Legal analysis on death penalty
Arpeeta Shams Mizan
(….from previous issue)
The Indian court made it clear that the ruling in Bachan singh v. State of Punjab (AIR 1980 SC 898) upholding the constitutional validity of death sentence could not govern death penalty prescribed in section 303. Referring to Sec 235(2) of the CrPC 1973 in context of sec 303 IPC the SC 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: “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.
Questions may be raised as to section 305 that while attempt to suicide or abetment of suicide in general (sections 309 and 306 respectively) are not punishable with death, then is it a justified for section 305 to have death penalty for its maximum sentence. However one justification to this question this section has been qualified by the words child, idiot, insane, intoxicated person etc. these qualifications render that these persons do not posses a normal state of mind so as to be of ordinary prudence and reasonableness and also, they are not the best judge of their best interest. These are the persons who are exempted from liabilities in every legal sphere, while the law also always lenient towards them. The state of these persons itself shows that the abettor who is supposedly a major and same person has a reasonable duty to prevent the commission of suicide, for attempt to and commission of suicide itself are major offences under the PC. At the same time the legal maxim goes that: ignorantia juris non excusat. Taking all these factors into consideration we might conclude that death penalty has been inserted here as the maximum punishment, there being alternative lenient sentences.
Part 2 of this section 307 provides mandatory capital punishment for an offence of attempt to murder by a life convict 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 them prisoners. An analysis of these provisions of the PC further reveals that there are valid reasons for allowing wider judicial discretion in cases of offences other than those falling under 303.
As regards section 326A, grievous hurt itself is a major offence under PC. All kinds of grievous hurts under section 320 are not included in this new section (section 326a was inserted by Ordinance no LXIX of 1984). But only the second and the sixth kinds (Alamgir and another v. state 1992 BLD 472). It is apparent that this section was inserted to prevent particularly these exclusive crimes and therefore death penalty as the maximum sentence possesses a deterrent effect. The seriousness of these offences are also upheld by the enactment of the ACID NIONTRON AIN 2002(Act 1 of 2002). The nature of the offences under this section 364A demonstrate that these are always well planned premeditated and carried out cold bloodedly. Children are one of most intricate section of the society, at the same being most vulnerable. Thus it is the prime consideration of society and law enforcing agencies to ensure the best interest of child. Thus the underlying reason for putting capital punishment in this section is to promote the deterrent effect so as to prevent the commission of such crime as far as possible.
Dacoity under section 396 was a serious offence even during the period of codification of this legislation. This section has connection with section 34 and 71 of the code. As per the doctrine of common intension, it is not required that all participants in the joint act must either have common intension of committing the same offence or producing the same result by their joint act. It is enough if all of them intend that the joint act be performed (Fazar v. Crown 4 DLR 99). Common intention can develop in the course of the events which constitute the incident as a whole although such intention may not have been present in the mind of any of the culprits at the commencement of the incident. Common intension can be formed on the spur of the moment and can be inferred from the surrounding circumstances, even if there is no evidence of pre planned conspiracy to murder the victim. Thus under this section it is evident that there is the necessary mens rea, so with the commission of the act (actus reus) the offence is complete. Under section 71 in a conviction of dacoity grievous hurt should not be made the subject of a separate charge and a separate punishment should not be awarded for it as provided in clause two.
If substantiated in respect of death penalty, then it appears that death sentence has been used as an effective means of retributive and deterrent justice for centuries. However the present trend is to keep the number of offences punishable by death to a minimum and avoid death penalty as far as possible though its retention in the statute book is favored even to this day.
The writer is a street Lawyer & student of Law, University of Dhaka.