Criminal LawMurder

Constitutionality of Death Sentence for Non-Homicidal Offence


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It is rare but death penalty can also be imposed for non-homicidal offence such as in case of conviction under section 121 and 376E of Indian Penal Code, and section 31A of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS).

In a research conducted by NLU-D it was found that 12 out of the 373 prisoners were sentenced to death for non-homicide offences i.e. for offences that did not result in the loss of human life. These prisoners were convicted in three cases. Eight prisoners from Karnataka were sentenced to death in the Bangalore Church Blasts case (June 2000) even though the blasts did not cause any loss of life. Section 121 of the IPC, under which they were sentenced, criminalises “waging, or attempting to wage war, or abetting waging of war, against the Government of India.” Three prisoners from Maharashtra were sentenced to death in the Shakti Mills gang-rape case under Section 376E of the IPC, which was introduced as part of the Criminal Law (Amendment) Act, 2013. These amendments were part of the Central Government’s response to the protests that broke out after the gang-rape in Delhi on 16 December 2012. The provision introduced the death penalty for the non-homicide offence of a repeat conviction for rape. The constitutionality of the provision is currently under challenge in the High Court of Bombay. One prisoner from Gujarat was sentenced to death under Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). This provision allows for the death penalty in instances of repeat conviction for certain offenses involving commercial quantity of any narcotic drugs or psychotropic substances.

In Santosh Kumar Bariyar v. State of Maharastra [(2009) 6 SCC 498] while sharing Supreme Court’s “unease and sense of disquiet” it was observed that “the balance sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to removed the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of ‘the rarest of the rare case” has been most variedly and inconsistently applied by the various high Courts as also this court.”

But unfortunately, even after landmark judgment in Santosh Bariyar case, it seems that in some cases the circumstances pertaining to the criminal (Criminal test) are still not given the importance they deserve. Rajendra Pralhadrao Wasnik v. State of Maharastra [(2012) 5 SCC 317] was a case of rape and murder of a three year old child in a vicious and brutal manner. The Supreme Court confirmed the sentence of death after taking into consideration the brutal nature of the crime (crime test) but not the circumstances of the criminal. Mohd. Mannan v. State of Bihar [(2011) 5 SCC 317] was a case of a brutal rape and murder of a seven year old girl. While confirming the sentence of death, the Supreme Court referred to the nature of the crime and the extreme indignation of the community. On that basis, it leaned towards awarding the death sentence and observed as follows;

            “when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence.”

In some other cases, aggravating circumstances pertaining to the criminal (not the crime) have been considered relevant. Reference may be made to two decisions rendered by the Supreme Court which, incidentally, seem to have overlooked the presumption of innocence.

The tests which have to apply, while awarding death sentence, are “crime test”, “criminal test”, and the R-R test. To award death sentence, the crime test has to be fully satisfied, that is 100% and the criminal test must be 0%, that is, no mitigating circumstances favouring the accused. If there is any circumstances favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc. The criminal test may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still the court need to apply the rarest of the rare test. R-R Test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crime or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and inform women with those disabilities etc.

The expression special reason under section 353 (3) CrPC, 1973 means exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as criminal.

Hence, sentence of death penalty in non-homicide offences is against the principle enshrined in Bachan Singh case while was later developed in Santosh Briyar. Such a highest sentence shall be avoided.


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