resolution for a moratorium on the use of the death
penalty. Following the three previous resolutions, the
Coalition continued its action in favor of a global
moratorium.71 This October 10 2014 it marks the World and
European Day against the Death Penalty. In an increasing number
of countries around the world, capital punishment now belongs
to history. Among the 192 countries recognized by the United
Nations, 140 have abolished the death penalty. Three times, the
General Assembly of the United Nations has passed resolutions
by powerful majorities calling for a universal moratorium on
the death penalty, pending its full abolition. Along with the
United States, however, a number of countries in Asia
(including China, India and Japan), the Middle East and the
Arab World are still giving capital punishments although the
frequency of use of the death penalty varies widely.72
Chapter: Conclusion
71 Helping the world achieve a moratorium on executions, World Coalition (Nov. 4, 2014, 4:15 pm), http://www.worldcoalition.org/moratorium.html 72 On the road to abolishing the death penalty, The Hindu (Oct. 10, 2014, 7:20 pm),http://www.thehindu.com/opinion/op-ed/on-the-road-to-abolishing-the-death-penalty/article6485747.ece
GUJARAT NATIONAL LAW UNIVERSITY Page 36
“[M]any that live deserves death. And some that die deserve
life. Can you give it to them? Then do not be too eager to
deal out death in judgment. For even the very wise cannot
see all ends.”73
Several aspects of the human life are filled with mysteries which
even after all these technological advancement are hard to
explain, the Golden Ration of 1.618, the Fibonacci series Science
has proven established these as facts but it is still mystery why
the end result is this. The nature has its own mysteries,
functioning and life and death are in itself enigmatic. The
researcher believes it is against the law of nature to take
someone’s life even if the action could be justified as
punishment.
Nature has way of maintaining balance which is referred as
ecological balance which proposes that ecological system are
usually in a stable equilibrium, Life of a human being is among
those things, which nothing can ever replace and sentencing
someone a death penalty is nothing but disrupting that balance
and forcing the law of nature by taking away life of human being.
Capital punishment, the researcher believes is inhumane,
merciless and sadistic one act of a person how severe it may be
does not define his whole being.
So many human lives are being sacrificed in the name of justice;
does it give ends, which the lawmakers wanted to achieve? How
does a death reform a person to see and do things in a different 73
GUJARAT NATIONAL LAW UNIVERSITY Page 37
way to change the way one lives? Or are we hiding under the
protection of capital punishment in the name of justice from
someone who allegedly has committed a crime declaring there
single act to be the one which defines them but are we always
sure that no innocent victim has been convicted and sentenced to
die in vain that something as pure as human life was taken away
because of an act which that person or may not have done.
Even when the culprit is guilty of the offences how does killing
of a human being in the name of justice different from murder
what justice might be for you may not be for me, by this we
stating that a man should be punished with death sentence because
the majority set of mind believe the act was heinous and should
not be repeated so instead of giving him a chance to rectify his
mistake they believe his existence must be scraped out of this
earth.
Looking at the statistics of China it can established that China
has long way to abolish death penalty though the recent
advancement of removal of 9 crimes from the criminal code of
China says something about the shift.
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Bibliography
Books
K.I. VIBHUTE, CRIMINAL JUSTICE (Eastern Book Co., 2004)
GUJARAT NATIONAL LAW UNIVERSITY Page 39
YONGPING LIU, ORIGINS OF CHINESE LAW – PENAL AND ADMINISTRATIVE LAW IN
ITS EARLY DEVELOPMENT (New York: Oxford University Press, 1998).
R.W.M Dias, Jurisprudence (Adity Books Public Ltd. New Delhi,
5th ed. 1994)
Articles
China mulls ending death penalty for nine crimes, THE HINDU (Oct. 27, 2014, 10:07 am),
http://www.thehindu.com/news/international/china-mulls-ending-death-
penalty-for-nine-crimes/article6538206.ece
Helping the world achieve a moratorium on executions, World Coalition (Nov. 4, 2014,
4:15 pm), http://www.worldcoalition.org/moratorium.html
On the road to abolishing the death penalty, The Hindu (Oct. 10, 2014, 7:20
pm), http://www.thehindu.com/opinion/op-ed/on-the-road-to-
abolishing-the-death-penalty/article6485747.ece
UN and The Declaration of Human Rights, OCADP.ORG (Nov. 6, 2014 12:10 am),
http://www.ocadp.org/un-and-the-declaration-of-human-
rights.html
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