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HindustanTimes Thu,28 Aug 2014

To hang or not? Courts struggle with death sentence

Satya Prakash, Hindustan Times  New Delhi, October 09, 2013
First Published: 09:25 IST(9/10/2013) | Last Updated: 09:59 IST(9/10/2013)

Thirty-three years after the Supreme Court propounded the doctrine of ‘rarest of rare’ limiting the scope for awarding death penalty to murder convicts, courts continue to struggle to objectively apply it while choosing between life imprisonment and capital punishment.

The Supreme Court verdict commuting Tandoor murder case convict former Youth Congress leader Sushil Sharma’s death penalty to life imprisonment only highlights the dilemma faced by the courts.

Both the trial court and the Delhi High Court had held that Naina Sahni’s murder fell within the category of rarest of rare.

But the SC disagreed saying, it can’t be said that the convict can’t be reformed.

It was in Bachan Singh’s case in 1980 that the Supreme Court came out with the rarest of rare doctrine drawing from rationale behind Section 354(3) of the Criminal Procedure Code (CrPC) that requires a judge to record special reasons for awarding death sentence.

There is no statutory definition of rarest of rare. It depends upon facts and circumstances of a particular case, brutality of the crime, conduct of the offender, previous history of his involvement in crime, chances of reforming and integrating him into society, etc.

The generally applied test is whether the survival of an orderly society demands extinction of life of the person, who has committed the murder and whether failure to impose death sentence on him would bring to naught the sentence of death provided under Section 302 of the Indian Penal Code.

Pre-planned, heart-less, brutal, cold-blooded and sordid nature of the crime, without giving any chance to the victim are generally taken into account to decide whether a particular case falls within the parameters of rarest of rare.

“Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of otherwise of retaining death penalty,” the SC said in Bachan Singh Vs. State of Punjab.

The crime has to be viewed from various angles — manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of crime and magnitude and personality of victim of murder.

But the manner in which the doctrine has been applied by various courts raises many questions. In the recent past, the apex court also refused to award death penalty in many cases raising eyebrows from various quarters.

In 2004, the SC sent Dhananjoy Chatterjee to the gallows for rape and murder of a minor in Kolkata.

But in the Priyadarshini Mattoo rape and murder case, the SC in 2009 commuted the death penalty of convict Santosh Singh holding that mitigating factors outweighed aggravating factors.

Is it all about the judges’ legal acumen interpreting the law and applying it to a given set of facts or has to do something with his personal philosophy? The question remains unanswered.


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