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Report No. 35

V. Irrevocable

162. Irrevocable.-

Capital Punishment is irrevocable. If an innocent person is sentenced to death and executed, the greatest injustice results1.

1. See also Canadian Report, p. 12, para. 40 stating the argument.

163. Several cases of erroneous conviction are known. An innocent person was once hanged for murder, while the person who actually committed the offence later on spent 14 years in the Andamans for an attempt on the life of the Governor of Bengal1.

1. Shri Bhupesh Gupta, Rajya Sabha Debates, 25th August 1961, Cols. 1701 and 1702.

164. In one case the man who really committed the murder was never prosecuted and a man who was innocent of the crime was sentenced to death. In the Punjab, 3 or 4 persons were prosecuted for the alleged murder of a woman, and while the case had been going on for over a year there, the alleged victim-the woman-appeared in some court in U.P., and thereafter the cases against the alleged murderers were withdrawn1-2.

1. Shri B.K.P. Sinha, Rajya Sabha Debates, 25th August, 1961, Col. 1717.

2. See also cases cited by Mr. Justice B.N. Banerjee, Abolition of Capital punishment Law Quarterly (Journal of the Indian Law Institute West Bengal State Unit), June 1965, pp. 123 and 128.

165. A case in which error might have ensued is cited. In the Mehboob Nagar district in the Andhra Pradesh, when the trial of a person for the murder of 'A' was about to begin in the Sessions court, 'A' who was alleged to have been murdered was walking alive in the court room1.

1. Shri Umanath, Lok Sabha Debates, 21st April, 1962, Col. 333 (cites also his own case of being falsely implicated on a murder charge).

166. Capital punishment is irrevocable. When as a result of an erroneous conviction, a man is sent to prison, he can be compensated. "But death admits of no compensation.1".

1. Shri M.L. Agrawal, Lok Sabha Debates, 24th August, 1956, Cols. 4343 to 4388.

167. Sometimes there may be a mistaken view of the law. Thus, (it is argued), a person was sentenced to death in one Madras Full Bench case, on a confession made by him, to an investigating officer. Ten years later, the Privy Council, in a similar case, held, that this case was wrongly decided, and that the confessions ought not to have been admitted in evidence1.

1. Shri M.L. Agrawal, Lok Sabha Debates, 23rd November, 1958, Cols. 916 to 986. The reference is to:-

(i) Athappa Goundan v. Emp., ILR 1937 Mad 695: AIR 1937 Mad 618 (629) (FB); (Confession made under section 27, Evidence Act).

(ii) 74 IA 65: AIR 1947 PC 67 (71), para. 12.

168. Man not free.-

The penalty of death is based on the postulate of human freedom, while actually the offender does not generally enjoy complete freedom. Absolute justice, therefore, is an illusion, and full atonement a fiction1.

1. U.N. Publication (1962), p. 61, para. 225.

VI. Morbid

169. Morbid.-

By giving rise to sensationalism, capital punishment deflects potential offenders towards violence.

The curiosity aroused by the execution is morbid, and the penalty of death itself may have the effect of leading to crime, particularly in respect of abnormal individuals1.

One murder breeds another murder. After every sensational execution, there comes a wave of crimes2.

1. U.N. Publication (1962), p. 62, para. 229.

2. Smt. Savitry Devi Nigam, Lok Sabha Debates, 1st April, 1962, Col. 339

170. Hanging a mockery.-

Hanging is a mockery of punishment. "Real criminals do not look like guilty people at that moment. If you go and see there, it is the officers who look guilty. They are huddled together, they are afraid, they are ashamed, they know that they are doing something ghastly.1".

1. Shri Prithvi Raj Kapoor, Rajya Sabha Debates, 25th April, 1958, Col. 525.

171. Brutalising effect.-

Capital punishment has a brutalizing effect not only on the prisoners and the staff of the prisons, but on society at large1.

1. Canadian Report, p. 12, para. 39, stating the argument.

VII. Unjust

172. Injury to family.-

The sentence of death injures the family of the offenders, and thus imposes suffering on persons who have done nothing to deserve the suffering. "Have you ever tried to visualise the feelings of a mother on the night before her boy is to be hanged? The agony and horror which you and I representing the State must inflict on this perfectly innocent woman must be more terrible than any pain the murderer can inflict on his victims.1".

1. Stacey Aumonier, cited by M.L. Agrawal, Lok Sabha Debates, 24th August, 1956, Cols. 4343 to 4388.

173. Unequal application.-

Death penalty is applied unequally. Some persons who have not sufficient financial means to defend themselves, or are morally unable to do so, suffer1. The penalty, therefore, which should be the expression of absolute justice, often leads in practice to injustices against individuals.

1. U.N. Publication, (1962), p. 62, para. 229.

174. Justice not possible.-

It has become difficult to obtain justice in the present judicial system in India. The standard of investigation has terribly deteriorated. Further, until total separation of the judiciary from the executive is carried out, death sentence should be suspended. Thirdly, persons who cannot afford to engage a good lawyer, are unable to fight the case to the last. Counsel provided by the State are paid low, and they cannot be expected to devote their whole heart to the case1.

1. Shri Raghunath Singh, Lok Sabha Debates, 21st April, 1962, Cols. 318 to 320 (in Hindi). (Quotes discussion from Law Commission's 14th Report, Vol. 2, para. 11 about standard of investigation)

175. Since human beings are imperfect, the system of administration of justice will always remain imperfect. Therefore, from the point of view of justice, the assumption behind capital punishment that justice can be meted out to another person only by killing him, cannot be supported1.

1. Yogendra Jha, Lok Sabha Debates, 21st April, 1962, Col. 351 (in Hindi).

176. Even in those States of United States of America where death sentence has been retained, the matter is left to the jury and not to the Judge1.

1. Shri Raghunath Singh, Lok Sabha Debates, 21st April, 1962, Cols. 314 (in Hindi).

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