SUBJECT: CONSTITUTIONAL LAW I

PROJECT TOPIC:
PERSONAL LIBERTY AND RAREST OF THE RARE CASE (ON
IMPOSITION OF CAPITAL PUNISHMENT

SUBMITTED BY
PREKSHA SINGH
ROLL NO. 1147
3 YEAR , 5th SEMESTER, B.A.LL.B(Hons.)

SUBMITTED TO
Prof. (Dr.) A.SUBRAHMANYAM
FACULTY OF CONSTITUTIONAL LAW- I

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

NOVEMBER, 2016

Acknowledgment
 PERSONAL LIBERTY AND RAREST OF THE RARE CASE

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere thanks
to all of them.

I am highly indebted to my Constitutional law-I Faculty, Prof. (Dr.) A.SUBRAHMANYAM for

his guidance and constant supervision as well as for providing necessary information regarding
the project & also for their support in completing the project.

I would like to express my gratitude towards my parents & member of Chanakya National Law
University for their kind co-operation and encouragement which help me in completion of this
project.

My thanks and appreciations also go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

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 PERSONAL LIBERTY AND RAREST OF THE RARE CASE

INDEX

I. INTRODUCTION..04
II. ARTICLE 21 AND CAPITAL PUNISHMENT08
III. CRITICAL STUDY AND JUDICIAL INTERPRETATION11
IV. CASE LAWS ON CAPITAL PUNISHMENT..16
V. CONCLUSION...20
VI.

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Chapter-1
Introduction
Though the phraseology of Article 21 starts with negative word but the word No has been used in
relation to the word deprived. The object of the fundamental right under Article 21 is to prevent
encroachment upon personal liberty and deprivation of life except according to procedure
established by law. It clearly means that this fundamental right has been provided against state
only. If an act of private individual amounts to encroachment upon the personal liberty or
deprivation of life of other person. Such violation would not fall under the parameters set for the
Article 21. in such a case the remedy for aggrieved person would be either under Article 226 of
the constitution or under general law. But, where an act of private individual supported by the
state infringes the personal liberty or life of another person, the act will certainly come under the
ambit of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon
personal liberty or deprivation of life of a person.1

The state cannot be defined in a restricted sense. It includes Government Departments,

Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but
it does not include non-statutory or private bodies having no statutory powers. For example:
company, autonomous body and others. Therefore, the fundamental right guaranteed under
Article 21 relates only to the acts of State or acts under the authority of the State which are not
according to procedure established by law. The main object of Article 21 is that before a person
is deprived of his life or personal liberty by the State, the procedure established by law must be
strictly followed. Right to Life means the right to lead meaningful, complete and dignified life. It
does not have restricted meaning. It is something more than surviving or animal existence. The
meaning of the word life cannot be narrowed down and it will be available not only to every
citizen of the country . As far as Personal Liberty is concerned , it means freedom from physical
restraint of the person by personal incarceration or otherwise and it includes all the varieties of
rights other than those provided under Article 19 2 of the Constitution. Procedure established by
Law means the law enacted by the State. Deprived has also wide range of meaning under the

1 Dr. Subhash C. Kashyap, Constitutional Law of India, Vol. I-II, 2008 edition,
Universal Law Publishing Co.

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 PERSONAL LIBERTY AND RAREST OF THE RARE CASE

Constitution. These ingredients are the soul of this provision. The fundamental right under
Article 21 is one of the most important rights provided under the Constitution which has been
described as heart of fundamental rights by the Apex Court.3

The Apex Court led a great importance on reasonableness and rationality of the provision and it
is pointed out that in the name of undue stress on Fundamental Rights and Individual Liberty, the
ideals of social and economic justice cannot be given a go-by. Thus it is clear that the provision
Article 21 was constructed narrowly at the initial stage but the law in respect of life and personal
liberty of a person was developed gradually and a liberal interpretation was given to these words.
New dimensions have been added to the scope of Article21 from time to time. It imposed a
limitation upon a procedure which prescribed for depriving a person of life and personal liberty
by saying that the procedure which prescribed for depriving a person of life and personal liberty
by saying that the procedure must be reasonable, fair and such law should not be arbitrary,
whimsical and fanciful. The interpretation which has been given to the words life and personal
liberty in various decisions of the Apex Court, it can be said that the protection of life and
personal liberty has got multi dimensional meaning and any arbitrary, whimsical and fanciful act
of the State which deprived the life or personal liberty of a person would be against the provision
of Article 21 of the Constitution.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in
A.K.Gopalan vs State of Madras4 that the contents and subject matter of Article 21 and 19 (1) (d)
are not identical and they proceed on total principles. In this case the word deprivation was
construed in a narrow sense and it was held that the deprivation does not restrict upon the right to
move freely which came under Article 19 (1) (d). at that time Gopalans case was the leading case
in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case
the scenario in respect of scope of Article 21 has been expanded or modified gradually through
different decisions of the Apex Court and it was held that interference with the freedom of a

2 M.P. Jain, Indian Constitutional Law (5th edn., New Delhi: Wadhwa & Co., 2003

3 1950 AIR 27, 1950 SCR 88

4 1978 SCR (2) 621

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 PERSONAL LIBERTY AND RAREST OF THE RARE CASE

person at home or restriction imposed on a person while in jail would require authority of law.
Whether the reasonableness of a penal law can be examined with reference to Article 19, was the
point in issue after Gopalans case in the case of Maneka Gandhi v. Union of India 5, the Apex
Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure
for depriving a person of his life or personal liberty.

5 1978 SCR (2) 621

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Objective

The objectives of the researcher are as follows:

To study about the application and scope of article 21

To study about the various judgment of Apex court on capital punishment

Scope of Study

The scope of the study will be:

To understand the role of Article 21.

To critical examine the rights under Article 21.

Hypothesis

The Indian Constitution has vested its citizen with RIGHT TO LIFE as enshrined in Article 21 of
the constitution but it is not an absolute right and comes with legal limitation

Research Methodology

The researcher has used doctrinal method of research. The researcher has confined his study to
various books and scholarly articles related to Constitutional law.
Sources of data:-
a. Primary Source-The Constitution of India, 1950
b. Secondary source- Reference books by D.D. Basu, H.M. Servai, M.P.Jain, V.N.Shukla
and legal data resources such as JSTOR, Westlaw, Manupatra etc.

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Chapter-2

Article 21 and Capital Punishment

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21 of
our Constitution is one of the important fundamental rights among those rights. This article 21 of
our constitution deals with Protection of Life and Personal Liberty.

The Article 21 reads as follows:

No person shall be deprived of his life or personal liberty except according to procedure
established by law.6

According to this article right to life means the right to lead meaningful, complete and dignified
life. It does not have restricted meaning. The object of the fundamental right under Article 21 is
to prevent any restriction by the State to a person upon his personal liberty and deprivation of life
except according to procedure established by law.The meaning of the words personal liberty
came up for consideration of the Supreme Court for the first time in A.K. Gopalan v. Union of
India7. The scope of Article 21 was a bit narrow at that time. In this case the Supreme Court held
that the word deprivation was construed in a narrow sense and it was held that the deprivation
does not restrict upon the right to move freely which came under Article 19 (1) (d). Finally, in
Maneka Gandhi v. Union of India, 8the Supreme Court has overruled Gopalans case and widens
the scope of the words personal liberty,

The issue of death penalty has been debated, discussed, studied from a prolonged time but till
now no conclusion can be drawn about the retention or abolishment of the provision. Death

6 Article 21 of Constitution of India

7 1950 AIR 27, 1950 SCR 88

8 1978 SCR (2) 621

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penalty has been a mode of punishment from time immemorial which is practiced for the
elimination of criminals and is used as the punishment for the heinous crimes.

Various countries have different outlook towards crime in different ways. In Arab countries they
choose the retributive punishment of an eye for an eye others have deterrent punishment. Of
late there has been a shift towards restorative and reformist approaches to punishment, including
in India.

India is one of the 78 retentionist countries which have retained death penalty on the ground that
it will be awarded only in the rarest of rare cases and for special reasons. Though what
constitutes a rarest of rare case or special reasons has not been answered either by the
legislature or by the Supreme Court.

The constitutional validity of the death penalty was challenged from time to time in numerous
cases starting from Jagmohan Singh v. State of U.P9 where the SC rejected the argument that the
death penalty is the violation of the right to life which is guaranteed under article 19 of the
Indian constitution. In another case Rajendra Prasad v. State of UP, Justice Krishna Iyer has
empathetically stressed that death penalty is violative of articles 14, 19 and 21. But a year later
in the landmark case of Bachan Singh v. State of Punjab 10, by a majority of 4 to 1
(Bhagwati J.dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad.
It expressed the view that death penalty, as an alternative punishment for murder is not
unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India,
because the public order contemplated by clauses (2) to (4) of Article 19 is different
from law and order and also enunciated the principle of awarding death penalty only in
the rarest of rare cases. The Supreme Court in Machhi Singh v State of Punjab 11 laid down the
broad outlines of the circumstances when death sentence should be imposed.

9 (1973) 1 SCC 20.

10 AIR 1980 SC 898

11 AIR 1983 SC 957.

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There has been a diverse opinion regarding the death penalty in India as some are in the favor of
the retention of the punishment while others are in the favor of its abolishment. Those who are
in the favor of death penalty argue that it should be given in the most heinous and rarest of the
rare crimes as for example the Delhi gang rape case the demand for death penalty for the accused
12
was raised . But the people who are against the capital punishment argue on the religious,
13
moral and ethical grounds and declare it inhuman and callous investment by unsure and
unkempt society. It is also suggested that it should be replaced with life imprisonment or any
substitute must be brought out.

12 http://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-india/1458
( accessed on nov,10 2016 00:15 IST)

13 ibid

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 PERSONAL LIBERTY AND RAREST OF THE RARE CASE

Chapter-3

Critical Study and Judicial Interpretation

Which crimes entail capital punishment in India?

Grave offences such as murder, rape with injuries that may result in the death of a victim and a
repeat offender, waging war against the State, and terrorism-related offences causing death are
some major crimes punishable with death under the Indian Penal Code. Similarly, there are
provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati
(Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital
punishment is prescribed as one of the punishments for serious offences. The now-repealed
Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act
(TADA) also contained provisions for death sentence.14

What has the Supreme Court ruled on the constitutional validity of the death sentence?

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all
persons. It adds no person shall be deprived of his life or personal liberty except according to
procedure established by law. This has been legally construed to mean if there is a procedure,
which is fair and valid, then the state by framing a law can deprive a person of his life. While the
central government has consistently maintained it would keep the death penalty in the statute
books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has

14 Dr. Subhash C. Kashyap, Constitutional Law of India, Vol. I-II, 2008 edition,
Universal Law Publishing Co

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upheld the constitutional validity of capital punishment in rarest of rare cases. In Jagmohan
Singh vs State of UP (1973)15, then in Rajendra Prasad vs State of UP (1979)16, and finally in
Bachan Singh vs State of Punjab (1980)17, the Supreme Court affirmed the constitutional validity
of the death penalty. It said that if capital punishment is provided in the law and the procedure is
a fair, just and reasonable one, the death sentence can be awarded to a convict. This will,
however, only be in the rarest of rare cases, and the courts should render special reasons
while sending a person to the gallows.

What would constitute a rarest of rare case?

The principles as to what would constitute the rarest of rare has been laid down by the top
court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Bachan Singh
formulated certain broad illustrative guidelines and said it should be given only when the option
of awarding the sentence of life imprisonment is unquestionably foreclosed. It was left
completely left upon the courts discretion to reach this conclusion. However, the apex court also
laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet
of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain
whether justice will not be done if any punishment less than the death sentence is awarded. Two
prime questions, the top court held, may be asked and answered. First, is there something
uncommon about the crime which renders the sentence of imprisonment for life inadequate and
calls for a death sentence? Second, are there circumstances of the crime such that there is no
alternative but to impose the death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offenders?

What has been the Supreme Courts view on mandatory death penalty?

15 AIR 1980 SC 898

16 AIR 1979 SC 917.

17 AIR 1980 SC 898

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The Supreme Court has always said that the death sentence should be given rarely. In Mithu vs
State of Punjab (1983)18, the Supreme Court ruled that the mandatory death penalty is
unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death
sentence for a person who commits murder while serving a life term in another case. The
Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life)
since an unreasonable distinction was sought to be made between two classes of murderes. It said
all murders would come under the ambit of Section 302, where a court would have the discretion
to award life term or death sentence.

Similarly, the Supreme Court ruled in State of Punjab vs Dalbir Singh in 2012 that mandatory
death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was
unconstitutional. The government moved a Bill to amend the Act, which is currently pending.
There are some other subsequent legislation prescribing the mandatory death penalty in drug
cases, but the Supreme Court has not yet struck down the penalty as unconstitutional. A pertinent
provision in the Narcotic Drugs and Psychotropic Substances Act, 1985, is currently under
scrutiny of the apex court.

What are the avenues available to a death-row convict?

After a trial court awards the death penalty, the sentence requires to be confirmed by a High
Court. The sentence shall not be executed till the time the High Court confirms it, either after
deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has
expired. If the High Court confirms the death penalty and it is also upheld by the Supreme Court,
a convict can file a review petition and a curative petition, if the review petition is nixed, for
reconsideration of the judgment.19

A Constitution Bench ruled last year that a review petition by a death-row convict will be heard
by a three-judge bench in open court. Such cases were earlier being heard by two-judge benches
in the judges chamber. A curative petition is still heard in judges chambers. Opening another
18 (1994) SCC 394

19 Dr. Subhash C. Kashyap, Constitutional Law of India, Vol. I-II, 2008 edition,
Universal Law Publishing Co.

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avenue, the Supreme Court, by yet another path-breaking verdict in 2014, ruled that unexplained
delay in execution was a ground for commutation of death penalty, and an inmate, his or her kin,
or even a public-spirited citizen could file a writ petition seeking such commutation.

Does the executive have a role in clemency?

Yes. If the Supreme Court turns down the appeal against capital punishment, a condemned prison
can submit a mercy petition to the President of India and the Governor of the State. Under
Articles 72 and 161 of the Constitution20, the President and Governors have the power to grant
pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence. This power was without any conditions until
the last years verdict by the Supreme Court, which held that judicial clemency could be granted
on the ground of inordinate delay even after a mercy petition is rejected.

How is the execution of death sentence carried out in India?

Execution is carried out by two modes, namely hanging by the neck till death, and being
executed by firing squad. The Code of Criminal Procedure calls for the method of execution to
be hanging. It states: When any person is sentenced to death, the sentence shall direct that the
person be hanged by the neck till the person is dead. In Deena vs Union of India (1993) 21, the
Supreme Court adjudicated upon whether the execution of death penalty by hanging by rope is
constitutional. It held the method prescribed under the CrPC was valid. Death by shooting is
contemplated under the Army Act, Navy Act and Air Force Act. They provide for the discretion
of the Court Martial to either provide for the execution of the death sentence by hanging or by
being shot to death.

Can an order of execution be challenged in a court of law?

20 Constitution of India bare act

21 (1994) SCC 394

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Yes. The procedure for carrying out the execution must also fulfill certain conditions as
stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014 22), and by the
Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). The
guidelines hold that a death-row prisoner must get free legal aid for drafting a mercy petition
and, if it is rejected, an intimation to the prisoner and his family is imperative. A minimum 14
days notice for execution must be given to let him prepare himself mentally for execution, to
make his peace with god, prepare his will and settle other earthly affairs, besides also allowing
him to have a last and final meeting with his family members. An execution can be stopped
owing to a convicts physical or mental ill health, the top court has held. The death warrants are
issued by the trial court.

In the cases of Shabnam and Salim, the validity of the death warrants have been challenged,
contending that the warrants did not specify any date of execution. Further, the convicts still had
the legal remedies of filing review and curative petitions, apart from moving clemency petitions.

When was the last execution carried out in India?

The last execution to take place in India was in February 2013, the hanging of Afzal Guru who
was convicted of plotting the 2001 attack on Indias Parliament. 26/11 terrorist Ajmal Kasab was
hanged in November 2012. Prior to these, the last execution was in 2004, when Dhananjoy
Chatterjee was executed for the murder and rape of a 14-year old girl. This was the countrys
first execution since 1995, when Auto Shankar, who was convicted of six murders in Tamil
Nadu, was executed. 23Therefore, while the courts sentenced more than 1,400 persons to death
between 2001 to 2011, only four have been hanged since 1995. Many of these cases are under
the consideration of the Supreme Court and the President for clemency. According to data
compiled by the NGO Amnesty International, Indian courts handed down at least 64 death
sentences in 2014, but no executions took place. A report by the Death Penalty Research Project

22 AIR 1983 SC 957.

23 (1994) SCC 394

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of the National Law University in Delhi indicated that at least 270 people were on death row
after exhausting all remedies available to them under the law.24

Chapter-4

Supreme Courts Judgement on the Rarest of the Rare Case

1. Bacchan Singh v. State of Punjab25

The constitutional validity of death penalty was considered by a Constitutional Bench of
the Supreme Court in Bacchan Singh v. State of Punjab. The reference to the
Constitutional Bench came about, as the Bench hearing the case noticed that there was a
conflict between two ruling of the Supreme Court on the issue of validity and scope of
the provision which enabled imposition of death penalty. The two cases were the
Constitutional Bench ruling in Jagmohan v. State of Uttar Pradesh , which declared death
penalty to be constitutionally valid, and the ruling of another three-member Bench in
Rajendra Prasad v. State of Uttar Pradesh , in which a majority of two judges, namely,

24 http://www.deathpenaltyindia.com/death-row-prisoner-information/ (accessed on
nov, 8th at 12:15 IST)

25 AIR 1999 SC 2640

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Krishna Iyer and DA Desai JJ, ruled that when the trial court comes to a conclusion that
the accused is guilty of murder, then the state through the prosecutor should be called
upon by the court to state whether the extreme penalty is called for; and if the answer is
in the positive, the court should call upon the prosecutor to establish, if necessary by
leading evidence, facts for seeking the extreme penalty of law. Those reasons and the
evidence would comprise special reasons as put forward by the state, on which basis the
court could decide whether to award death penalty or not. However, the accused would
be permitted to rebut the evidence, but the only consideration would be about the
sentence and not about the guilt. Further, the majority held the focus of determining
Special Reason was not to be the crime, but the criminal.

2. .State Of Tamilnadu v. Nalini 26

This case involved 26 persons accused of being involved in the conspiracy to assassinate
former Prime Minister of India, Rajiv Gandhi, in Sri Perumbudur near Madras on 21 May
1991. All the accused has been sentenced to death by the trial judge, who was a
designated TADA court judge. Of these 26, the Supreme Court finally confirmed the
conviction under s 120-B read with 302, IPC, against six accused only. The rest accused
were acquitted. Of the six people convicted of the murder, the death sentences of only
four accused, namely, Nalini, Santhan, Murugan and Perarivlan alone were confirmed.

3. Jai Kumar v. State of Madhya Pradesh27

In this case, the accused Jai Kumar was sentenced to death by the trial court for having
killed his sister-in-law, who was pregnant, and her eight-year old daughter, allegedly for
the reason that he has become enraged because his sister-in-law had not given him
enough food. However, his own mother tendered evidence that he had made an attempt to
rape the deceased sister-in-law, and encountering resistance from her, committed the
crime. The manner in which he committed the offence was gruesome. He locked his
mother inside a room, and thereafter went into the room of the deceased by removing
bricks near the room, and thereafter went into the room of that, he decapitated her head
and hung it from a tree in a jungle nearby. He had also taken the eight-year old niece and

26 AIR 1999 SC 1860

27 AIR 1994 SC 2420

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killed her with an axe saying that he was offering her as a sacrifice to Mahuva Maharaj
and thereafter buried her in sand, covered with stones. The Supreme Court noted that the
mitigating factors were hardly sufficient to balance out the aggravating circumstances.
The age of the accused being only 22 years was held not to be a consideration for the
murders of a 30-year old woman and her eight-year old daughter, which were affected in
a cold-blooded manner, while the two victims were in a helpless and hapless situation.
The manner in which the bodies were dealt with after committing the murder did not
permit any consideration of commutation of death sentence to life imprisonment. The
facts established the depravity and criminality of the accused in no uncertain term.

4. Suresh Chandra Bihari v. State of Bihar28

In this case, the accused was alleged to have conspired with several others to kill his wife
and two young children. The main grudge that Suresh Bahri has against his wife was that
she was interfering in his property dealing and wanted to sell their Ranchi house so that
they could migrate to America with the sale proceeds and settle there with their children.
The main accused enticed her to come to Ranchi from Delhi on the pretext that a sale
deed for selling the house was to be executed on 11 October 1983, and killed her on the
night of 10 October itself. The evidence disclosed that the murder was murder was
committed in an extremely brutal, diabolic, gruesome, and revolting manner. Her body
was then cut into two and disposed. Similarly, the two children were taken to a farm
house after telling them that they were going for a pleasure trip, and killed there. Their
bodies were cut into pieces and thrown into Varuna river. Considering the fact that it was
the father himself who had committed such gruesome murder, the Supreme Court
confirmed the death sentence as the matter came into the rarest or rare categories.

5. Dhananjoy Chatterjee alias Dhanoye vs. State of W.B 29

In offences involving gender crimes, the Supreme Court gave the following guideline:
In recent years, the rising crime rate- particularly violent crime against women has made
the criminal sentencing by the courts a subject of concern. Today there are admitted
disparities. Some criminal get very harsh sentences while many receive grossly different

28 1994)2 SCC 220

29 (2005) CrLJ 2174 (SC).

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sentence for an essentially equivalent crime, and shockingly large number even go
unpunished thereby encouraging the criminal in the ultimately, making justice suffer by
weakening the systems credibility. Of course, it is not possible to lay down any cut and
dry formula relating to imposition of sentence but the object of sentencing should be to
see that crime does not go unpunished and the victim of crime as also the society has the
satisfaction that justice has been done to it. In imposing sentences in the absence of
specific legislation, Judges must consider variety of factors and after considering all those
factors and taking an overall view of the situation, impose sentence which they consider
to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating
circumstances have also to be taken into consideration. The measure of punishment in a
given case must depend upon the atrocities of the crime, the conduct of the criminal and
the defenceless and unprotected state of the victim. Imposition of appropriate punishment
is the manner in which the courts respond to the societys cry for justice against the
criminal. Justice demands that court should impose punishment befitting the crime so that
the courts reflect public abhorrence of the crime. The courts must not only keep in view
the rights of the criminal but also the rights of the victim of crime and the society at large
while considering imposition of appropriate punishment.

6. Holiram Bardolai v. State of Assam30

The Supreme Court confirmed the death sentence by agreeing that the case at hand,
wherein the accused-appellant committed multiple murders in pre-meditated, brutal and
vicious manner, was within the category of rarest of rare cases deserving death
sentence. The court listed the following aggravating circumstances against the accused
for confirming the death sentences awarded to him by the lower court and confirmed by
the high court. These were:
(i)It was a case of cold-blooded murder;
(ii) The accused appellant was leading the gang;
(iii) The victims did not provoke or contribute to the incidents;
(iv) Two victims were burnt to death by locking them in a room from outside;
(v) One of the victims was a young boy of about six years, who, somehow, managed
to come out of the burning house, but was mercilessly thrown back into the fire by the
appellant;

30 (2004) 2 SCC 338.

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(vi) The dragging of one of the deceased by the appellant to his house and then cutting
him into pieces in broad daylight in the presence of bystanders;
(vii) The entire incident took place in the broad daylight and the crime was committed
in the most barbaric manner to deter others from challenging the supremacy of the
appellant in the village;
(viii) The entire incident was pre-planned by the accused appellant.
The court did not find any mitigating circumstances in favour of the accused.

Chapter-V

Conclusion

The researcher after doing the study and comparing the cases has understood that capital
sentence does not or on a very small scale serve as a deterrent theory of punishment. There have
been cases like the Nirbhaya Case which are heinous but even after giving the capital
punishment to the accused, similar cases have been happening. In the recent case of Yakub
Memon, a new face of the Indian Judiciary was highlighted. The Supreme Court opened at 02:30
IST to decide the final plea of Yakub Memon. The second hypothesis has been proved correct
that capital sentence is very rarely given in India.

The researcher, in the due course of the project has tried to analyse various cases where death
penalty was given or converted to life imprisonment. The project started with the meaning of
death penalty and the cases where death penalty is given. Subsequently, the scope of study of the
research to understand how far does death penalty violates the fundamental rights has been
discussed by understanding the case of Bachan Singh v. State of Punjab. In the Rajeev Gandhi
assassination case out of 26 people who were accused only 4 main offenders were given death
penalty. In the Jai Kumar case, the accuseds conduct after killing the sister-in-law and her child
was taken into account and the case was said to fall in rarest of rare case category. In Suresh
Chandras case, the gruesome conduct and the abhorrent conduct of the accused while killing his

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wife and children was taken into account and the case falls under the rarest of rare case category.
In the case of Dhananjay Chatterjee, the court observed the crimes against women and took into
account the act of the accused and the helplessness of the victim. In Sushil Murmus case, a man
was accused of killing his nine year old kid. The court considered the case and stated that it fell
in the rarest of rare categories. In the Holi Bardolai case the Supreme Court took into account the
grave nature of the offence and the planned nature of offence and hence classified it as a case of
rarest of rare cases.

In the case of Om Prakash, the Supreme Court held that the case did not fall under the category
of rarest of rare cases because there was a dispute going on between the accused and the
deceaseds family. In the case of Rajendra Rai the court converted the death penalty to life
imprisonment on the account that there was no pre-planned murder. In the Indira Gandhi
Assassination case, the death penalty was converted to life imprisonment on the account that the
accused was not the leader of the mob. In the case of Paltan Mallah, since the accused had
already spent 14 years in jail, the Supreme Court converted the death penalty to life
imprisonment. In the Sambhal Singhs case, since the accused was young and he committed the
offence under the moral influence of his father, the death penalty was converted to life
imprisonment. Old age was taken into account to convert death penalty to life imprisonment in
the case of Swamy Sharaddananda. Economic depravity was considered another reason for the
conversion of death penalty to life imprisonment in the case of Mulla &Anr. V. State of Uttar
Pradesh.

The researcher has tried to analyse various case laws where the death penalty was given or
converted to life imprisonment. The objective of the researcher to understand the research topic
has been fulfilled.

The author has following suggestions:

1. The death penalty should be abolished.

2. Life imprisonment is better than death penalty because the person can be

reformed but if death penalty is given the person cannot come back to life.

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 PERSONAL LIBERTY AND RAREST OF THE RARE CASE

3. Life imprisonment should be given instead of death penalty because if death

penalty is given the person cannot repent his crimes.

BIBLIOGRAPHY
STATUTE:
THE CONSTITUTION OF INDIA, 1950

BOOKS:
1. Bakshi P.M, The Constitution of India, ( Delhi, Published by Universal Publication
Edition 2002).
2. Shukla, Constituent Assembly Debate.
3. Shukla V.N, Constitution of India ( Lucknow, Published by Eastern Book Company,
Edition 2013).
4. Basu Durga Das, Shorter Constitution of India, ( New Delhi, Published by Wadhwa
and Company, Edition 13th).

ARTICLES:
Supreme Court Journal 2002 vol.1.

WEBSITES:
1. HTTP://www.manupatra.com
2. HTTP://www.scconline.com

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