Submission of Death Sentence


Author: Mansi Rana, UPES Dehradun


India is one of the developing countries in the world and with development, the crime rate also rises hand in hand. Though so many preventive measures have been taken, then also the crime rate is increasing day by day as the punishment is not sufficient to stop the crime.

All the punishments are based on the 2 scales, one that the wrongdoer needs to suffer for the wrong done and second, the credence of inflicting the punishment can prevent the crime if any is committed in the future.

Basically Capital Punishment also is known as the death penalty in this process person is put to death for their criminal offense. It is awarded in the rarest of rare cases and this is different in every country. In India, it is provided in a heinous and grievous offense. 

According to article 21 of the Indian Constitution, every person has the right to life and no one should be deprived of it. In India, the IPC stipulates that the death penalty as a punishment is provided for various crimes such as criminal conspiracy, murder, the war against the government, incitement to mutiny, dealing with murder and countering terrorism.


A death sentence is a lawful procedure where an individual is executed by the state as a discipline for wrongdoing submitted by him. The judicial order that should punish someone in this way is called the death sentence, and the actual process of killing the person is called execution. Crimes that may lead to capital punishment are called capital crimes. The word capital originates from the Latin word capitalist, which literally means “about the head”.

In India, Section 368 of the Criminal Procedure Code gives the High Court the power to confirm the death sentence. Usually in the case of murder, waging war against the country death penalty is given and is also cited as rarest of the rare cases.

In India, the death penalty is issued by hanging around the neck. This method has been in practice since the British era and has not been abolished until today. The death penalty is stipulated in section 53 of the Indian Penal Code,1860, and the High Court has the power to confirm the death penalty in Section 368 of the Criminal Procedure Code. The death penalty was sentenced in the rarest case, that is, the collective conscience of those communities was so shocked that it expected the judiciary to sentence the defendant to death. The Supreme Court of India stated that murders committed in extreme cases can be placed within the jurisdiction of the rarest cases.


According to Section 28 of the Criminal Procedure Code 1973, the High Court and Session Court have the power to pass a sentence to any convict which includes any sentence which is conferred by then law.

According to Section 28(2), A Session Judge or Additional Session Judge may pass any sentence authorized by law, but any sentence of death passed by any Judge shall be subject to confirmation by the High Court.

According to Section 366 of the Criminal Procedure code of 1973 “When the court of the session passes the death sentence, this procedure shall be submitted to the High Court, which shall not be executed unless approved by the High Court. In the Balak Ram Etc vs The State Of U.P[1], The High Court needed to review the facts and question of law in the case where the death sentence imposed by the Session Court, and after the High Court duly investigated this matter, the accused was awarded the death sentence.


According to section 368 of the Criminal Procedure Code:

  •  High Court may confirm the sentence or pass any other sentence warranted by law;
  • Annul the conviction, and convict the accused of any offense of which the Sessions Judge might have convicted him, or order a new trial on the same or an amended charge; or
  • Acquit the accused.

However, the High Court shall not make an order of confirmation before the expiration of the period for allowing appeals to expire, or if an appeal is filed within that period until the appeal is processed.

According to Section 375 of CrPC, the High Court has the power to conduct further investigations or take further evidence to prove the accused guilt or innocence


Rajendra Prasad Vs. The state of U.P.[2] in this particular case Krishna Iyer held that capital punishment can only be granted to criminals who can be seen as a threat to society. He also held that giving the decision in the hand of judges to decide whether an accused can be given capital punishment or life imprisonment under section 354(3), is violative of Article 14 of the Indian Constitution. Sen. J. in his dissenting opinion said that the question of the death penalty should be abolished or not and the scope of IPC Section 302 and 354(3) of CrPC should be reduced or not is in the hand of parliament and not the court. Minority judgment as given the preference and it was said that the discretion choice is with the judges and not with the executive.

Bachan Singh Vs. State of Punjab[3] in this case the judgment in Rajendra Prasad Case was overruled and held that the death penalty under Section 302 of the Indian Penal Code is not violative of Article 14 of the Indian Constitution. According to the International Covenant of Civil and Political Rights imposition of the death penalty should not be abolished in all cases.  All it needs is that (1) the death penalty should not be arbitrarily imposed, (2) the death penalty should only be imposed for most serious crimes.

Macchi Singh vs State of Punjab[4] In this case 17 members were murdered because of the ongoing dispute between two families. The trial court gave the death sentence to the accused and the same was confirmed by the High Court. When it was appealed in the Supreme Court the question was whether the case of rarest of the rare cases is applicable here or not. In assessing Bacchan Singh’s various aggravating and mitigating circumstances, the court ruled that in some cases, society ’s collective conscience was so shocked that it must be sentenced to death.

Swamy Shraddananda & Murali Manohar vs. State of Karnataka[5] in this case both the trial court and high court sentenced the death penalty to the appellant. When appealed in the Supreme Court the conviction was upheld but the judges did not agree with the punishment. One judge believed that life imprisonment is sufficient, because this is not the rarest case, while other judges believed that life imprisonment here is not sufficient as a sentence.

The court held that it has the power to provide the death penalty in some cases, but life imprisonment will mean that the offender will not be released for the rest of his natural life. This particular category will meet the rarest of the rare case because life imprisonment by conventional understanding alone is not sufficient to impose the death penalty on a person. Strictly enforce judgments of the death penalty.

Ravji Akias Ram Chandra Vs State of Rajasthan[6] in this case the appellant was convicted and sentenced to death for murdering his wife, three minor children and a neighbor. The lower court considered this a cold-blooded and premeditated murder and should be sentenced to death. The Supreme Court must decide whether to meet the rarest criteria.

The court applied the theory of deterrence and retribution. Taking into account the facts and circumstances, the court held that the appellant had an obligation to protect and take care of his wife and children. The crime is brutal and outrageous, without any provocation, enough to be sentenced to death. The court held that the nature and severity of the crime, not the nature of the offender, are closely related to the punishment


After looking into the various provisions provided in the Indian legal system, it is clear that even after sentencing the death penalty to the defendant, he still has many other options to avoid the execution of the order confirming the sentence through the appeal to the High Court, and After the High Court confirmed the death penalty, the defendant could still knock on the door of the Supreme Court through its appellate jurisdiction or through a special leave petition under Article 136. The last option left by the defendant is a pity petition to the President of India under Article 72 of the Indian Constitution.

In addition, it can be concluded that the Indian Constitution provides for a fair trial, that is, to give the defendant all possible opportunities to conduct hearings in a fair and impartial manner.

[1]1974 AIR 2165

[2]1979 AIR 916

[3]AIR 1980 SC 898

[4]1983 AIR 957

[5](2008) 13 SCC 767

[6]1996 (2) SCC 175

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