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IN THE HON’BLE HIGH COURT OF JUDICATURE

AT BOMBAY

WRIT JURISDICTION

W.P. No. _____/2015

(Under ……of the Statute of the ….)

1. MR. RAJU JADHAV

2. MR. IQUABAL HUSSAIN and

3. MR. MAHABOOB …PETITIONERS

V.

STATE OF MAHARASHTRA & Anr. ...RESPONDENTS

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TABLE OF CONTENTS

CONTENTS PAGE NOS.

LIST OF ABBREVIATIONS……………………………………………………………………2

INDEX OF AUTHORITIES………………………………………………………………….….3

STATEMENT OFJURISDICTION………………………………………………………………4

STATEMENT OF FACTS……………………………………………………………………….5

STATEMENT OF ISSUES……………………………………….…..…….……………………6

SUMMARY OF PLEADINGS…………………………………….……….……………………7

ARGUMENT ADVANCE………………………………………….……………………………8

ISSUE 1:………………………..……………………………………..………………………….8

ISSUE 2: ………….……………………………………………………..………………………10

PRAYER …………………………………………………………………..…………………….12

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LIST OF ABBREVIATIONS

ART --- Article

SEC --- Sections of any Act

IPC --- Indian Penal Code

HON’BLE --- Honorable

SC --- Supreme Court of India

CrPC --- Criminal Procedure Code

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INDEX OF AUTHORITIES

 Decisions and Judgments of Supreme Court & High Court

 Books :-

 Indian Penal Code – 1860

 Criminal Procedure Code – 1973

 Constitution Of India –

 Websites :-

 Manupatra – Law database on Case law, Judgments etc. at

http://www.manupatra.com/asp/home/asp.

 Indiakanoon – www.indiakanoon.org

 Cases Referred:

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STATEMENT OF JURISDICTION

The Petitioners has approached this Hon’ble Court under Article 226 of the Constitution of India.
With regard to the exigent circumstances of the matter, and challenging the Criminal Law
Amendment 2013, this Petitioners’ humbly submits to the jurisdiction of this Hon’ble Court.

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STATEMENT OF FACTS

1) A 22 year old photojournalist, Seema Viswas, interning with an English language

Magazine was in Pune for a Photoshoot.
2) On 22nd December 2014, she was at the Mahalaxmi Mills compound, near Mahalaxmi
Peth, Pune,+ she had gone on one assignment with a male colleague Prakash where she
was gang raped by five persons namely, Raju Jadhav (Age 18), Iquabal Hussain (Age
20), Sarforaj Khan (Age 24), Mahaboob (Age 27) and Sultan Pasha, a juvenile-In
Conflict with Law.
3) The accused took turns raping the photojournalist while holding a broken beer bottle to
her neck to keep her from shouting for help while the accused tied the victims colleague
with belts .
4) The rapist then forced the victim to clean the crime scene and took some photos of her on
a cell phone, threatening to release the photos on Social Networks if she reported the
incident to anybody.
5) She was then taken to Sasoon Hospital at Station Road, Pune by taxi .The victim was
bleeding profusely when she arrived at the Hospital. She was immediately admitted and
undergoing medical treatment.
6) Then F.I.R was filed against all the accused. The prompt and swift investigation took
place and charges were famed under section 120-
B,376(D),377,354(A)(iii),354(B),341,342,323,506(II),201 r/w 120-B,376(E) of I.P.C .
and section 67 of Information Technology Act,2000 r/w 120-B of I.P.C.
7) After trial on 27 January 2015, a Pune Session Court convicted all the accused on the
above charges. Following the conviction of the three repeat offenders (Raju Jadhav,
Iquabal Hussain and Mahaboob ), an application is moved from prosecution side to add
Charges against them u/s 376E of the I.P.C, which provides for the death sentence for
repeated rape convictions.
8) Thus court awarded death penalty to the three repeat offenders and other convicts were
sentenced to life imprisonment.
9) The above three repeat offenders move towards the Bombay High court and filed a writ
petition challenging the constitutional validity of section 376E of I.P.C.

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STATEMENT OF ISSUES

1) Whether death penalty violates any Fundamental rights of the constitution, and
whether it is valid to abolish death penalty in India?

2) Whether Sec 376E of the Indian Penal Code is ultra virus to the Constitution?

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STATEMENT OF PLEADINGS

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ARGUMENTS ADVANCED

ISSUE 1:
It is humbly submitted that Death penalty does not violate any of the articles of Constitution of
India. The crux of the whole issue is that each one of us has an inherent right to life and none of us
can divert any one of this precious right, and, if he does so, it has to be at the cost of his own life.
There are numerous legal luminaries who argue that the very fact that the death penalty is retained in
Indian criminal statutes runs counter to one's right to life. It is submitted that these learned jurists
probably over look the fact that even right to life is not an absolute right.

Constitutionality of capital punishment may be considered in respect of two aspects of the matter.
Firstly, the question is whether the capital punishment as such is unconstitutional and cannot be
awarded in any case whatsoever. In other words, the problem is whether capital punishment cannot
be awarded for any offence and by following any procedure at all. Secondly, the question is that even
though the capital punishment as such may not be unconstitutional, whether capital punishment as
provided in various sections of the Indian Penal Code is unconstitutional because the provisions of
the Indian Penal Code forwarding capital punishment, is violative of certain provisions of the
constitution.

These two aspects of the matter may have to be considered separately so as to have a clear vision on
the subject at issue.

(i) Constitutionality of capital punishment as such.

(ii) Constitutionality of the provisions of I.P.C. providing for capital punishment.

But before discussing these two issues, we discuss the cases in which constitutionality of the death
sentence was challenged.

In Jag Mohan Singh V. State of U.P.1, the validity of death sentence was challenged on the ground
that it was violative of Articles 19 and 21 because it did not provide any procedure. It was contended
that the procedure prescribed under Cr. P.C. was confined only to findings of guilt and not awarding
death sentence. The Supreme Court held that the choice of death sentence is done in accordance with
the procedure established by law. The judge makes the choice between capital sentence or
imprisonment of life on the basis of circumstances and facts and nature of crime brought on record
during trial. Accordingly a five member Bench of the court held that capital punishment was not
violative of Articles 14, 19 and 21 and was therefore constitutionally valid. After the decision of
Jagmohan's case the constitutional validity of death sentence was not open to doubt.

1. Jag Mohan Singh V State of U.P.

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In Bachan Singh V. State of Punjab2 the S.C. by majority overruled Rajendra Prasad's decision and
has held that the provisions of death penalty under section 302, I.P.C. as an alternative punishment
for murder is not violative of Article 21. Article 21 of the constitution recognises the right of the state
to deprive a person of his life or personal liberty in accordance with fair, just and reasonable
procedure established by valid law. In view of the constitutional provision by no stretch of
imagination it can be said that death penalty under section 302, I.P.C. either per se, or because of its
execution by hanging constitutes an unreasonable cruel or unusual punishment. The death penalty for
the offence of murder does not violate the basic feature of the constitution. The International
covenant of civil and political Rights to which India has become party in 1979 do not abolish
imposition of death penalty in all circumstances. All that it requires is, that (1) death penalty should
not be arbitrarily inflicted, (2) it should be imposed only for most serious crimes. Thus the
requirements of International Convenant is the same as the guarantees or prohibitions contained in
Articles 20 and 21 of our constitution. The Indian Penal Code prescribes death penalty as an
alternative punishment only for henious crimes. Indian Penal laws are thus entirely in accord with
international commitment.

Now, we shall discuss the two points so as to have a clear vision on the subject at issue: (i)
Constitutionality of capital punishment as (ii) Constitutionality of the provisions of I.P.C. providing
for capital punishment. (i) Constitutionality of Capital Punishment as such: The abolitionists contend
that the very concept of the death sentence is against the various provisions of the constitution. They
argue that Art. 19 of the constitution grants fundamental rights to various human freedoms. No doubt
reasonable restrictions may be imposed on these freedoms on various grounds in that article. The
crux of these grounds is that the restrictions on freedoms must be reasonable and must also be in
public interest. However the state is not empowered to take away all these freedoms in to. For
example the state may provide that the freedom of speech will be subject to the condition that no
citizen shall say anything which may be harmful to security of the state. But the state cannot order
that a citizen will not speak at all.

By awarding capital punishment to a citizen the state takes away all his freedoms granted under
Article 19 of the constitution and does not merely impose reasonable restrictions on them. On the
other, hand the Receptionists argue that by awarding capital punishment the state prevents citizens
from murder by destroying their freedoms which are granted to them under Article 19(a). The grant
of certain freedoms to citizen does not mean that any citizen may exercise them so as to destroy
similar freedoms of others. The object of awarding capital punishment is to regulate the freedom of
citizens in such a way that all may not remain confined to a few stronger citizens only. Moreover the
highest court of justice in this country has held in more than one case that reasonable restrictions may
extend even to total prohibition, if the facts and circumstances of a particular case so demand. It
follows that capital punishment as such is not unconstitutional being violative of Article 19 of the
constitution.

2. Bachan Singh V. State Of Punjab.

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The abolitionist further argue that Article 21 of the constitution guarantees the right to life. It imposes
a restriction on the state not to deprive a person of his right to life except according to procedure
established by law. Nothing is a good law which does not give effect to the fundamental values and
purposes of the constitution. Thus, they argue that the death sentence being not in keeping with the
constitutional values and purposes is violative of Article 21 of the constitution. Against this the
Receptionists argue that Article 21 instead of denoting that capital punishment is prohibited by the
constitution denotes that even life of a citizen may be taken away by the state under certain
circumstances but only according to the procedure established by law. It follows that subject to the
restrictions imposed by Article 21, capital punishment is constitutionally permissible. No doubt the
procedure referred to in Art. 21 must be fair, just and reasonable. But that does not follow that even
the capital punishment awarded according to the fair just and reasonable procedure prescribed by law
would be unconstitutional. Thus capital punishment is contemplated by Article 21 itself and there is
no question of its being unconstitutional in its entirety.

Besides countering the arguments of abolitionists about the unconstitutionality of capital punishment
on the ground of violation of Articles 19 and 21, the retentionists argue that Article 72, which confers
power on the President in pardon, remit, or commute a sentence of death contemplates capital
punishment. Similarly Article 161 of the constitution which confers similar powers on the Governor
of a state, also contemplates capital punishment. Thus Articles 21, 72 and 161 clearly indicate that
the founding fathers proceeded on the assumption that capital punishment as such is constitutional.

(iii) Constitutionality of the provisions of I.P.C. providing for capital punishment

Under the Indian Penal Code, there are provisions which provide capital punishment as alternative to
the punishment of imprisonment for life. The arguments given by the abolitionists against the
constitutionality of the provisions of I.P.C. providing for capital punishment covers only those
sections of the code where death sentence is an alternative sentence but do not cover cases when
death sentence is the only sentence provided for the" of death is violative of Article 14 of the
constitution because of the discrimination between the citizens as life imprisonment may be awarded
to some convicts while death sentence may be awarded to others. They argue that it is also violative
of Article 245 of the constitution by reason of excessive delegation of legislative powers to the
judiciary.

It shows that arbitrariness in the matter of choosing death sentence instead of imprisonment for life
which is awarded in other cases Against this the receptionists argue that alternative sentence of death
as provided in sections of the I.P.C. does not violate Article 14 or 245 of the constitution. They
argue that it is not possible for the legislature to provide for the exact quantum of sentence to be
awarded in different cases. In most of the sections of the I.P.C. the courts have been given ample
discretion in the matter of awarding actual sentence subject to the maximum laid down for a
particular offence by the legislature. The reason is obvious; the legislature can not foresee all the
facts and circumstances in which different offences may be committed. Therefore, sufficient
discretion must as of necessity be given to the courts in the matter of awarding sentence keeping in
view all the facts and circumstances of a given case. Moreover, the judges are by the very nature of
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their profession trained to decide cases objectively and not subjectively. It follows that the indecent
be no question of arbitrariness in the matter of awarding sentence in a given case. Moreover, S.
235(2) of the code of Criminal Procedure 1973 provides for a separate hearing on the question of
sentence after an accused has been convicted of an offence. This further obviates the fear of
arbitrariness in the matter of providing death sentence. Besides this S. 354(3) I.P.C. requires special
reasons to be given for awarding death sentence. In the very nature of things the judges would be
inclined to adopt the easy course of awarding imprisonment for life instead of taking the trouble of
giving special reasons for giving death sentence. Unless they find that the brutality and
gruesomeness of the accused demand that death sentence should be awarded to him. It follows that
death sentence will be awarded after due consideration and not arbitrarily.

The attitude of the Supreme Court of India towards death penalty has been considerably changed to
one of observing more lenience to the offender when his life is at peril. The court has to overcome
many fetters imposed by statutes. Thus, in Joseph Vs. State of Goa, Daman3 Justice V.C. Krishna
Iyer stated that judges are bound by the statutes by the oath of their office.

Now coming to the issue whether it is valid to abolish death penalty in India?

It is humbly submitted that abolishing death penalty is not valid on the grounds of being inhumane or
violating any of the article of the Constitution. The act of the offender is violating the fundamental
rights of the victim if the offender does not understand the value of life of others and harm them in an
inhumane manner then why there is a need to save such offenders who are threat to the society.

When Death penalty is awarded to the criminal there are few things that the court takes account of
these grounds are well stated.

Bachan Singh vs. State of Punjab4 was a landmark in the escalating debate on the question of the
compatibility of the death sentence with Art. 21 of the Constitution. The Supreme Court while
holding the validity of the death penalty expressed the opinion that a real and abiding concern for the
dignity of human life postulates resistance for taking a life through law's instrumentality. That ought
not to be done save in the rarest of rare cases, when the alternative option is unquestionably
foreclosed.However, the Court declined to formulate any aggravating or mitigating factors as it
would fetter judicial discretion, but held that a murder "diabolically conceived and cruelly executed"
may attract extreme penalty. It is not possible, the court opined, to feed numerous imponderable
circumstances in an imperfect and undulating society.

3.Joseph Vs. State of Goa, Daman.

4. Bachan Singh vs. State of Punjab.

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It was, however, in Machchi Singh vs. State of Punjab5, where four men were awarded death
sentence by the sessions court and the High Court for shooting down seventeen persons including
men, women and children within their homes at night, in five incidents. The motive was a family
feud. The Supreme Court upheld the death sentence of the three of the four persons. Justice Thakkar,
speaking for the court, was impelled to attempt a definition of the 'rarest of rare'case, thus :

1. When the murder is committed in any extremely brutal manner.

2. When the murder is committed for a motive which evinces total depratity and meanness.

3. Antisocial or socially abhorrent nature of the crime.

4. Crimes of normous proportion, like multiple murders.

5. Personality of victim of murder eg. an innocent child or a helpless woman.

Now coming to the point whether death penalty should be abolished or no ?

It is humbly submitted that Death penalty should not be abolished because if it is abolished the
maximum sentence for any crime would be life imprisonment, that extends to sometime 14 years
sometime 20 years and sometime for the rest of the offenders life .the argument is, if these offenders
are given life imprisonment for a limited period of time then there are chances that they may after
getting released commit another crime or the same crime and get the punishment of the same period
.There would be no fear in the minds of the people and no one in the society will fear the law and
order. Therefore deterrent theory is best to be followed to reduce the crimes as nobody will conduct
any such act that would ultimately risk his life.

Deterrence has been defined by Dr. Johnson as discouraging the offender by terror or naked fear
from repeating his crime and at the same time preventing others from following his path. It must,
however, be remembered that deterrence is a relative term, its seriousness depending on the category
of the offender. The stigma attached to arrest, trial, conviction and sentence may have little effect on
habitual offenders or hardened criminals but may act as a powerful deterrent to an average law
abiding citizen. Undoubtedly, of all the punishments, death penalty appears to be strongest deterrent
for their can be nothing for which a man will be willing to give away his life.

The following are the reasons why death penalty is important.

1. Capital punishment acts as a deterrent. If the death sentence is removed, the feat that comes
in the mind of people committing murders will be removed. “Do we want more of murders in
our country or do we want less of them?” All sentences are awarded for security and
protection of society, so that every individual may live in peace. Capital punishment is
needed to ensure this security.

5. Michhi Singh V. State of Punjab.

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2. Elimination of the criminals. When the public peace is endangered by certain particularly
dangerous forms of crime, death penalty is the only means of eliminating the offender.

3. Possibility of repeated murders. Society must be protected from the risk of a second offence by
a criminal who is not executed and who may be released, after release may commit murder again.

4. Condition in India. In countries where capital punishment has been abolished, the figure of
homicide is very low; four in a million, or even less than that.

5. Public opinion. Public opinion is substantially in favor of capital punishment, and it would be
unwise to abolish capital punishment contrary to the wishes of the majority of the citizens.

6. Prison administration. Keeping murderers alive in the prison greatly complicates the work
of prison administration. If all convicted murderers were imprisoned, safety of the prison staff and
the general public from the dangerous prisoners would be at risk.

7. Saving of funds. Money of the citizens should not be spent on maintaining people who cause
great harm. The taxpayers should not be called upon to pay for the maintenance of anti-social
criminals for an indefinite or for a very long period.

8. Proportionate to crime. The punishment should bear a just proportion to the crime. Therefore,
capital punishment is the only fit punishment for those who have deliberately violated the sanctity of
human life.

9. More humane. Capital punishment in a painless and humane form is less cruel than
imprisonment for life.

10. No miscarriage of justice. If there is miscarriage of justice in one or two cases, the higher courts
can be approached. The whole machinery of the Government would be there to protect the life of a
person who is really innocent.

The law commission strongly felt that capital punishment acts as an effective, deterrent “which is the
most important object and even if all objects were to be kept aside, this object would by itself furnish
a rational basis for its retention” in its concluding remarks, the commission observed that “Having
regard, however, to the conditions in India, to the variety of social upbringing of its inhabitant, to the
disparity n the level of morality and education in the country, to the vastness of its area, to the

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diversity of its population and to the paramount need for maintaining law and order in the country at
the present juncture, India cannot risk the experiment of abolition of capital punishment.”

A killer who is a perpetrator of other’s right to live can’t claim to have an inviolable right to live.
The focus should be on the mischief flowing from what the criminal has done to his victim and those
near and dear to him and greater attention be paid to victim logy and therefore to the retributive
aspect of punishment. The abolitionist needs to shift their focus from criminal to victim, as a killer is
a proven enemy of society. The demand of abolition of death penalty is a demand in wrong direction
and represents a trend reversal when society is considering the issue whether mercy killing be
accepted or not. Death penalty to a killer is a sort of mercy to an ailing society, which wants to get rid
of its enemy. The process of reformation of criminals with an unascertained record would entail a
great risk as a sizable number of criminals instead of being reformed may be encouraged to commit
offences after offences and become a serious and horrendous hazard to the society. The question,
therefore, is--should the country take the risk of innocent lives being lost at the hands of criminals
committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal,
however dangerous or callous he may be, will reform himself, Valmikis are not born every day and
to expect that our present generation, with the prevailing social and economic environment, would
produce Valmikis day after day is to hope for the impossible.

Only penalty of death will provide maximum deterrence. No other punishment deters men so
effectually from committing crimes, as the punishment of death. Death is death; its terrors cannot be
described more forcibly. Prima Facie, the penalty of death is likely to have a stronger effect as a
deterrent to normal human behaviour than any other form of punishment, though it is difficult to
unravel the innermost recesses of the minds of potential murderers. The truth is that some crimes are
so outrageous that society insists on adequate punishment, because the wrongdoer deserves it,
irrespective of whether it is a deterrent or not. If accepted that death penalty have no deterrent effect
then it will be most illogical and irrational to ask for continuances of a scheme of penalties for lesser
offences against society.

The court in Bachan Singh V.State6 of Punjab observed;

“The question whether or not death penalty serves any penological purpose is a difficult, complex
and intricate issue. It has been evoked the strong divergent dues notwithstanding the view of
abolitionists to the contrary, a very large segment of people, the world over, including sociologist,
jurist, judges and administrators still firmly believe in the worth and necessity of capital punishment
for the protection of society”.

6. Bachan Singh V. State of Punjab.

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ISSUE 2:
It is humbly submitted that, sec 376E of the I.P.C is constitutionally valid.

Sec 376E under the criminal amendment Act 20137 states that

“Whoever has been previously convicted of an offence punishable under section 376 or section
376A1 or section 376D2 and is subsequently convicted of an offence punishable under any of the
said sections shall be punished with imprisonment for life which shall mean imprisonment for the
remainder of that person's natural life, or with death.”

It is pertinent to note the second part of the Sec states that the repeat offenders shall be
punished with imprisonment for life which shall mean imprisonment for the remainder of
life of that person's natural life, or with death. The term or is been used which means it is
not mandatory to give death penalty to repeat offenders. Judgements which has been
provided on such issues depends upon the brutal nature of the crimes, intention of the
criminal, circumstantial evidences and heinous nature of crimes.
The section renders two kinds of punishment, Firstly, imprisonment for life and
Secondly, with death. Imprisonment for life does not violate any of the fundamental
rights of the Constitution of India and therefore does not brings the question of
constitutional validity in this regards. The second kind of punishment awarded under this
section is death penalty which is not ultra virus to the constitution.
It is humbly submitted that the Apex court in Mithu V. State of Punjab7 distinguished Sec
302 of I.P.C from Sec 303 and pointed as to how Sec 302 is constitutionally valid
whereas Sec 303 is not.Sec 302 I.P.C is Constitutionally valid for three main reasons.
 Death sentence provided for in Sec 302 is an alternative to the sentence of life
imprisonment whereas under Sec 303 death sentence is provided as a mandatory
punishment without any alternative sentence.
 Where departing from the normal rule of imposing life imprisonment and holding
that death sentence alone is considered to be the proper punishment, special
reasons are to be stated as required under Sec 354(3) of Cr.P.C.this is possible
only in case of Sec 302 of I.P.C but not in case of Sec 303.

7. Mithu V. State of Punjab

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 Under Sec 235(2) of Cr.P.C, the accused is entitled to be heard on the question of
sentence. This applies to Sec 302 but has no application to Sec 303 of I.P.C.
Similarly, Sec 376E provides an alternative to death sentence and is not mandatory to
give capital punishment. Where departing from the normal rule of imposing life
imprisonment and holding that death sentence alone is considered to be the proper
punishment, special reasons are to be stated as required under Sec 354(3) of Cr.P.C.this is
possible not only in case of Sec 302 but also in case of Sec 376E as it is stated in Sec
354(3) of the Cr.P.C;"When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded, and, in the case of sentence of death, the
special reasons for such sentence." And Sec 235(2) of the Cr.P.C states that, “If the accused
is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass sentence on him according to law.”
This Sec is applicable to Sec 302 as well as Sec 376E of the I.P.C.
Therefore, Sec 376E is not unconstitutional.
It is pertinent to note that, Sec 376A of the I.P.C also provides an alternative between
imprisonment for life or death according to the gravity of the offence. Similarly, under Sec
376E of the I.P.C the punishment to be provided should be according to the gravity of
offence.
Sir James Fitziamef Stephen, a great jurist, who was concerned with the drafting of I.P.C
very important to mention-"No other punishment deters man so effectually from committing
crimes as the punishment of death. This one of those propositions which is difficult to prove
simply because they are in themselves more obvious than any proof can make them. In any
secondary punishment, however terrible, there is hope, but death is death, it is terrors cannot
be described more forcibly."
The theory of deterrent punishment draws its inspiration from the hedonistic philosophy of
Beccaria’s classical school of criminology. A rigorous and maximum punishment as against a
moderate and lesser punishment helps to prevent the commission of a crime. For the incorrigibles
and habitual and hardened criminals death penalty is best suited and it is the only method teaching
hardened criminals. The incorrigible and hardened criminal as a rotten limb of the society must be
eliminated. The prevalence of recidivism offers a serious stumbling block to a too ready acceptance
of the idea of readily achieved reformation. The recidivist becomes the criminal who after having
experienced rehabilitation treatment returns to crime and ultimately to prison again to be rehabilitated
further. Making murder a safer proposition, a less deadly proposition for the killer will have a hostile
effect on society. The capital punishment is an effective tool to curve the grave wrong act such

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as of killing and it can also be instrumental in preventing society from becoming ever more
imperfect than it need be.

Capital punishment is a Deterrent kind of punishment. As per the theory of punishments we are
providing such a serious punishment to the hard core criminals with reference to the offences which
are heinous and serious in nature. In order to deter the people to commit such crime in future and also
to set an example for the society that if somebody will commit such kind of offence then he will be
punished severely. There are number of offences in which deterrent type of punishment is provided
considering the gravity of offence.

constitutional validity.It is humbly submitted that In Bachan Singh V. State of Punjab8 the S.C. by
majority overruled Rajendra Prasad's decision and has held that the provisions of death penalty under
section 302, I.P.C. as an alternative punishment for murder is not violative of Article 21. Article 21
of the constitution recognizes the right of the state to deprive a person of his life or personal liberty in
accordance with fair, just and reasonable procedure established by valid law. In view of the
constitutional provision by no stretch of imagination it can be said that death penalty under section
302, I.P.C. either per se, or because of its execution by hanging constitutes an unreasonable cruel or
unusual punishment. The death penalty for the offence of murder does not violate the basic feature of
the constitution. The International covenant on civil and political Rights to which India has become
party in 1979 do not abolish imposition of death penalty in all circumstances. All that it requires is
that,

(1) Death penalty should not be arbitrarily inflicted;

(2) It should be imposed only for most serious crimes.

Thus the requirements of International Covenant are the same as the guarantees or prohibitions
contained in Articles 20 and 21 of our constitution. The Indian Penal Code prescribes death penalty
as an alternative punishment only for heinous crimes. Indian Penal laws are thus entirely in accord
with international commitment.

Jumman Khan vs. State of U.P.9 is a case of cardinal importance in the domain of capital punishment.
The case is important mainly for three reasons: Firstly, it illustrates the strict application of the
doctrine "rarest of rare cases". Secondly, the constitutional effect of inordinate delay in the execution
of death penalty is more clearly explained. Thirdly, it removes the clouds of doubts with regard to
the constitutionality of the death penalty. The facts of the case assume importance as the case was
brought within the category of rarest of rare cases. Jumman Khan, the petitioner, went at the house of
his neighbourer Ausaf Khan on 22.6.1983 at around 4 P.M. He requested Ausaf Khan's wife to send
her daughter, Sakina aged about 7 years with him for bringing ice from the market. Later on, the dead
body of Sakina was recovered from the house of the petitioner. The postmortem report revealed that
she had been raped and strangulated to death. The trial court sentenced him to life imprisonment
under section 376 I.P.C. and to death under section 302 I.P.C.

8. Bachan Singh V. State of Punjab.

9. Jumman Khan V. State of U.P

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Thus, the conviction entirely rested upon strong circumstantial evidence. On appeal, the High Court
also confirmed the conviction and sentenced him on the ground that the accused did not deserve to
any leniency for committing the most gruesome and beastly act. His special leave petition was also
rejected by the Supreme Court on the ground that it was a crime against the society. The murder was
committed with extreme brutality. While dismissing the SLP, the Court observed : The only
punishment which the appellant deserves for having committed the reprehensible and gruesome
murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity
and also as a means of detering other potential offenders.

The Court also referred to Sher Singh V. State of Punjab10 and pointed out that: Not even a single
decision of this Court which has caused the slightest shadow of doubt on the constitutionality of
capital punishment was brought to our notice. Justice Pandian speaking for the Court asserted that on
every occasion, it has been asserted affirmatively that "the constitution does not prohibit the death
penalty"

The Court even pointed out that in Bachan Singh case11, it has been held that death penalty did not
violate Articles 14 and 21 of the constitution. In Triveni Ben V. State of Gujrat12 the constitutionality
of death penalty was re-affirmed by the court and in Allauddin Mian V. State of Bihar13, it was held
that death penalty should be awarded only if there were special reasons for doing so. After Sher
Singh, Bachan Singh and Allauddin, the Court in Jumman Khan V. State of U.P, held that "the death
sentence is constitutionally valid"

In the case of Jagmohan V/s State of U.P14. the question of constitutional validity of death
punishment was challenged before the SC, it was argued that the right to live was basic to freedom
guaranteed under Article 19 of the constitution. The S.C. rejected the contention and held that death
sentence cannot be regarded as unreasonable per se or not in the public interest and hence could not
be said to be violative of Article 19 of the constitution.

In Bachan singh V. State of Punjab15 case it was categorically opined by the Apex court ..it is not
possible to held that the provision of death penalty as an alternative punishment for murder, in sec.
302, Penal Code is unreasonable and not in the public interest. The impugned provision in Sec. 302 ,
violates neither the letter nor the ethos of Article 19" .Sarkaria J. delivered the judgment for majority
discussed all these issues at length, and the SC, with the majority of 4:1 rejected the challenges to the
constitutionality of sec.302 I.P.C.

10. Sher Singh V State of Punjab

11. Bachan Singh case
12. Triveni Ben V. State of Gujrat
13. Allauddin Mian V. State of Bihar
14. Jagmohan V/s State of U.P
15.Bachan singh V. State of Punjab.

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Measurement of punishmentIn Bachan singh V. State of Punjab16 the court observed “in our opinion,
the measure of punishment in a given case must depend upon the atrocity 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 court responds to the society’s cry for justice against the
criminals. Justice demand that courts should impose punishment befitting the crime so that the court
reflects public abhorrence of the crime. The court 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.”
Supreme Court in Dhananjoy Chatterjee v. State of W.B.17 held that the measure of punishment in a
given case must depend upon the atrocity of the crime; the conduct of the criminal and the
defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner
in which the courts respond to the society's cry for justice against the criminals. Justice demands that
courts should impose punishment fitting to 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.The
philosophy behind the aforesaid tests was also explained in Macchi Singh V State of Punjab18: every
member of the community is able to live his/her life because of the protection afforded by the
community and rule of law. But, when one member of the community shows ‘ingratitude’ to the
community by killing a fellow member of the community or when the community feels that its very
existence is under threat, then for the purposes of self-preservation, the community withdraws its
protection. This withdrawal of protection results in imposition of death penalty. The court further
elaborated that the community will only do so – “in rarest of rare cases’ when its collective
conscience is so shocked that it will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death
penalty.”

The ‘rarest of rare’ doctrine has been intrinsically linked with the need to mandatorily give ‘special
reasons’ before imposing a penalty as specified under Section 354 (1) of the Cr. P.C. Bachhan Singh
V. State of Punjab19 has clarified the law by saying that ‘special reasons’ implies ‘exceptional
reasons’ We also notice that punishment with death is given only in the rarest of rare cases when the
alternative option of reformation and rehabilitation of the convict is unquestionably foreclosed .The
supreme court in Ram Deo Chauhan and another V. State of Assam20 observed that, “it is true that in
a civilized society a tooth for toot, and a nail for nail or death for death is not the rule but it is equally
true that when a man becomes a beast and menace to the society, he established by law, as
Constitution itself has recognized the death sentence as a permissible punishment.”

16. Bachan singh V. State of Punjab

17. Dhananjoy Chatterjee v. State of W.B.

18. Macchi Singh V State of Punjab

19. Bachan singh V. State of Punjab

20.Ram Deo Chauhan and another V. State of Assam

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Rape offences.
Rape isn't just a crime, it is a horrendous human rights violation, that leaves permanent scars and
damage on the victim, sometimes pushing that person towards suicide. So rapists must not be
treated like humans, since their act is definitely inhuman to the core.

In my opinion capital punishment can atleast create fear in the minds of a rapist. With
widespread talks of banning capital punishments for such crimes will only act to promote rape
intentions, with no fear to keep them at bay.Though capital punishment may not be able to
completely eradicate rapes but it surely can play its part in reducing such cases. The other thing
which boggles me is that why would anyone like to keep such people alive in jails(life
imprisonment) and let the common people bear their burden. A person who has committed such
crime should get no excuse and doesn't deserve a second chance. Rape is a disrespect to
humanity and rapists a disgrace to the society who should be eliminated for the good of others

Even for the sake of argument if it is accepted that capital punishment has no deterrence then it
means that criminal is not afraid of death and it will be difficult for the state to keep such a person in
prison after all it is the fear of death that keeps a criminal in jail. After all criminal facing life
imprisonment need a single chance to set himself free for taking a revenge from adverse witnesses
and the prosecution who according to him were responsible for sending him to jail. Judge may also
become the victim of his anger. As there is a saying so long as there is life, there is scope for
irrepressible hope and hope for a break for freedom. A prisoner serving life imprisonment can go on
a killing spree and there can be no further punishment from the punishment he is already facing. One
important question that arises is shall we sacrifice the lives of future victims in order to spare the life
of a murderer. Argument that goes against death penalty is that the societies do not have the right to
take anyone’s life since it cannot give life then why to kill soldiers of enemy, terrorist. One may say
what is the need of providing arms to security forces if no human being can be deprived of his/her
life whatever may be the circumstances. Prima Facie, the penalty of death is likely to have a stronger
effect as a deterrent to normal human behavior than any other form of punishment.

In our tradition bound society, structured on the basis of conservative values, when a woman is
subjected to sexual assault in any form, it translates into a multiple crime. She is raped at home
(literally and figuratively) and in public, followed by demeaning medical examination, examination
and cross-examination by the police and in court, in salacious media reports, and in the insensitive
response of society, including family and acquaintances. In sum, the victim suffers intermittent rape
in full public glare.

Undoubtedly, rape deserves serious punishment. It is a highly reprehensible crime in the moral
sense, and demonstrates a total contempt for the personal integrity and autonomy of the victim.
Short of homicide, it is the “ultimate violation of self.” It is also a violent crime because it normally
involves force or the threat of force or intimidation to overcome the will and the capacity of the
victim to resist. Rape is very often accompanied by physical injury to the victim and can also inflict
mental and psychological damage. We have no doubt that it undermines the communicating sense of
security and there is public injury.

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A fortiori , the duty of the State, therefore, is to provide a safe environment, at all times, for women,
who constitute half the nation’s population; and failure in discharging this public duty renders it
accountable for the lapse. The State’s role is not merely reactive to apprehend and punish the culprits
for their crimes; its duty is also to prevent the commission of any crime to the best of its ability.
Crimes against women are an egregious violation of several human rights demanding strict
punishment with deterrence to prevent similar crimes in future by the likeminded.

In Mahesh v. State of M. P.21 , the Supreme Court observed that: “It will be a mockery of justice to
permit these appellants [the accused] to escape the extreme penalty of law when faced with such
evidence and such cruel acts. To give the lesser punishment for the accused would be to render the
justicing system of this country suspect. The common man will lose faith in courts. In such cases, he
understands and appreciates the language of deterrence more than the reformative jargon”.

Sevaka Perumal v. State of T.N.22, is also in the same vein: “Therefore, 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 serious threats. If the courts did not
protect the injured, the injured would then resort to private vengeance. 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.”

Dhananjoy Chatterjee v. State of W.B.23 the Supreme Court opined that: “…shockingly large
number of criminals go unpunished thereby increasingly encouraging the criminals and in the
ultimate, making justice suffer by weakening the system's creditability. The imposition of appropriate
punishment is the manner in which the court responds to the society's cry for justice against the
criminal. Justice demands that courts should impose punishment befitting the crime so that the courts
reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal
but also the rights of the victim of the crime and the society at large while considering the imposition
of appropriate punishment”.

Then, in Ravji v. State of Rajasthan24, the Supreme Court observed that: “It has been held in the
said case that it is the nature and gravity of the crime but not the criminal, which are germane for
consideration of appropriate punishment in a criminal trial. 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”. If for extremely heinous crime of murder perpetrated in a very brutal manner without
any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose
its relevance.”
21. Mahesh V. State of M. P.
22. Sevaka Perumal v. State of T.N.
23. Dhananjoy Chatterjee v. State of W.B.
24. Ravji v. State of Rajasthan

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Y death penalty

In Jagmohan's case71, the Supreme Court has held that the sentencing indiscretion is to be exercised
judicially on "well recognised principles" after balancing all the aggravating and mitigating
circumstances of the crime. By "Well recognised principles", the court meant the principles
crystallised by judicial decisions, illustrating as to what are regarded as aggravating or mitigating
circumstances. However, an exhaustive enumeration of aggravating or mitigating circumstances is
not possible because every case has its own facts and circumstances and we can hardly find two cases
having same facts and circumstances Standardisation, thus, is impossible. Moreover, it may tend to
defeat the very purpose of sentence and may produce opposite results too. So the exercise of judicial
discretion on well recognised principles seems to be the safest possible safeguard for the accused.
However, no doubt it is a greater liability upon a judge, while dealing with the question of death
penalty, to ponder over the case from all angles. He must take into consideration the nature of the
offence, the circumstances of the crime, the degree of deliberation, the age, sex, character, education,
family life and the antecedants of the criminal, and whether the accused is first offender or a habitual
or a professional criminal, availability of different sentences i.e. alternative punishments and if all
these things are taken into consideration then expect that a reasonable decision will come out.

Circumstantial evidence.

In Ram Bharosey V. State of U.P and In Kutuhal Yadav V. State of Bihar, The Court held that "the
circumstancial evidence, therefore, was sufficient to hold the accused responsible for murder of the
deceased and the accused was rightly convicted of the offence under sec. 302 IPC and sentenced to
death."

Repeat offenders.

in Kanta Tiwari vs. State of M.P. the deceased was an innocent, helpless girl of 7 years of age, was
kidnapped by the appellant, to whom she called her uncle. She was raped, strangulated to death and the
dead body was thrown into a well. Holding the facts & circumstances, rarest of rare, the Supreme Court
held that death sentence is eminently desirable not only to deter others from committing such
attrocious crime but also to give emphatic expression to society's abhorrence of such crime.

In Shankaria V. State of Rajasthan he was accused for commission of a large number of crimes involving
murders and attempted murders in certain areas of the state of Rajasthan, adjoining Haryana and
Punjab. He made a clear confession of his guilt, the accused was convicted for double murder on the
basis of his confessional statement, which was retracted by him at the trial and on the basis of other
circumstancial evidence, the crime was proved to be committed by him in a most brutal and dastardly
fashion. The court sentenced him to death, the High Court and Supreme Court dismissed the appeals
and confirmed the Death Sentence. The Supreme Court observed "The grisly and gruesome nature of
the murders, hapless and helpless state of the victims, the fiendish Modus operandi, of the accused
killer (appellant) to kill and then steal, eat, smoke, and bathe himself mindless of the spectra of the slain
and the groans and gasps of the dying, betrays an extreme depravity of character.

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In Nirmal Singh v. Slate of Haryana, recently the accused Dharmpal was charged in earlier case for rape.
In the said proceedings he had given a threat that if anybody gives evidence in the proceeding then he
will not be spared. Notwithstanding the threat the victim disposed in the court and ultimately he (the
accused) was convicted. The accused preferred appeal against conviction. While he was released on bail
during pendency of appeal, he along with his brother attacked the family members of the victim and
caused death to all five members by inflicting brutal and merciless axe blows. Deciding the matter, the
Supreme Court held that such circumstance is rarest of rare cases and confirmed the death sentence.

Relate it to the present case.

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PRAYER

“In the light of issues arguments advanced and authorities cited. It is humbly prayed before this
honable court that it may be pleased to:

 .

For which act of kindness, the respondent shall as in duty bound, even pray” .

Respectfully Submitted

(on behalf of the Respondent)

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