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ACKNOWLEDGEMENT

On the completion of this project I find that there are many persons to whom I would like to express my
gratitude, since without their help and co-operation the success of this educative endeavor would not
have been possible.

I welcome this opportunity to express my sincere gratitude to my teacher and guide Mr. VIJYANT
SINHA, who has been a constant source of encouragement and guidance throughout the course of this
work.

I am grateful to the IT Staff for providing all necessary facilities for carrying out this work. Thanks are
also due to all members of the Library staff for their help and assistance at all times. I am also grateful
to Our Faculty Vijyant sir for being helpful for her constant support.

Rahul Kumar
Barnwal

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INTRODUCTION

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. Most
systems of religion or ethics teach that bad actions lead to bad consequence. There are two main reasons
for inflicting the punishment. One is the belief that it is both right and just that a person who has done
wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages
others from doing wrong. The death penalty also rests on the same proposition as other punishments.
Because of its drastic and irrevocable nature, it is even more open to debate over its fairness,
appropriateness and effectiveness than other punishments. The proponents of death penalty believe that
it is an effective way to stop crime. They focus on the death penalty as a deterrent or something that will
stop or lesson crime. They believe that the death penalty brings the most justice to the victim of a
heinous crime.

Death penalty has been a mode of punishment since time immemorial. The arguments for and against
has not changed much over the years. Crimes as well as the mode of punishment correlate to the culture
and form of civilization from which they emerge. At this point of time when the issue [ whether capital
punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how
the legislatures and the apex Court have dealt with this issue every time it has come up before them.
Another issue is regarding the extent of judicial discretion.

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MEANING OF CAPITAL PUNISHMENT 1:

According to oxford Dictionary, Capital punishment is the legally authorized killing of someone as
punishment for a crime. Capital punishment is the death sentence awarded for capital offences like
crimes involving planned murder, multiple murders, repeated crimes; rape and murder etc where in the
criminal provisions consider such persons as a gross danger to the existence of the society and provide
death punishment2. Capital punishment or the death penalty is a legal process whereby a person is put to
death by the state as a punishment for a crime.

CAPITAL PUNISHMENT: AN EFFECTIVE DETERRENT TO CRIME:

There is a great deal of debate over how powerful a deterrent capital punishment is. Most of us have an
instinctive feeling that the death penalty must deter, at least to some extent. Deterrence is one of the
fundamental reasons for punishment of any kind. Since death is considered the harshest punishment
available under the law, it seems logical that it must also be the most effective deterrent to crime. The
English barrister Sir James Stephen remarked, “No other punishment deters men so effectually from
committing crimes as the punishment of death.” “In any secondary punishment, however terrible, there
is hope; but death is death; its terror cannot be described more forcibly3.” The federal prisons now have
custody of a man sentenced to life imprisonment, who, since he has been in prison, has committed three
more murderers on three separate occasions both of prison guard and inmates. There is no further
punishment that he can receive. In effect, he has a license to murder4.”

1 http://oxforddictionaries.com/definition/english/capital%2Bpunishment

2 http://www.legal-explanations.com/definitions/capital-punishment.htm
3 Quoted by Leonard A. Stevens in Death Penalty: The Case of Life vs. Death in the United States
( New York: Coward, McCann & Geoghegan, 1978), 73
4 “Bring Back the Death Penalty,” U.S. News & World Report (April 1976); reprinted in The Death Penalty, ed. Irwin Isenberg

(New York: H.W. Wilson, 1977), 133


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ORIGINS OF CAPITAL PUNISHMENT:

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of the
ancient society imposed it only for the most heinous crimes and some imposed it for minor offences. For
example, under Rome’s law in the 5th century B.C., death was the penalty for publishing “insulting
songs” and disturbing the peace of the city at night. Under Greece’s Draconian Legal Code in the 7th
century B.C., death was the punishment for every crime. Beginning in ancient times the executions were
frequently carried out in public. Public executions provided benefits for everyone. For the surviving
victims of the condemned criminals, the execution provided the grim satisfaction of witnessing the final
punishment of those who had wronged them. For the authorities, executions served as graphic
demonstrations of their determination to protect the public safety. Public executions even helped the
authorities to do their jobs serving as grisly object lessons for potential wrongdoers.

The extent or the nature of the punishment depended as much on the social standing of the criminal as
on the nature of the crime. The commoners were executed much more often than nobles. Minorities and
foreigners were treated more harshly than members of the dominant group. The methods of execution
were also varied. The common modes of inflicting death sentence on the offender were drowning,
burning, boiling, beheading, hurling the offender from rock, stoning, strangling, impelling, amputating,
shooting by gun or starving him to death. Hanging and beheading were the most common methods of
execution in Europe and Great Britain. At present the common modes of execution of death sentence are
asphyxiation, electrocution, guillotine, shooting and hanging. The method of execution by electrocution
was first used at Auburn State Prison, New York on 1890 and is now being extensively used in USA,
UK, USSR, Japan and other European countries. The use of Guillotine for execution was introduced in
France in 1792. The method of hanging the condemned prisoner till death has been commonly in use in
almost all the countries since ages. In India public hanging is now held to be unconstitutional5.5

5 5 Lachma Devi v. State of Rajasthan, (1986) Cri L.J. 364

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CAPITAL PUNISHMENT IN VARIOUS COUNTRIES:

CAPITAL PUNISHMENT IN AMERICA:

In the wake of the American Revolution, the U.S. Constitution gave both the states and the federal
government the right to set their own criminal penalties. The very first congress of the United States
passed federal laws making death penalty for rape and murder and other crimes. Although the death
penalty was widely accepted in the early United States but its approval was not the universal. Some of
the people viz. Cesare Beccaria, Thomas Jefferson, Dr. Benjamin Rush expressed serious doubts and
objections and advocated that capital punishment might be abolished. And in 1917, the state of Missouri
and the territory of Puerto Rico both abolished the death penalty. The opposition to the death penalty
gathered strength again in the mid-twentieth century after the controversial executions of Willie Francis,
Burton Abbot, Caryl Chessman and Barbara Graham. Once again, several states either abolished or
restricted the use of the death penalty.

In 1972, American abolitionists scored their greatest success. In the case of Furman v. Georga6, the U.S.
Supreme Court declared that the death penalty, as it was then carried out, was ‘cruel and unusual’
punishment, therefore it was unconstitutional. Four years later, the Court ruled in several cases. In
Gregg v. Georgia7, Supreme Court said that death penalties imposed in some states under new laws were
constitutional. But the murder is a capital offence in all thirty-eight of the U.S. states

6
408 US 238 - 1972
7
428 US 153 - 1976
that have the death penalty
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CAPITAL PUNISHMENT IN BRITAIN:

Hanging was the traditional form of capital punishment in England. However it was not the only
one. In England beheading was normally reserved for the highborn and it was last used in 1747.
Hanging was the most common method of execution in England from Saxon times until the 20th
century. The last people to be hanged in Britain were two men, Peter Allen and Gwynne Jones who
were hanged on the same day in 1964. In Britain the death penalty for murder was abolished for an
experimental period of 5 years in 1965. It was abolished permanently in 1969. Free votes were held
on the restoration of capital punishment in 1979 and 1994 but both times it was rejected8.

CAPITAL PUNISHMENT IN CHINA:

Capital punishment in the People's Republic of China is usually administered to offenders of serious
and violent crimes, such as aggravated murder, but China retains in law a number of nonviolent
capital offenses such as drug trafficking. The People's Republic of China executes the highest
number of people annually, though other countries (such as Iran or Singapore) have higher per
capita execution rates. Watchdog groups believe that actual execution numbers greatly exceed
officially recorded executions; in 2009, the Dui Hua Foundation estimated that 5,000 people were
executed in China — far more than all other nations combined.

CAPITAL PUNISHMENT IN INDIA:

Year 1975 and 1991, about 40 people were executed. Year 1995-2004 when there were no
executions. Anti-death penalty activist dispute those figures, claiming much higher numbers on
Death Row and actual executions. In August 2004, a 41-year old former security man, Dhananjoy
Chatterjee, was executed for raping and killing a 14 year old schoolgirl in Calcutta. This was the
country’s first execution since 1995. In 2005, about a dozen people were on the country’s Death
Row.

8 http://www.localhistories.org/capital.html
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It was reported in 2006 that the number of mercy petitioners with President Abdul Kalam from
convicts on death row stands at 20, including 12 were submitted when K.R. Narayanan was the
president9.

Mode of Execution:
The execution of death sentence in India is carried out by two modes namely hanging by neck till
death and being shot to death. The jail manuals of various States provide for the method of
execution of death sentence in India. Once death sentence is awarded and is confirmed after
exhausting all the possible available remedies the execution is carried out in accordance with
section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death. Section
354(5) of Code of Criminal Procedure says, “When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead.” It is also provided under The Air Force
Act, 1950, The Army Act 1950 and The Navy Act 19572 that the execution has to be carried out
either by hanging by neck till death or by being shot to death.

CAPITAL PUNISHMENT UNDER VARIOUS LEGISLATIONS IN INDIA:

Capital punishment is prescribed as one of the punishments in various provisions of the Indian Penal
Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act 1985, and
The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati
(Prevention) Act, 1987, The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957. In
the Prevention of Terrorism Act, 2002 also, there was a provision for death penalty for causing
death of persons using bombs, dynamite or other explosive substances in order to threaten the unity
and

9http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html 10
AIR 1983 SC 47
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