The provision of Capital Punishment or Death Penalty is an integral part of the legal system of our country. When this punishment .is given, the one who gets the punishment is put to death. On one hand the victim gets justice whereas on the other, a member of someone's family ceases to exist. However, some crimes are so serious that the person who commits the crime should not be excused with a punishment lesser than Death. For, when a culprit who has committed a heinous crime is released, he or she can once again create an atmosphere of fear in the society.
In the Legal Talk segment of Udaipur Times, we interacted with Senior Advocate Rao Ratan Singh, a senior lawyer of Udaipur, regarding the provisions of this important punishment. Some salient points of our interaction with him are produced in this post.
Advocate Rao Ratan Singh explained that the death penalty is awarded only in the 'rarest of the rare' cases for a crime, which has been done in very aggravated circumstances, such as murder, or more than one murder or the person is a habitual offender and has committed many such crimes in the past. In such a situation, it is seen that if the convict meets the definition of a cruel person and if he is released then he will be fatal for the society. Even more serious crimes like rape with murder under POCSO, Sedition, Treason, and other specific crimes have a provision of death penalty.
Rao Ratan Singh explained that the law provides for exceptions in case of recipients of Capital Punishment.
The most important of all in this category are pregnant women. If a pregnant woman is sentenced to death, her execution will results in the death of the foetus (the unborn child she is carrying), which means two deaths at once. Therefore, if a pregnant woman is sentenced to death, there is a provision in the law to commute the sentence to life imprisonment.
Apart from this, there are two other types of persons who are exempted from capital punishment:
It is often seen that when a lower court awards a death sentence, the convict is given relief from an upper court. The convict is either awarded life imprisonment or a lower degree of punishment.
Explaing this, Advocate Singh said that it is clear in our law that for offences registered under IPC, full investigation is carried out and a chargesheet is presented after investigation after that the trial is conducted under CrPC (Indian Penal Procedure Code). The trial goes on because no innocent person should be punished, even if the culprit is acquitted due to lack of evidence. That's why this provision has been made in CrPC that those who are accused will be given full opportunity to appoint a lawyer and if they can't, then a lawyer is made available to them from the government, who will argue the case on their behalf. Citing the example of the Mumbai terror attack, Rao said that Pakistan's terrorist Kasab was also given a chance under the law to present his defence. This means that the legal process is there should be followed in spirit. An appeal to the higher court leads to further independent investigations and it is possible the award of death penalty may be overturned.
Many a time it is also seen that both the lower and upper courts have given the death sentence, but the President has granted the convict relief from death sentence. Explaining this provision, Rao Ratan Singh said that during the investigation of the lower court, the whole trial goes on. In some cases the trial is conducted by the Sessions Court and in some cases the trial is conducted by the Lower Court. But some cases like POCSO cases, ACD (bribe cases), and NDPS (narcotics) cases have special courts.
Under the Constitution of India (Article 72), the President of India can pardon or commute the sentence of a convicted person, especially in cases carrying the death penalty. An equal and parallel power under Article 161 is vested in the Governors of each State.
Pardon is an expression of the President's pardon and is usually given in recognition of the applicant's acceptance of responsibility for a crime and having established good conduct for a significant period after the conviction or sentence has been completed. It is not a symbol of innocence.
Interview with Senior Advocate Rao Ratan Singh
Amendments in Capital Punishment
When asked whether he thinks there should be any amendments to the Death Penalty in India, Advocate Singh said:
"Amendment by Legislature is done after taking into consideration the situation and the condition of the society. Amendements are necessary from time to time, like the STSC Act, like the amendment of the Constitution, etc. Accordingly, provisions of Law also need amendment.. The provision in the law should also be made considering the condition of the society and its effect on the public. Overall, the public should get justice."
Police presence in Court
On this question, Adv Rao Ratan Singh said that the police prepares the complete case and presents it in the court. In India, whatever crimes come under IPC, the right to investigate them is been given to the police under CrPC and its trial runs in the court. Without trial, no one can be convicted or acquitted. This means that no innocent person should be punished and no criminal should be spared, hence this is a mandatory provision. For this reason, it is customary for the police to appear in the court every time so that they have complete control and understanding over the investigation done by them. Further their presence is needed from time to time to questions the investigation done by them as well.
Rao Ratan Singh mentioned about the famous Rama murder case while elaborating on the rare Capital Punishment trial in Udaipur. 10 people died together in the case at Rama village, located about 30 km from Udaipur. Earlier, the trial of this case was going on in Rajsamand, but later its trial was conducted in ADJ 1, Udaipur. The incident took place near Nathdwara. Adv Ratan Singh said that God only knows what is the reality of the case, but the trial of the case was conducted under Section 302 (Capital Punishment) of the IPC. At that time, Judge Kulshrestha Sb has written in his decision that "the accused should be sent to the same place where the souls of the 10 dead persons have gone". It was an emotional decision. When trial of this case was heard by the Rajasthan High Court at length, the defense lawyer Dungar Singh got all the accused acquitted.
After the main points of the above interview, let us tell you about some important things related to Capital Punishment:
Capital Punishment or Death Penalty has always been a subject of controversy not only in the Indian Judiciary but also in most of the developed countries. The authority of the state was questioned and established after the execution of the death penalty.
Indian criminal jurisprudence is based on a combination of two theories: One is the Reformist theory, according to which crime is treated like a disease. This doctrine holds that "you cannot heal by killing". The main objective of this theory is to bring about a change in the personality and character of the criminal, to make him a useful member of the society. The second principle that is followed is the Preventive principle, which states that 'prevention is better than cure'. Prevention is better than crime. The purpose of this principle is to deter the offender by incapacitating the offender by giving him death sentence or by imprisoning him or by suspending his driving license, as the case may be.
In India, the death penalty is given for the most genuine and horrific of crimes. Death penalty is given for murder, theft with murder, taking up arms against the administration, etc. This punishment is awarded when the court comes to the conclusion that considering the circumstances of the case, the punishment does not fall short of life imprisonment.
Execution under capital punishment in India is done by hanging the culprit till he/she dies (To be Hanged till Death). Nathuram Godse, the killer of Mohandas Karamchand Gandhi in 1949, was the first criminal to be hanged in independent India. The Supreme Court of India suggested that the death penalty should be awarded in cases that fall within the purview of 'RAREST OF THE RARE' cases.
Since 2010, two persons have been given the death sentence. One was Afzal Guru, a terrorist who attacked the Indian Parliament in December 2001. His death sentence was carried out by hanging on 9 February 2013 in Tihar Jail, Delhi. The other is that of Ajmal Kasab, the lone surviving terrorist of the 2008 attack in Mumbai. He was hanged to death on 21 November 2012 at Yerwada Central Jail, Pune at 7:32 am.
The Army Act, 1950 and the Air Force Act, 1950 also provide for the provisions and manner of awarding capital punishment. Section 34 of the Air Force Act, 1950 empowers the court to award capital punishment for the offenses mentioned in Section 34(a) to (o) of the Act.
Section 163 of the Air Force Act, 1950 provides that:
"In imposing a sentence of death, a court-martial shall, in his discretion, direct that the offender be hanged by the neck until he is dead or by being shot."
It gives discretionary power to the court to provide for execution of death sentence either by execution or by shooting. The Army Act, 1950 and the Navy Act, 1957 also provide for similar provisions, as do the Air Force Act, 1950.
The issue of capital punishment is a debatable issue, some people find it unconstitutional while some are in favor of it. Even after studying for a long time, there is no conclusion about it.