"Although there is a good deal of opposition to death penalty, yet it should remain on the statute book", said a division bench of Gujarat High Court while commuting death sentence awarded to two men accused of kidnapping and murdering a boy aged about five years.
Justice JB Pardiwala, in the judgment, discusses various precedents on the subject and also the law commission reports on the issue of death penalty, and also on 'rarest on rare' test. The judgment also features quotes of eminent personalities and judges.
Two Kinds of Abolitionists
The judge observed that there are two kinds of abolitionists: one who believe that human life is so valuable that even the worst murderers should not be deprived of the value of their lives. They believe that the value of the offender's life cannot be destroyed by the offender's bad conduct even if they have killed someone. The other group say that life should be preserved unless there is a very good reason not to, and that those who are in favour of capital punishment are the ones who have to justify their position.
Presence of Death Penalty in Statute Itself Act As A Deterrent
The court observed that although there is a good deal of opposition to death penalty, yet it should remain on the statute book.
"There is a good deal of opposition to death penalty and it is now usually restricted to cases where the crime is of a heinous nature and has been committed with a good deal of premeditation in cold-blood in a manner shocking the conscience of people in general. But still some are of the view that death penalty should be wholly abolished. In our opinion, it should remain on the statute book. Its presence there can itself act as a deterrent to those who may be disposed to commit pre-planned brutal murders of a shocking nature either with some base motive or on hire or for reward. In the matter of punishment as has been said above, the interests of the offender have to be weighed along with the interests of the society."
Punishment Of The Wrong-Doer Is The Vengeance Of The Wronged
The bench further observed that punishment of the wrong-doer is the vengeance of the wronged, and this reinforces the faith of the people in the administration of justice.
"The retributive aspect of the punishment is meant to gratify the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. People will not be disposed to resort to private revenge if they can have the offender brought to book and adequately punished for his crime through a Court of Law. Punishment of the wrong-doer is the vengeance of the wronged, and this reinforces the faith of the people in the administration of justice. If people can get away after committing serious crimes by being awarded nominal punishments, it may induce the person wronged and his friends and sympathizers to resort to private vengeance which is not at all desinable for maintaining peace and order in society."
The court further said that if a particular offender is a menace to the society there should absolutely be no objection to inflicting the death penalty on him: It added that, Although the primary purpose of punishment is to deter, by fear, others who may be disposed to commit similar crimes, yet the secondary purpose is to prevent a repetition of the wrongdoing by disablement of the offender. The most effective mode of disablement is the death penalty which is confined to murder, rape and murder, high treason or other similar offences. If a particular offender is a menace to the society there should absolutely be no objection to inflicting the death penalty on him, the bench said.
Commuted to 30 Years Life Imprisonment
In this case, a five year old boy was kidnapped and murdered. The bench also comprising of Justice AC Rao, upholding the Trial court order of conviction of Akshay Patel and Kuldeep Panchal, observed that, though they committed a heinous crime and murdered an innocent, helpless and defence less boy aged four years and five months, they are liable to be punished severely, but, it is not a case which falls within the category of the rarest of the rare cases. The bench commuted the death sentence with a rider that must serve a minimum of thirty years in jail without remission, before consideration of their case for premature release.