Courtesy: Manasvi Agarwal
The Death Penalty is the final, most absolute, and perhaps the most inhumane penalty for a deviant behaviour that is unpardonable and unimaginable by the human society. As a consequence, the most gruesome, heinous, and abhorrent crimes in India are punished with “Death”, but this penalty is awarded only in the “rarest of the rare” cases.
This article expounds on capital cases before the Allahabad High Court, when the death penalty can be imposed, the powers of the Allahabad High Court under the Bharatiya Nagarik Suraksha Sanhita 2023, and the legal remedies available to a person facing capital punishment.
What are the powers of Allahabad High Court vis-à-vis the confirmation of the death sentence?
Under the Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 407 to 412 govern confirmation of the death sentence. When a Sessions Court awards the death penalty in rarest of the rare cases, it requires to be confirmed by the Allahabad High Court.
Section 407 of the Bhartiya Nagarik Suraksha Sanhita 2023 provides as follows:
“407. Sentence of death to be submitted by Court of Session for confirmation.—(1) When the Court of Session passes a sentence of death, the proceedings shall forthwith be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant.”
The Allahabad High Court may:
- Confirm the sentence
- Commute the sentence (to life or term imprisonment)
- Acquit the accused and set aside the sentence
- Alter the charge or
- Order a retrial
What is the stance of the Allahabad High Court on sentencing?
The Hon’ble Allahabad High Court in Arvind Yadav And Another Vs. State Of U.P. commuted the sentence from capital punishment to life imprisonment to the accused persons. The Court reiterated the settled law in Bachan Singh Vs. State of Punjab (1980)2 SCC 684, stating that life imprisonment is the rule and death sentence an exception, where the latter is granted in rarest of rare cases, when an alternative is completely waived off. It further quoted Machhi Singh Vs. State of Bihar (1989)3 SCC 470, where the death sentence was permissible only in those exceptional cases, in which the crime, owing to its brutality, shocks the common conscience of the community. The Allahabad High Court did not regard the incident as that of brutal, cruel, revolting or even shocking to the concerns of the community. It looked forward to the reformation of young accused persons, and did not categorise the crime as uncommon or rarest of rare.
It is further settled law that in matters where a death sentence could be one of the alternative punishments, the courts must be completely vigilant and see that full opportunity at every stage is afforded to the accused.
What is the role of direct and ocular (eyewitness) evidence in death penalty cases?
Ocular evidence from eyewitnesses is considered direct evidence. If a witness claims to have seen the accused committing the murder, their testimony is given substantial weight, especially if it is natural and not rehearsed, and the witness is independent, and the version is consistent throughout trial and cross-examination. However, such evidence must always be tested in light of other evidence, such as medical or forensic proof.
In the case of Ramnaresh v. State of M.P., (2012) 4 SCC 257, the Hon’ble Supreme Court held that even where there is direct evidence, the court must be cautious while imposing the death penalty and must check for corroboration, especially when the sentence is irreversible.
If the eyewitness is a related witness, or has an interest in the outcome of the trial, or if the testimony is not supported by medical/forensic evidence, it can lead to commutation to life imprisonment or acquittal. However, the assessment of independent witness has been clarified in the case of Bhaskarrao vs. State of Maharashtra (2018) 6 SCC 591, wherein it has been held as follows:
“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the Accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general Rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”
How does medical evidence impact the confirmation of a death sentence?
Section 45 of Bhartiya Sakshya Adhiniyam provides that opinions of experts (like doctors) are admissible to form conclusions about injury, cause of death, etc.
Medical evidence (e.g., post-mortem reports) helps establish the nature and type of injuries, time of death, weapon used, and whether the injuries could have been self-inflicted or accidental. It corroborates or contradicts ocular evidence.
In the case of Krishna Gopal v. State of U.P., AIR 1988 SC 2154, it was held that where medical evidence contradicts the version of eyewitnesses, it becomes unsafe to base a conviction solely on their testimony. Inconsistencies between the medical and eyewitness accounts weaken the prosecution’s case and may tilt the balance toward a lesser sentence or acquittal.
To read in depth about the interplay between medical evidence and ocular evidence, click on the following link:
What is the “last seen together” doctrine, and how is it applied in capital cases?
Section 106 of the Bhartiya Sakshya Adhiniyam 2023 provides that the accused must explain facts within their special knowledge i.e. if a person is last seen alive with the accused and is later found dead, a presumption arises unless the accused provides a credible explanation. However, this doctrine is not a conclusive proof, and it must be coupled with strong corroborative evidence like motive, recovery, etc.
In the case of Kanhaiya Lal v. State of Rajasthan 2014 (4) SCC 715, the Apex Court held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more to establish the connectivity.
Aggravating Circumstances and Mitigating Circumstances
To know about the aggravating circumstances and mitigating circumstances in case of capital punishment, please read the article on Capital cases before Allahabad High Court by clicking on the following link –
Remedies against the confirmation of the death penalty by the Allahabad High Court in capital cases
After the High Court confirms a death sentence, the appellant/ convict may prefer a Special Leave to Appeal (colloquially referred to as “SLP”) under Article 136 of the Constitution of India before the Supreme Court against the judgment and order of the Allahabad High Court. The Supreme Court can reappreciate the facts and law, and even interfere with findings of the High Court if there is a miscarriage of justice.
The final remedy after agitating the matter in review, and curative petitions, is a “Mercy Petition” or a clemency petition under Article 161 of the Constitution of India before the Hon’ble Governor, or under Article 72 of the Constitution of India before the Hon’ble President, as the case may be. In case a clemency petition is preferred, the Governor or the President may suspend, remit, or commute the sentence, and in exceptional cases, only the president may pardon the sentence. The relief may be granted on humanitarian grounds, mental illness, inordinate delay in execution, or reformation evidence.
Hence, to conclude, Punishment must be proportionate to the crime, taking into account the circumstances of both the offence and the offender. If all the hopes regarding the betterment of the offender are in vain, and it is evident that the offence so committed is of a nature that life imprisonment as a punishment won’t suffice, and society won’t accept the offender, then in those rare cases, the death penalty may be confirmed.
In Bachan Singh v. State of Punjab (1980), the Court laid down the “rarest of rare” doctrine, allowing the death penalty only in the most exceptional cases. However, Justice Kurian Joseph in his dissent in Chhannu Lal Verma v. State of Chhattisgarh questioned whether the death penalty has any legitimate role left in a modern, constitutional democracy. He emphasized that the focus should be on reformation, not retribution, especially where the offender shows potential for change.