Death Penalty

What is Capital Punishment?

Capital Punishment is also referred as death penalty in India. It is the highest degree of punishment that can be awarded to an individual under any penal law in any part of the world. The execution of an offender sentenced to death after conviction of a criminal offence by a court of law. A man once executed for a crime can never be brought back to life. So if any error has crept in while deciding on a matter, this error cannot be rectified at a later stage.

Evolution of the Capital Punishment in India

India retained the 1861 Penal Code in 1947 at independence, which provided for the death penalty for murder. The idea of abolishing the death penalty was expressed by several members of the Constituent Assembly during the drafting of the Indian Constitution, but no such provision was incorporated. In the next two decades, private members bills were introduced to abolish the death penalty in both the Houses of Parliament, but none of them were adopted. It was estimated that between 1950-1980, there were 3000 to 4000 executions. It is estimated that between 1980 and the mid-1990s two or three people were hanged annually. On Bachan Singh judgment in 1980, the Supreme Court declared that the death penalty should only be used in the “rarest of rare” cases, but it was not clear what defines the rarest of the rare.

Why court specifies that ‘the convict be hanged till death?’

While awarding a death sentence in India, the Courts clearly specify that the convict is ”to be hanged by the neck till death”. The Section 345 (5) of Code of Criminal Procedure, 1898, clearly states that “when any person is sentenced to death, the sentence shall direct that the person be hanged by neck till the person is dead”. Even if we try to make a logical sense of this sentence, that a person be hanged (without mentioning the death part), it’s very well understood that he be killed but the law is followed as it is written. In this case, if the person does not die but his neck is nearly broken, it could cause him immense pain which will defeat the purpose of capital punishment that is awarded to ensure swift death. 

The Story

According to a report in The Tribune, it was Motilal Nehru, an eminent lawyer and the legendary father of Jawahar Lal Nehru, who brilliantly played with the words of the law while defending his client who was charged with blowing up a British officer’s horse carriage. The magistrate ordered the young man to be hanged in public. Surprisingly, Nehru welcomed the judgment and walked away. On the day of the convict’s execution, as soon as he was hung, Nehru sent men to hold on to his leg and rescued him. When the matter was taken to court, Nehru pleaded not guilty.

In favour of his plea, he argued that the magistrate had written the death sentence as “hang him”. And the man had been hung. The sentence did not say “hang him until death”. So a defendant could not be tried on the same charges following a legitimate acquittal or conviction. That is called Double jeopardy. After a subsequent amendment to the law for capital punishment had inserted “hang till death.”

What are the Death Penalty crimes?

Aggravated murder

It is punishable by death under Section 302 of the Indian Penal Code, 1860. The judgments in the Bachan Singh vs State of Punjab play a crucial role in deciding whether any crime deserves death penalty or not. And the death penalty is constitutional only when applied as an exceptional penalty in “the rarest of the rare” cases.

Other offences resulting in death

As per Indian Penal Code, the death penalty is given – 

  • to a person who commits a murder during an armed robbery. 
  • organized crime involvement, if it leads to death, is punishable by death. 
  • the abduction of the victim for money is punishable under death penalty if the victim is killed.
  • helping someone to commit Sati or any person involved in this act is also punishable under death penalty.

Terrorism-related offences not resulting in death

The use of any special kind of explosive to cause an explosion that could cause serious harm to life or damage to any property is punishable by death.

Rape not resulting in death

A person who inflicts injury in a sexual assault which results in the death or is left in a “persistent vegetative state” may be punished with death under the Criminal Law Act, 2013. Gang rapes are punishable by death penalties. These changes were amended in April 2013 after medical student Jyoti Singh Pandey’s 2012 gang rape and death in New Delhi.

Kidnapping not resulting in death

As per Section 364A of the Indian Penal Code, 1860, kidnapping not resulting in death is an offence punishable by death. If a person detains anybody and threatens to kill or harm him during which the kidnapper’s act actually resulted in the death of the victim, he will be liable for death penalty. 

Drug trafficking not resulting in death

If a person is convicted of a commission or attempt to commit, abet, or criminal conspiracy to commit any range of drug trafficking offences, or financing any type or amount of narcotic and psychotropic substances, he can be directly sentenced to death.


Any person who is trying to wage war against the government and helping Army, Navy or Air Force officers, soldiers, or members to commit a mutiny is punishable by death. 

Military offences not resulting in death

Abetment of assault, mutiny or attempting to seduce soldier, airman, or the sailor from his duty and various other offences are punishable by death if committed by a member of the Navy, Army or Air Force.

Other offences not resulting in death

  • Whoever is a party to criminal conspiracy to commit a capital offence is punishable by death.
  • Attempts to kill any person sentenced to life imprisonment are punishable by death if the victim is harmed by the attempt.
  • If a person provides false evidence in his knowledge that can lead to the conviction of a person belonging to a SC/ST for committing a capital offence on the basis of such evidence, will be punished to death if it results in the conviction and execution of an innocent person.

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