• Legis Scriptor

Circumstances wherein Death Punishment can be awarded by Court

Authored By- Munis Nasir

Keywords- Rarest of the rare, heinous crimes


Arguments can be made both in favour and against the death punishment in India. Previously death punishments have been given to the accused charged with heinous crimes. ‘Rarest of the rare’ doctrine emerged from the Bachan Singh case is the doctrine to qualify accused for the death punishments in India.


Arguments are made both in favour and also against death punishment as a form of punishment in India. According to one view death punishment is morally excluded while the other view states that it is a moral necessity. Hanging and shooting are referred as the two methods of the death penalty in India. The Criminal Procedure Code, section 354(5) reads as “When any person is sentenced to death, the sentence shall direct that he be hanged by neck till he is dead”.

Some of the famous cases regarding the death punishment were of hanging of Yaqub Menon in 2015; Muhammad Afzal who was convicted for planning an attack on Parliament was hanged on 8 February 2013. Further, in the 2008 Mumbai terror attack case, Mohammad Ajmal Qasab was hanged on 21 November 2012. Earlier, Dhananjay Chatterjee who was charged and convicted with the murder and rape of a 14-year-old girl was hanged on 14 August 2004.

Crimes for which Death Punishment is used

Death Punishment in India is usually given for heinous crimes like murder, offenses resulting in death, crimes related to terrorism resulting in death or not death, rape, kidnapping etc.

The judgment in the Bachan Singh v. State of Punjab[1] plays a crucial role in determining whether a case deserves death punishment or not. The Supreme Court in Bachan Singh, where the court was moved by compassionate human feelings and ruled that sentence of death should not be passed except in the rarest of the rare cases. The aggravating circumstances which justify the award of death penalty are:

(a) If the murder has been committed after previous planning and involves extreme brutality; or

(b) If the murder involves exceptional depravity; or

(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –

(i) While such member or public servant was on duty; or

(ii) In consequence of anything done or attempted to be done by such member or public servant as the case may be, or has ceased to be such member or public servant; or

(d) If the murder is of a person who acted in the lawful discharge of his duty under section 43 CrPC[2], 1973, or who had rendered assistance to a magistrate or a police officer demanding his aid or requesting his assistance under sections 37 and 129 of the Code.

In Machhi Singh v. State of Punjab[3], the Supreme Court has held some relevant considerations of a crime to justify the death penalty. The relevant considerations are:

1. Manner of commission of murder: When the murder is committed in an extremely brutal, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

2. The motive for commission of murder: When the murder is committed for a motive which evinces total depravity and meanness.

3. Anti-Social or Socially abhorrent nature of the crime: When the murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. In cases of ‘bride burning’ and what are known as ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

4. Magnitude of Crime: When the crime is enormous in proportion.

5. Personality of Victim of Murder: When the victim of murder is an innocent child or a helpless woman or a person rendered helpless by old age or when victim whom murderer is in a position of domination or trust or when victim is a public figure and the murder is committed for political or similar reasons.

Is Death penalty Constitutional?

In Jagmohan Singh v. State of U.P.,[4] it was questioned whether death punishment was unconstitutional and hence irrelevant mode of punishment. It was contended that freedoms guaranteed under Article 19 of the Constitution cannot be co-extensive with the Legislature authorizing the death punishment as a restriction on fundamental freedoms. Further, it was contended that since the courts have unguided discretion to impose the death penalty for the offence of murder, it violated the equal protection clause embodied in Article 14 of the Constitution. Hence, the protection given in Article 21 of the Constitution was also violated. The Supreme Court did not agree upon any of the contentions and held that death penalty as valid with the procedure established under Article 21.

In Mithu v. State of Punjab[5], the legality of section 303[6] IPC was questioned. The majority opinion in the case was that it violates the right embodied in Article 14 and 21 of the Constitution. The Supreme Court ruled out that mandatory death punishment is unconstitutional and declared Section 303 IPC as void.


Therefore death punishment appeals to be more dangerous and effective than life imprisonment. This is to say, as people fear Death than the imprisonment. From time to time the Supreme Court has laid down certain grounds to qualify for death punishment. Lastly, death punishment is not a mandatory punishment.

[1] AIR 1980 SC 898 [2] Arrest by private person and procedure on such arrest [3] 1983 AIR 957 [4] 1973 AIR 947 SCR (2) 541 [5] 1983 AIR 473 SCR (2) 690 [6]Punishment for murder by life convict