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A Bench of Rajasthan High Court comprising Justice Sabrina and Justice Chandra Kumar Sonagara recently upheld the conviction of a murder accused named Mohan Singh alias Mahaveer Singh, for murdering a women by strangulation and thereafter cutting her abdomen and taking out certain organs. The High Court upheld his conviction for the offences under Section 302, 391 and 201 of the Indian Penal Code allowing a maximum sentence of death which was awarded to him. The accused was already convicted under other murder cases of heinous nature. The Court held that the prosecution had clearly established the guilt of the accused without any shadow of doubt, using circumstantial evidence as well as medical evidence including DNA reports, to negate any possibility of innocence of the accused.
This brings to light the controversy surrounding imposition of death penalty in India and the domestic legislations as well as case laws and conflicting global movement in favour of abolishing death penalty.
Facts of the Case
In February 2020, a Trial Court in Kota convicted Mohan Singh for murdering a woman whose naked body was found in a sack in March 2019, though rape charges could not be proved against him. Mohan has previously been convicted for killing three women for which he was serving a life sentence. In 1997, Mohan had committed a double murder of a mother and her daughter in Kota, whose bodies he damaged using a beer bottle. In 2003, he raped and strangled a woman for which he was serving life imprisonment in Sanganer Open Jail, from where he escaped in 2016 and committed the present murder. Mohan had not only murdered the women but had thereafter cut her abdomen and replaced certain organs with her kurti and petticoat which he sewed in her abdomen with a wire. The post-mortem report revealed the missing liver, ovary, uterus and part of the deceased’s intestine.
Looking at the heinous manner of the crime by the accused, as well as his criminal antecedents, the Rajasthan High Court upheld his conviction of death penalty. In 2018, the courts imposed 162 death sentences out which 58 were for murder along with a sexual offence and 45 were for murder only.
Legal Provisions Involved
Section 302 of the Indian Penal Code provides the punishment for the offence of murder. It punishes murder with death, or imprisonment for life and also a fine.
The IPC also allows imposition of death penalty for waging war or attempt to do so against the Government of India (section 121), abetment of mutiny (section 132), abetment of suicide of a child or an insane person (section 305), kidnapping for ransom (section 364A), dacoity with murder (section 396), for repeat offenders in case of rape (section 376E) and by virtue of Criminal Law (Amendment) Act, 2018 for inflicting injuries which causes death or causes the rape victim to be in a persistent vegetative state (section 376A) or for committing rape on a women under twelve years of age (section 376AB) and gang rape of women under twelve years of age (section 376DB).
Article 21 of the Indian Constitution states that no person shall be deprived of life and personal liberty, except according to procedure established by law. There have been many discussions as to how the imposition of death penalty is a violation of the fundamental right to life, but the five bench judge of the Supreme Court in the case of Bachchan Singh v. State of Punjab held, by a majority of 5:4, that death penalty as an alternative punishment is not unreasonable or violative of Articles 14, 19 or 21 of the Constitution.
Articles 72 and 161 of the Indian Constitution empower the President and the Governors to grant pardon, suspend, remit or commute sentence of any person sentenced to death penalty among other cases. The Supreme Court has observed in the case of Shatrughan Chauhan v. Union of India that power conferred upon the executive under these Articles is not a matter of privilege or grace but an important constitutional duty to be performed in the aid of justice and not in its defiance.
Out of all the punishments available, the capital punishment is the most severe and extreme. There has been a practice of imposing capital punishment in almost every country since time immemorial. The irreversible nature of the act makes its imposition limited only to those convicted of the most gruesome, heinous and anti-social crimes. With time however, most of the countries put an end to this practice and became signatories to international conventions to prohibit the same. Currently, 133 countries have abolished death penalty in law or in practice. Even the Indian judiciary has acted in accordance with this international trend. In 1979, the constitutionality of capital punishment was challenged before the Supreme Court in the case of Rajendra Prasad v. State of Uttar Pradesh where the Justice Krishna Iyer held that death sentence is not justified unless it is shown that the criminal was dangerous to the society. He also pleaded for the abolition of death penalty and held that discretion given to the judge to choose between death and life imprisonment was violative of Article 14 which condemns arbitrariness.
However, the Supreme Court overruled Rajendra Prasad’s judgment in the case of Bachchan Singh v. State of Punjab and Machhi Singh v. State of Punjab but these cases limited the imposition of death penalty to the ‘rarest of the rare’ cases and issued guidelines to consider the manner of commission of offence, motive, anti-social behaviour or socially abhorrent nature of the crime, magnitude of the crime and the personality of the victim. The concerns about discrimination and arbitrariness are still present in the system despite international organizations like Amnesty International and United Nations seeking the abolition of the death penalty through its resolutions.
A reason for its ban is the possibility of an innocent person being subjected to the strictest punishment of all. The Law Commission’s 2015 Report stated that 28.9% of the cases where the Trial Court had awarded the death sentence resulted in an acquittal by the High or the Supreme Court. One of the arguments made against the abolition of death penalty is the deterrent effect that such a sentence has on members of the society and the belief that it would actually deter others from committing the same offence. However, the reports and statistics suggest otherwise. The report of Royal Commission on Capital Punishment (1953) which was reiterated in the case of Triveniben v. State of Gujrat concluded that there was no conclusive statistical evidence that capital punishment was any more deterrent that other forms of punishments. Even after bringing the POCSO Act and various amendments to it as well as the Criminal Law (Amendment) Act incorporating death penalties for various offences, the number of cases of sexual assault and rape against children have gone up. Experts believe that the larger interest for bringing such laws is to empathise with the public anger.
Another serious drawback of capital punishments is that since these acts came into force, there have been more and more cases of murder of the victims of sexual assault by the offender in an attempt to escape prosecution and possibly a death penalty. This can be observed by the fact that the number of death sentences imposed in cases of murder including sexual violence jumped 35% from the previous year. Another problem with the imposition of capital punishment is the possibility that the cases of such nature will not get reported. The National Crime Records Bureau, in its 2016 Report indicated that 94.6% of the rape accused were the victim’s relatives, including brother, father, grandfather, sons or acquaintances. In this situation, there is a chance that the victim, or if the victim is a minor then his or her guardians may not report the case to shield the relative accused to protect them from being subjected to death penalty.
Taking a look at the last fifteen years, the number of people sentenced to death, that were actually executed, stand at eight people, including Dhananjay Chatterjee’s hanging in 2004, Md. Ajmal Kasab’s, Md. Afzal Guru’s, Yakub Memon’s hanging in 2012, 2013 and 2015 respectively and the four of the convicts of Nirbhaya gang rape in 2012, who were hung in March 2020. Thus, despite the provisions allowing death penalty in various offences, the Courts of India have acted in accordance with the international trend of minimising the imposition of capital punishment and used the discretion only in the rarest of the rare cases, involving terrorism or gruesome acts of rape and murder. The power vested with the judges has been and should continue to be used very sparingly, in imposing the most severe and strict punishment there is, death.
Author: Ashray Singh, School of law, NMIMS Mumbai.
Editor: Astha Garg, Junior Editor, Lexlife India.