The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. Sevaka Perumal etc. v. State of Tamil Nadu (1991 (3) SCC 471). undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. General Sentencing guidelines :- Bikram Dorjee vs State Of West Bengal on 24 April, 2009
(quoting Dennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 ) The object of sentencing should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". (reiterated inState Of M.P vs Kashiram & Ors on 2 February, 2009) State of M.P. Versus Udaibhan CRIMINAL APPEAL NO. 183 OF 2016 It is the duty of the Court awarding sentence
to ensure justice to both the parties and therefore undue leniency in
awarding sentence needs to be avoided because it does not have the
necessary effect of being a deterrent for the accused and does not
re-assure the society that the offender has been properly dealt with. It is
not a very healthy situation to leave the injured and complainant side
thoroughly dissatisfied with a very lenient punishment to the accused. Supreme Court of India
State Tr.P.S.Lodhi Colony,New ... vs Sanjeev Nanda on 3 August, 2012 Generally, the policy which the court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed. Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.
Community Service for Avoiding Jail Sentence
Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost. There are five theories of punishments.
1. Deterrent Theory
2. Retributive Theory
3. Preventive Theory
4. Reformative Theory
5. Expiatory Theory Method of execution internationally and Report of the Royal Commission on Capital Punishment
(U.K.), September, 1953 and some other excerpts of books for sentencing :- Lethal Gas :- Execution by lethal gas is discussed by the Royal Commission in paragraphs 719 to 722 of its Report. The Commission says in paragraph 719 that they did not inspect any lethal gas chamber during their visit to America, but they were supplied with written evidence about execution by lethal gas. They also had the advantage of hearing evidence from one Mr. Philip Allen, the then Deputy Chairman of the Prison Commission and of receiving a report from the English Neurologist, Dr. Macdonald Critchley, both of whom had inspected the lethal chamber at St. Quentin Prison, California, of which the famous Clinton Duffy was a warden. In paragraph 720 of the Report, the Royal Commission says: "The lethal chamber is very elaborate in comparison with the apparatus needed for other methods of execution. It is expensive to install and requires a complicated series of operations to produce the gas and to dispose of it afterwards". The description of the gas chamber method given by the Royal Commission is like this:
The chamber is required to be hermetically sealed to prevent leakage of cyanide gas, the doors leading to the chamber are required to be connected with an electrically controlled panel, the prisoner's arms, legs and abdomen are tied to the chair with leather straps, a pound of sodium cyanide pellets is placed in a trap in the seat of the chair and three pints of sulphuric acid and six pints of water mixed in a lead container are placed in a position to receive the cyanide pellets. A rubber hose is connected to the head of a stethoscope which is strapped to the prisoner's chest. The entire clothing of the prisoner is removed except for shorts. Finally, a leather mask covers the prisoner's face. After the prisoner is pronounced dead, Amonia gas is forced into the chamber until the indicators within the chamber show that all cyanide gas has been neutralised. The Amonia gas is then removed by a specially constructed exhaust fan.
Paragraph 721 of the Royal Commission's Report shows that the length of time taken by this method of execution is about 45 minutes. In paragraph 722 the Commission says that when this method was first employed, it was thought that the gas had a suffocating effect which would cause acute distress, if not actual pain, before the prisoner became unconscious. According to the Commission, it seems to be now generally agreed that unconsciousness ensues very rapidly in the gas chamber method.
Clinton Duffy, warden of San Quentin Prison, California, says that the operation of the gas chamber execution includes "funnels, rubber gloves, graduates, towels soap, pliers, scissors, fuses and a mop: in addition, sodium cyanide eggs, sulphuric acid, distilled water, and amonia". Lethal injection :- The Royal Commission has discussed that method in paragraphs 735 to 749 of its Report. Lethal injection is by and large an untried method. But that is not its most serious defect. The injection is required to be administered intravenously, which is a delicate and skilled operation. The Prison Medical Officers who were interviewed by the Royal Commission doubted whether the system of lethal injection was more humane than hanging (See paragraph 739 of the Report). The British Medical Association told the Commission that no medical practitioner should be asked to take part in bringing about the death of a convicted murderer and that the Association would be most strongly opposed to any proposal to introduce a method of execution which would require the services of a medical practitioner, either in carrying out the actual process of killing or in instructing others in the technique of that process. The Commission expressed its conclusion in paragraph 749 by saying that it could not recommend that, in the present circumstances, lethal injection should be substituted for hanging since they were not satisfied that executions carried out by the administration of lethal injections would bring about death more quickly, painlessly and decently in all cases. The Commission, however, recommended, unanimously and emphatically, that the question should be periodically examined, especially in the light of the progress made in the science of anaesthetics. article "The Death Penalty: Moral argument and capricious practice" by Andrew Rutherford, a senior Lecturer in Law at the Southampton University, which appeared in 'The Listener' of July 7, 1983, published by the British Broadcasting Corporation. In that article, the writer refers to an incident to the effect that in 1982 December, a prisoner was put to death in Texas by means of an injection of sodium pentothol. The incident led the American Medical Association to declare: "The use of a lethal injection as a means of terminating the life of a convict is not the practice of medicine". The writer proceeds to say that there is not likely to be any great enthusiasm for the method of electrocution as well, since in April 1983, it took three 30-seconds shots of 1,900 volts before a man in Alabama was pronounced dead.
Electrocution :- The Royal Commission mentions in paragraph 717 of its Report that during their visit to America, they inspected the electric chairs in the Sing Sing Prison, New York and the District of Columbia Jail, Washington, and that they received evidence about the use of the electric chair in other States. The Commission has given the following account of the method of electrocution based primarily on the information obtained by them in Washington:
"The execution takes place at 10 a.m. At midnight on the preceding night the condemned man is taken from the condemned cell block to a cell adjoining the electrocution chamber. About 5.30 a.m., the top of his head and the calf of one leg are shaved to afford direct contact with the electrodes. (The prisoner is usually handcuffed during this operation to prevent him from seizing the razor.) At 7.15 a.m., the death warrant is read to him and about 10 O'clock he is taken to the electrocution chamber.... Three officers strap the condemned man to the chair, tying him around the waist, legs and wrists. A mask is placed over his face and the electrodes are attached to his head and legs. As soon as this operation is completed (about two minutes after he has left the cell,) the signal is given and the switch is pulled by the, electrician; the current is left on for two minutes, during which there is alternation of two or more different voltages. When it is switched off, the body slumps forward in the chair. The prisoner does not make any sound when the current is turned on, and unconsciousness is apparently instantaneous. He is not, however, pronounced dead for some minutes after the current is disconnected. The leg is sometimes slightly burned, but the body is not otherwise marked or mutilated."
In paragraph 7 8, the Commission says:
"No case of mishap was recorded in Washington, but it seems that in some other States there have been occasions when the current failed to reach the chair when the switch was engaged. Some States install an emergency generator in order that an execution may not be delayed by failure of the commercial."
in the issue of `Time' magazine, dated Jan. 24, 1983. The write-up. which is predominantly in favour of abolition of the death sentence, contains a vivid description of the methods of electrocution, gas chamber and lethal injection which are used in some of the States in America. The cover story, "An Eye for an eye", gives the following description of electrocution at page 12 of the issue;
"The chair is bolted to the floor near the back of a 12 ft. by 18 ft. room. You sit on a seat of cracked rubber secured by rows of copper tacks. Your ankles are strapped into half-moon-shaped foot cuffs lined with canvas. A 2-in-wide greasy leather belt with 28 buckle holes and worn grooves where it has been pulled very tight many times is secured around your waist just above the hips. A cool metal cone encircles your head. You are now only moments away from death. But you still have a few seconds left. Time becomes stretched to the outermost limits. To your right you see the mahogany floor divider that separates four brown church-type pews from the rest of the room. They look odd in this beige Zen-like chamber. There is another door at the back through which the witnesses arrive and sit in the pews. You stare up at two groups of fluorescent lights on the ceiling. They are on. The paint on the ceiling is peeling.
You fit in neat and snug. Behind the chair's back leg on your right is a cable wrapped in gray tape. It will sluice the electrical current to three other wires : two going to each of your feet, and the third to the cone on top of your head. The room is very quiet. During your brief walk here, you looked over shoulder and saw early morning light creeping over the Berkshire Hills. Then into this silent tomb.
The air vent above your head in the ceiling begins to hum. This means the executioner has turned on the fan to suck up the smell of burning flesh. There is little time left. On your right you can see the waist- high, one-way mirror in the wall. Behind the mirror is the executioner, standing before a gray marble control panel with gauges, switches and a foot-long lever of wood and metal at hip level.
The executioner will pull this lever four times. Each time 2,000 volts will course through your body, making your eyeballs first bulge, then burst, and than broiling your brains ..."
Electrocution was first introduced in the New York State prison at Auburn on August 6, 1890. The initial victim was one William Kemmler whose challenge to the validity of the method of electrocution as a cruel and unusual punishment was rejected by the U.S. Supreme Court. Though this method is now advocated as a humanitarian move, in reality, its original introduction appears to have been the result of the effort of an electrical company to market its products.
Though it is generally believed that death by electrocution is entirely painless, a distinguished French scientist, L.G.V. Rota, disputes this contention. Labelling this method of executing the death sentence as a form of torture, Rota contends that a condemned victim may be alive for several minutes after the current has passed through his body without a physician being certain whether death has actually occurred or not. He adds that some persons have greater physiological resistance to the electric current than others, and that, no matter how weak the person, death cannot supervene instantly. Another attack on the pain of death in electrocution was made by Nicola Tesla, the electrical wizard. The opposite view is expressed by Robert G. Elliott in `Agent of Death' (New York: Dutton, 1940). Robert Elliott, one-time executioner for several eastern States, who officiated at 387 executions maintains that electrocution is painless.
HANGING :- In the year 1949 the Government of United Kingdom appointed a Commission to report upon the various facets of the capital punishment. The Commission submitted its report in September 1953 after extensive research into the questions referred to it and after interviewing experts, visiting jails and examining the merits and demerits of hanging as a method for executing the death sentence. Chapter 13 of the Royal Commission's Report deals with the "methods of execution". In paragraph 700 of that Chapter the Commission records that it heard evidence on the existing method of hanging from various witnesses, including Prison Commissioners and Prison officials, one Mr. A. Pierepoint, "the most experienced executioner in this country", and under-sheriffs responsible for execution in London and Lancashire. The Commission inspected execution chambers in England and Scotland and was given demonstrations of the procedure at an execution. They also received evidence about executions in the United States by means of electrocution and lethal gas. During their visit to the United States, they took the opportunity of inspecting the electric chair in two prisons. Lastly, they questioned medical witnesses about possible new methods of execution.
In paragraph 703 of the Report the Commission notes that public opinion was disturbed by evidence that the task of hanging was sometimes bungled. In 1885 a condemned murderer had to be reprieved after three unsuccessful attempts had been made to hang him. There were also other untoward occurrences: Occasionally, a man might be given too short a drop and die slowly of strangulation, or too long a drop and be decapitated. A Committee was therefore appointed in U.K. in 1886 to report on the best way of ensuring "that all executions may be carried out in a becoming manner without risk of failure or miscarriage in any respect". This Committee made recommendations about the length of drop, improvements in the apparatus and preliminary tests and precautions which were designed to ensure speedy and painless death by dislocation of the vertebrae without decapitation. The improved system of hanging now in vogue came into being as a result of the recommendations of this Committee. The Home Office informed the Commission that "There is no record during the present century of any failure or mishap in connection with an execution, and, as now carried out, execution by hanging can be regarded as speedy and certain".
In paragraph 704 of the Report, the Commission says that it was "on the score of humanity" that execution by hanging was defended by witness after witness. The Prison Officers held the system of hanging to be as humane as circumstances permit, while the Prison Medical Officers said "We cannot conceive any other method which could be more humane, efficient of expeditious than judicial hanging. The Prison Chaplains called it "simple, humane and expeditious". The British Medical Association told the Commission that "hanging is probably as speedy and certain as any other method could be adopted. The Royal Medico- Psychological Association, after stating that the method of execution ought to be "certain, humane, simple, instantaneous and expeditious", said: "On the information available to the Association, the method of hanging fulfils these criteria more satisfactorily than any other so far proposed or in practice". A knowledgeable witness told the Commission that the method of hanging was "certain, painless, simple, humane and expeditious".
In paragraph 705 of the Report, the Commission refers to the interesting development that the method of execution whose special merit was originally thought to be that it was peculiarly degrading and therefore deterrent, was defended before it on the ground that it was uniquely humane. The reason for this surprising inversion is that as a result of the recommendations made by the Committee which was appointed in 1886, "a method originally barbarous..... has been successfully humanised".
In Paragraph 708, the Commission proceeds to examine the question whether there is any seemly and practicable method of execution which is as painless as hanging or even more speedy, or which, even though it may have no advantage over hanging in those respects, is free from the degrading associations of that method. If capital punishment were being introduced for the first time, the Commission considered it unlikely that hanging would be chosen as a method for executing the death sentence. The Commission, however, found that no useful propose would be served by making experiments unless the necessity was urgent or the utility evident. And this applied with special force to a subject which was highly charged emotionally and was exceptionally controversial.
IN current time :-
Hanging is the best method for executing the death sentence since by that method, death ensues instantaneously due to a combination of shock, asphyxia and crushing of Spinal Medulla. He says that there are misconceived notions about judicial hanging due to improvised and faulty mechanism of the process involved in suicidal hangings and due to lack of knowledge of the anatomical structure of the neck and human body, in hanging, whenever there is injury to Medulla, to Pons (part of brain stem) or Medulla oblongata, all the three vital centres called as "Tripod of life" are affected which causes instantaneous death.
In a book called "Hanging through the ages (History of Capital Punishment)" by George R. Scott (Torchstream Books, London), the entire history of the technique of hanging has been traced. The author says at page 211 that the introduction of an improved, technique of hanging has served to expedite the process of hanging, giving less pain to the prisoner and that, "the long drop" and other improvements have achieved a great deal though, despite everything that has been done, accidents are inevitable. In "Kenny's Outlines of Criminal Law," (19th Ed. 1966) edited by J.W. Cecil Turner, it is stated at page 618, foot- note 5 that: "Hanging does not operate now through suffocation, but by a `long drop', invented by Prof. Haughton of Dublin, which dislocates the vertebrae and is calculated to produce an instantaneous and painless death."
In "New Horizons in Criminology" by Harry Elmer Barnes and Negley K. Teeters (3rd Ed. 1966), it is stated: "Society has resorted to many different methods in executing criminal and other allegedly dangerous persons. Drowning, stoning to death, burning at the state and beheading have all been used in the past. Of all the modern methods of administering the death penalty, hanging has been the most widely used. We read of hangings in the earliest historic literature and throughout the world even today it is still the most widely used.,, In a publication called `Capital Punishment' under the auspices of the United Nations, Department of Economic and Social Affairs, New York, 1962, it is stated in paragraph 57 of the chapter called `The Execution' that in earlier times, a great variety of methods of execution was known to the law, the carrying out of a sentence of death being sometimes attended by `cruel forms of torture intended in certain cases to aggravate the suffering. The publication says: .`On grounds of humanity and of the respect due to the human person the modern law has in general dropped these practices. The death penalty means nowadays, simply the deprivation of life. The differences which today exist regarding the methods of carrying out the death sentence are attributable to the efforts made to render death quicker and less painful". The same paragraph mentions that hanging has generally been abandoned in the United States. According to the issue of `Time' magazine dated January 24, 1983, only four States of America still prescribe hanging as a method for executing the death sentence. Paragraph 59 of U.N. publication says that "Hanging remains the most frequent method in use". It lists over 25 countries of the world in which the method of hanging is used for executing the death sentence. Death penalty illustrative guidelines to be considered before granting it : - After referring to a catena of judicial pronouncements post Bachan Singh case and Machhi Singh case, Supreme Court in the case of Ramnaresh and Ors. v. State of Chhattisgarh (2012) 4 SCC 257, Supreme Court, tried to lay down a detailed list of aggravating and mitigating circumstances. It would be apposite to refer to the same here:
“Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty Under Section 43 Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(9) When murder is committed for a motive which evidences total depravity and meanness.
(10) When there is a cold-blooded murder without provocation.
(11) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.”
Supreme Court in Sangeet and Another v. State of Haryana (2013) 2 SCC 452, extensively analysed the evolution of sentencing policy in India and stressed on the need for further evolution. In para (77), Court emphasized on making the sentencing process a principled one, rather than Judge-centric one and held that a re-look is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of Supreme Court.
As dealing with sentencing, courts have thus applied the “Crime Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded. Constitutionality of death by hanging under 354 (5) was upheld in :- Supreme Court of India
Deena @ Deena Dayal Etc. Etc vs Union Of India And Others on 23 September, 1983
the method of hanging prescribed by section 354(5) of the Code of Criminal Procedure does not violate the guarantee contained in Article 21 of the Constitution. The material shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner's apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.
At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life. But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. 'Imaginable', because in the very nature of things, there are no survivors who can give first-hand evidence of the pain involved in the execution of a death sentence. Dead men tell no tales. The question as regards the factor of pain has therefore to be judged on the basis of scientific investigations and by applying the test of reason. The conclusion that the system of hanging is as painless as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and the findings of modern medicine.
On the question of pain involved in a punishment, the concern of law has to be to ensure that the various steps which are attendant upon or incidental to the execution of any sentence, more so the death sentence, do not constitute punishments by themselves. If a prisoner is sentenced to death, it is lawful to execute that punishment and that only. He cannot be subjected to humiliation, torture or degradation before the execution of that sentence, not even as necessary steps in the execution of that sentence. That would amount to inflicting a punishment on the prisoner which does not have the authority of law. Humaneness is the hall-mark of civilised laws. Therefore, torture, brutality, barbarity, humiliation and degradation of any kind is impermissible in the execution of any sentence. The process of hanging does not any of these, directly, indirectly or incidentally.
ON this reasoning Supreme Court held that method prescribed by section 354(5) of the Code of Criminal Procedure for executing the death sentence does not violate the provision contained in Article 21 of the Constitution.
For validity of execution of a death sentence in India , the test is :-
(i) The act of execution should be as quick and simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner's apprehension.
(ii) The act of the execution should produce immediate unconsciousness passing quickly into the death.
(iii) It should be decent.
(iv) It should not involve mutilation.
Mohd. Arif @Ashfaq v. Registrar, Supreme Court of India & Ors. ,, the Constitution Bench of this Court has laid down that the review petition in a case of death sentence shall be heard in the open court by giving an opportunity to the review petitioner to make oral submissions, unlike other review petitions which are decided by the Court by circulation in Chambers.Not only this, such a review petition is to be heard by a Bench consisting of minimum three Judges. Supreme Court of India
Shabnam vs Union Of India And Anr on 27 May, 2015 the execution of the sentence of death cannot be carried out in such an arbitrary manner, keeping the prisoner in the dark and without allowing him recourse and information. Essential safeguards must be observed. Firstly, the principles of natural justice must be read into the provisions of Sections 413 and 414 of Cr. P. C. and sufficient notice ought to be given to the convict before the issuance of a warrant of death by the sessions court that would enable the convict to consult his advocates and to be represented in the proceedings. Secondly, the warrant must specify the exact date and time for execution and not a range of dates which places a prisoner in a state of uncertainty. Thirdly, a reasonable period of time must elapse between the date of the order on the execution warrant and the date fixed or appointed in the warrant for the execution so that the convict will have a reasonable opportunity to pursue legal recourse against the warrant and to have a final meeting with the members of his family before the date fixed for execution. Fourthly, a copy of the execution warrant must be immediately supplied to the convict. Fifthly, in those cases, where a convict is not in a position to offer a legal assistance, legal aid must be provided. These are essential procedural safeguards which must be observed if the right to life under Article 21 is not to be denuded of its meaning and content. Supreme Court after referring to requirements of article 21 and Shatrughan chauhan and opportunity available to convicts to file for review and mercy petition and other legal remedies(such as curative petitions etc) , held that convict cannot be executed till they have exhausted all their legal remedies. In this case death warrants were signed by the Sessions Judge in a haste, without waiting for the exhaustion of the aforesaid remedies on the part of the convicts, the same were quashed and set aside as the act of the sessions judge fell foul of article 21 of the constitution. Supreme Court of India
Shatrughan Chauhan & Anr vs Union Of India & Ors on 21 January, 2014 Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.
Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison manuals have provision for informing the convict and his family members of the rejection of mercy petition by the President. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President. Furthermore, even where prison manuals provide for informing the prisoner of the rejection of the mercy petition, we have seen that this information is always communicated orally, and never in writing. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing.
Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
Minimum 14 days notice for execution: Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of 1 day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:-
a) It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.
b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.
It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time. Even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts. Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.
Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.
Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre-requisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.
Final Meeting between Prisoner and his Family: While some prison manuals provide for a final meeting between a condemned prisoner and his family immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.
Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, we think in the light of the repeated arguments by the petitioners herein asserting that there is dearth of experienced hangman in the country, the same must be made obligatory. By making the performance of post mortem obligatory, the cause of the death of the convict can be found out, which will reveal whether the person died as a result of the dislocation of the cervical vertebrate or by strangulation which results on account of too long a drop. Our Constitution permits the execution of death sentence only through procedure established by law and this procedure must be just, fair and reasonable. In our considered view, making post mortem obligatory will ensure just, fair and reasonable procedure of execution of death sentence." Supreme Court of India
Harbans Singh vs State Of U.P. & Others on 12 February, 1982 prior to the actual execution of any death sentence, the Jail Superintendent should ascertain personally whether the sentence of death imposed upon any of the co-accused of the prisoner who is due to be hanged, has been commuted. If it has been commuted, the Superintendent should apprise the superior authorities of the matter, who, in turn, must take prompt steps for bringing the matter to the notice of the Court concerned. In this case 3 convicts were there. All three had been equal parties to the crime and equally guilty, but one was hanged, one got his punishment reduced to life imprisonment, and one got a stay on his execution. Supreme court found that one convict who was hanged couldn't obtain the benefit of commutation which others got , and yet he was executed only because he resigned himself to his fate after his first SLP was dismissed. It treated that instance as a travesty of justice . Delhi prison manual , 2018 how death penalty is carried out (in brief) an optional read :- Arrangement for execution
872. On receipt of the date of execution of the prisoner , the
Superintendent shall be authorized to fix the time of execution
sufficiently in advance. A report intimating the time of the execution
shall be sent to the Inspector General, the Session Judge and the
Government.
Note: - The execution shall take place early in the morning before it
gets bright. The latest time of the day for different seasons will be
in accordance with orders passed separately by the Government.
873. The Executive Engineer (PWD) shall arrange the inspection of the
gallows every quarter and before the date of a hanging as and when
intimated by the Superintendent. The gallows shall be inspected
and the rope tested in the presence of the Superintendent, the evening
before the execution, he being personally responsible that these
arrangements are properly made. A new rope need not necessarily
be used for every execution, but the Superintendent shall see that
the rope is carefully tested. As a rule, a dummy or a bag of sandweighing 1 & 1/2 times the weight of the prisoner to be hanged
and dropped between 1.830 and 2.440 meters will afford a safe test of
the rope. Two spare ropes for each prisoner sentenced to death shall
be kept ready in reserve on the scaffold in the event of accidents.
874. The Medical Officer shall report in the medical report about the
drop to be given to the prisoner at least four days before the date
on which the prisoner is to be executed. The Medical Officer of the
prison shall work out the details of the length of the drop to be
given to a prisoner on principles shown below:-
(i) If the prisoner weighs less than 45.360 Kgs, he should be
given a drop of 2.4440 meters:
(ii) If the prisoner weighs from 45.330 to 60.330 Kgs, he should
be given a drop of 2.290 meters.
(iii) If the prisoner weights more than 60.330 Kgs, but not more
than 75.330 Kgs, he should be given a drop of 2.130 meters;
(iv) If the prisoner weighs more than 75.330 Kgs. But not more
than 90.720 Kgs, he should be given a drop of 1.980 meters;
(v) If the prisoner weighs more than 90.720 Kgs, he should be
given a drop of 1.830 meters.
875. Provided that so long as the extreme limits of 1.830 meters on the
one hand and 2.440 meters on the other hand are adhered to if,
owing to physical peculiarity of the prisoner, the Medical Officer is
of a opinion that the drop should be increased or decreased, effect
should be given to the Medical Officer’s opinion.
Note: The above calculations are based on the assumption that the
execution rope will be made of cotton yarn/manila of 2.59 to 3.81
cms Diameter.
876. The following measures shall be adopted regarding the fixing of
the length of the rope to permit the required drop:
i) The height of the prisoner to the angle of the jaw
immediately below the left ear shall be accurately measured,
as well as,
ii) The height from the drop shutter, when fixed in position,
to the lower portion of the ring in the beam to which the
rope will be affixed.
877. These two measurements will determine the distance when theprisoner is standing in position on the drop, from the point of the
latter’s jaw to the ring in the beam. The measurement of the
prisoners neck shall also be carefully taken, the neck measurement
and the height measurement to angle of jaw being carried out
immediately after the prisoner has been sentenced to death. The
length of rope for any given drop shall be the length of the drop
plus the distance from the angle of the prisoner’s jaw to the ring in
the beam.
878. That is to say, that assuming the distance between the angle of the
jaw and the iron ring to be 1.220 meters and the desired drop to be
2.130 meters, the amount of free hanging from the ring shall be
3.350 meters from the ring to the leather washer maintaining the
loop in position on a pillow of gunny cloth, filled with sand, of the
same thickness as the neck of the prisoner.
879. Wax or butter shall be applied to the loop of the rope. After testing,
the rope and other equipment shall be securely locked and sealed
in steel box and shall be kept in charge of Deputy Superintendent. Execution
884. On the morning of the day of execution, the Superintendent shall,
before proceeding to the cell of the condemned prisoner, enter his
office and ensure that there is no communication awaiting him
connected with the execution from Competent Authority.
Thereafter, the Superintendent, the District
Magistrate/Additional District Magistrate, the Medical Officer
and the Deputy Superintendent will visit the prisoner in his cell
before the hour fixed for execution. Any documents requiring
attestation by the prisoner such as his will etc. shall be signed
and attested in the presence of Superintendent and, the District
Magistrate/Additional District Magistrate.
885. The Superintendent, the District Magistrate/Additional District
Magistrate and the Medical Officer will then proceed to the scaffold,
the prisoner remaining in his Cell in the observation of the Deputy
Superintendent. Thereafter, the hands of the prisoner sentenced to
deaths will next be pinioned behind his back and his legirones (if
any) struck off.
886. The prisoner shall now be marched to near to the scaffold under
the charge of the Deputy Superintendent and guarded by the Head
Warder and six warders, two preceding in front, two behind and
two holding arms.
887. On the arrival of the prisoner near the scaffold where the
Superintendent, Magistrate and Medical Officer have already taken
their place, the Superintendent shall inform the Magistrate that he
had identified the prisoner and read with warrant over to prisoner
in vernacular or in the language the prisoner understands.
888. A cotton cap with flap shall be put on the prisoners face just before
he enters the gallows-enclosures. The prisoner should not be
allowed to see the gallows. The prisoner shall now mount the
scaffold and shall be placed directly under the beam to which the
rope is attached, the warders still holding him by the arms.
889. The prisoner shall than be made over to the executioner. The
executioner shall next strap his legs tightly together, and adjust the rope tightly round his neck, the nose being 1-1/2 inches to the
right or left of the middle line and free from the flap of the cap.
890. The Superintendent shall invariably see that the rope round the
neck of the prisoner is adjusted properly and the knot is placed in
the proper position.
891. The warders holding the prisoner’s arms shall now withdraw and
at a signal from the Superintendent, the executioner shall draw the
bolt.
892. The operations mentioned above should be done simultaneously
and quickly as possible. On completion of all these operations the
Superintendent shall give a signal, on seeing which the executioner
in charge shall push the lever to release the trap-door.
893. The body shall remain suspended for half an hour before being
taken down or until the Resident Medical Officer has certified that
the life is extinct.
Death sentence in armed force's law can be by firing squad as well : Section 163 of the Air Force Act states: "In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death." Section 166.The Army Act, 1950 Form of sentence of death. In awarding a sentence of death a court- martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead, or shall suffer death by being shot to death. Naval act 147. Form of sentence of death.—In awarding a sentence of death, a courtmartial shall in its discretion direct that the offender shall suffer death by being
hanged by the neck until he be dead or shall suffer death by being shot to death.
Law Commission of India in its 187th report on 'Mode of execution of death sentence and incidental methods compared various techniques of death penalty and found death by shooting to be least torturous. COMPENSATION: - Supreme Court of India
Palaniappa Gounder vs State Of Tamil Nadu & Ors on 4 March, 1977
Equivalent citations: 1977 AIR 1323 357 (1) Clause(b) has no application to cases in which the heirs of a person whose death has been caused apply for compensation because that clause deals with the payment of compensation to the very person to whom. any loss or injury has been caused as a result of the offence committed against him or his property and when compensation is recoverable by such person in a Civil Court. Clause (d) deals with a different Class of cases altogether and need not detain us. Clause (c) of s. 357(1) under which the High Court has passed the order for compensation enables the Court to direct that the whole or any part of the fine recovered may be applied in paying compensation to the persons who are under the Fatal Accidents Act, 1855 entitled to recover damages from the person sentenced for the loss resulting to them from the death of the person whose heirs, as described in the Act of 1855, they claim to be. Since under the Act of 1855, persons who may be compensated are the wife, hus- band, parent (including grand-parents) and child (including grand-children and step-children). Supreme Court of India
Sarwan Singh And Ors. vs State Of Punjab on 11 August, 1976
Equivalent citations: AIR 1976 SC 2304 that it is only appropriate to direct payment of compensation to the dependants of the victim by the accused who has the capacity to pay. Dilip S. Dahanukar v Kotak Mahindra Co. Ltd. & Anr. [(2007) 6 SCC 528], wherein, while considering the difference between the provisions of Section 357(1)(b) and Section 357(3) Cr.P.C., i.e., the difference between "fine" and "compensation" the Court observed that the distinction between Sub- Sections (1) and (3) of Section 357 is apparent as Sub-Section (1) provides for application of an amount of fine towards the purposes indicated while imposing a sentence of which fine forms a part, whereas Sub-Section (3) is applicable in a situation where the Court imposes a sentence of which fine does not form a part of the sentence. Court went on to observe that when fine is not imposed, compensation can be directed to be paid for loss or injury caused to the complainant by reason of commission of offence and while Sub- Section (1) of Section 357 provides for application of the amount of fine, Sub-Section (3) of Section 357 seeks to achieve the same purpose. In the case of Hari Singh v Sukhbir Singh [(1998) 4 SCC 551], wherein it was, inter alia, held that since the imposition of compensation under Section 357(3) Cr.P.C. was on account of social concern, the Court could enforce the same by imposing sentence in default, particularly when no mode had been prescribed in the Code for recovery of sums awarded as compensation in the event the same remained unpaid. In Sugnathi Suresh Kumar v Jagdeeshan [(2002) 2 SCC 420], where the aforesaid views were reiterated and it was stated in paragraph 11 of the said judgment as follows :-
"11. When this Court pronounced in Hari Singh v. Sukhbir Singh (supra) that a Court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all Courts in India to follow the said course. " (Section 431 Cr.P.C. provides that any money (other than a fine) payable by virtue of any order made under the Code and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.t in that view of the matter, compensation awarded under Section 357(3) Cr.P.C. could also be recovered under Section 431 Cr.P.C. read with Section 421 Cr.P.C., which provides the methods for recovery of fine imposed by the Court from the accused. In this connection, reference was also made to Sections 64 to 70 of the Indian Penal Code (IPC), which empower the Court to impose a default sentence in case of non-payment of fine. It was submitted that default sentence is not a substantive sentence under the IPC and it comes to an end the moment fine is paid by the accused. Section 30 Cr.P.C. also recognizes the power of the Court to impose a default sentence on non- payment of fine) Shantilal v State of Madhya Pradesh [(2007) 11 SCC 243] The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or `otherwise'. A terms of imprisonment ordered in default of payment of fine stands on a different footing."
The same view was expressed earlier by Supreme Court in Kuldip Kaur v Surinder Singh [(1989) 1 SCC 405], where it was held that a default sentence is a mode of enforcing recovery of amount imposed by way of compensation.
Supreme Court of India
Vijayan vs Sadanandan K. & Anr on 5 May, 2009 The provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 IPC, empower the Court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same.Having regard to the views expressed hereinabove, we hold that while awarding compensation under Section 357(3) Cr.P.C., the Court is within its jurisdiction to add a default sentence of imprisonment . Hari Kishan & Anr vs Sukhbir Singh & Ors on 25 August, 1988
Equivalent citations: 1988 AIR 2127 Supreme court concerned with Section 357 sub-section (3). Held "It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent. a constructive approach to, crimes. It is indeed a step forward in our criminal justice system. We, therefore,recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default." In State of Punjab vs. Gurmej Singh [2002 (6) SCC 663], Court held :
"A reading of sub-section (3) of Section 357 would show that the question of award of compensation would arise where the court imposes a sentence of which fine does not form a part."his Court also held that section 357(3) will not apply where a sentence of fine has been imposed. In Sivasuriyan vs. Thangavelu [2004 (13) SCC 795], Court held :- "On a plain reading of the aforesaid provision, it is crystal clear that the power can be exercised only when the court imposes sentence by which fine does not form a part. In the case in hand, a court having sentenced to imprisonment, as also fine, the power under sub-section (3) of Section 357 could not have been exercised." R. Vijayan vs Baby & Anr CRIMINAL APPEAL NO. 1902 OF 2011 It is evident from Sub-Section (3) of section 357 of the Code, that where the sentence imposed does not include a fine, that is, where the sentence relates to only imprisonment, the court, when passing judgment, can direct the accused to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. The reason for this is obvious. Sub-section (1) of section 357 provides that where the court imposes a sentence of fine or a sentence of which fine forms a part, the Court may direct the fine amount to be applied in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a Civil Court. Thus, if compensation could be paid from out of the fine, there is no need to award separate compensation. Only where the sentence does not include fine but only imprisonment and the court finds that the person who has suffered any loss or injury by reason of the act of the accused person, requires to be compensated, it is permitted to award compensation under compensation under section 357(3).
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