Essay on Offences Punishable with death sentence under Indian Penal Code !
It would be pertinent to refer to the relevant provisions of the Indian Penal Code which provide for death sentence for certain specified offences. These offences are:
1. Waging war against the Government.
2. Abetment of mutiny.
3. Giving or fabricating false evidence leading to procure one’s conviction for capital offence.
5. Abetment of suicide by child or insane person.
6. Attempt to murder by a life convict, if hurt is caused;
7. Dacoity with murder.
8. Kidnapping for ransom etc.
Until 1983, death sentence was mandatory only in one case namely, for murder committed by a person while he is already undergoing a sentence for life imprisonment. For other offences, the Penal Code did not make it obligatory for the courts to award death penalty and they were free to punish the offender with an alternative sentence.
But the decision of the Supreme Court delivered on 7th April, 1983 disposing of writ petition filed by Mithu and others challenging the constitutional validity of Section 303 of IPC on the ground that it violated Articles 14 and 21 of the Constitution, the five Judges Constitution Bench presided over by Chief Justice Y. V. Chandrachud (as he was then) observed that Section 303, I.P.C. is unconstitutional and there shall be no mandatory sentence of death for the offence of murder by lifer. In other words, hereinafter all murder cases would fall under Section 302 which provides punishment for murder.
Delivering the judgment on behalf of JJ. Murtaza Fazal Ali, V. D. Tultzapurkar, Varadarajan and himself (Mr. Justice Chinnappa Reddy delivered a separate but concurring judgment), Justice Chandrechud (CJ) ruled that Section 303, IPC violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution.
The Apex Court in this case i.e., Mithu v. State of Punjab, distinguished Section 302 of IPC from Section 303 and pointed out as to how Section 302 is constitutionally valid whereas Section 303 is not. Section 302 IPC is constitutionally valid for three main reasons—
(1) Death sentence provided for in Section 302 is an alternative to the sentence of life imprisonment whereas under Section 303 death sentence is provided as a mandatory punishment without any alternative sentence.
(2) 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 Section 354 (3) of Cr. P.C. This is possible only in case of Section 302 of IPC but not in the case of Section 303.
(3) Under Section 235(2) of Cr. P.C., the accused is entitled to be heard on the question of sentence. This applies to Section 302 but has no application to Section 303 of IPC.
The Supreme Court noted that Indian Penal Code contained in all fifty-one sections which prescribe life imprisonment for various offences. The basic difference between Section 302 and the other sections is that under those sections, life imprisonment is the maximum penalty which can be imposed whereas under Section 302, it is the minimum sentence which has to be imposed. The Court, however, made it clear that the ruling in Bachan Singh v. State of Punjab upholding the constitutional validity of death sentence could not govern death penalty prescribed in Section 303 of the Indian Penal Code.
Referring to Section 235(2) of the Code of Criminal Procedure, 1973 in context of Section 303 I.P.C., the Supreme Court held that if the court itself has no option to pass any sentence except the sentence of death, it is an idle formality to ask the accused as to what he has to say on the question of sentence.
The Court further observed, “For us law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead”.
It must be stated that Section 307 (Part II) of I.P.C. provides mandatory capital punishment for an offence of attempt to murder by a life-convict if hurt is caused, and deprives judicial discretion in such cases. The object of this provision is two-fold, namely, to provide protection to the prison personnel; and to deter the prisoners.
An analysis of these provisions of the Penal Code further reveals that there are valid reasons for allowing wider judicial discretion in cases of offences other than those falling under Section 303. To elaborate this point further, it would be convenient to classify the aforesaid eight offences into three broad categories, namely:—
(a) Offences against the Government (these include offences under Section 121 or 132, I.P.C.);
(b) Offences against lawful justice (Section 194); and
(c) Offences against persons (Sections 302, 333, 305, 307, 364A and 396, I.P.C.).
As regards offences against the Government, it is suggested that death penalty would hardly serve any purpose. For example, if a person believes that there is no way out to prevent exploitation of the poor at the hands of capitalist government unless the Government itself is thrown out of power and commits an offence under Section 121 or 132 of the Indian Penal Code, he does not really want to kill persons.
Therefore, there is no criminal intent or mens rea to commit murders in the instant case. On the contrary, his act is in fact directed towards a noble cause inasmuch as it is designed to render some service to the poorer section of the community. Obviously, death sentence would hardly serve any useful purpose in such cases.
In fact, such persons are generally intellectuals who are prepared to sacrifice their life for the cause of nation. May be that due to ideological differences with the party in power, they might wage a war against the government in power. The activities of Maoists, naxalites etc. are directed towards this end.
Likewise, in cases of offences against justice or against persons, the criminal act might have been the result of peculiar mental attitude of the offender and therefore, capital punishment would not be a fitting punishment in these cases also. In result, death penalty seems to be justified only in cases of hardened criminals and incorrigibles who are habituals and commit deliberate murders in a well planned manner and have scant regard for law, society or other’s life.