The debate on capital punishment has been running over the past so many decades, but yet nothing concrete is coming up. Many may be satisfied with the present legislation on giving of capital punishment but to many of us its still not serving the purpose that it is deemed to serve. Is it actually working as a deterrent to crime? Which as far as our understanding goes is increasing day by day. History is evidence to the fact that capital punishment has never acted and would never act as deterrence to crime.
GTill date the capital punishments have only acted as deterrence for those families who could hardly earn bread and butter forget about hiring a smart lawyer who could effectively play with the facts of the case to serve his clients. Only few months back a man named Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment to the doer only because he has money to meet out whatever expenditure might come in defending his case. Be it by influencing or so to say compensating the families of those killed or hiring an efficient lawyer to prove the case in their favor. Talk about so many politicians engrossed form top to bottom in so may corrupt t activities known to every one still go out of the Court smiling.
The rarest of the rare principal embodied by the S.C. of India in the case of Bachan Singh v. State of Punjab in giving of capital punishment seems to have been applied only when the defendant is a unprivileged person coming from that strata of the society where people do anything to earn bread and illiteracy has only caused misery. Not than the Court wants to do injustice to these persons but the fact that they are not capable of fighting their case because they cannot hire a lawyer who has master minded the provisions of Article 21 of the Constitution of India to save his client. Nor has he the money to change the evidences against him as has happened recently in so many cases before us where we knew the culprit, where even the
Judge is himself so sure of the culprit but yet the culprit goes off scot-free because of lack of evidences against him.
In order to do justice to one person we cannot do injustice to so many others. Why should the innocent family of the rapist suffer for an act for which he the culprit is the only one responsible? Moreover would capital punishment really bring justice? Thanks to the idea of capital punishment that an easier way to do away with the crime has been found by the doers of the heinous crime. To kill the victim throw her somewhere and move away and if lucky enough then the crime would never be traced back to the offender. The cardinal question to be asked here is are the circumstances of the crime as such that there is no alternative but to impose death sentence?
Hindu dharma talks of nark for evil doers, Muslim talks of jhanum and Christianity talks of hell for evildoers but at the same time without any exception every religion talks of reforms. Giving a chance to the culprit to compensate the victim would go a long way in reforming the person. Moreover Social protestation towards such things would also help in the long run.
The unfortunate part is that even the law is very restricted and limited in its definition about rape. Section 375 of the IPC.,1860, specifies that sexual intercourse comprises rape wherein penetration alone suffice to constitute that sexual intercourse which amounts to offence of rape. Least heed has been paid to the fact that rape is much wider a term and as such should be given a much wider interpretation. Though giving it a wider interpretation may call for some difficulty but a solution should be devised if we want to completely do away with this phenomenon of outraging a females modesty.
The definition does makes it easy for the plaintiff to prove her case. In the given society a gargantuan amount of social stigma is attached with the concept. Even if rape is not done in the strict sense of Section 375 of IPC, the prima facie impression of rape having been committed does an equal harm to the victim. Not always may it be possible to prove the case beyond doubt that a rape has been committed if we go according to the strict interpretation of Section 375 of IPC.
An empirical study manifest that people who have been meted out with capital punishment in India were poor or in minority or both. Nonetheless we do not intend to take sides all that we are trying to say that if justice is to be delivered it should undoubtedly be fair and reasonable. Justice should mean justice.
An overall rethinking about it as a societal as well as legal issue is required. Also if torture is deemed best for the rapist then, why not this torture be constructive? For instance, the convicted can be made to compensate the victim or her family by his income through employment or community services. The act of rape is the most heinous crimes against the humans so the punishment should also be very painful. So that others fear the crime.
Even if all this sound a bit dissatisfactory to the victim of rape or her family then it is submitted that capital punishment is quite a merciful punishment for a crime as heinous as rape.
Why should the rapist be killed with a pain of just two seconds contrary to the victim who in a society like ours would still live with so much shame and un-acceptance? If the girl has to continue with this stigma throughout out her life let the rapist also live with the stigma of rapist. He should be made to suffer equally, if not to avenge then at least to strike a balance.
The crime of rape is the most heinous crime that anywhere on earth can happen. Rape is of course a physical assault to a woman, but apart from that it is also a mental torture which she has to face after that. By punishing such accused by just an imprisonment is not a solution at all. of course, the Indian courts rule the death sentence in “rarest of the rare cases”, but it has always been misused in the society. The person who is commits this offence must be led to death. The seriousness of offence is too deep than what the law has estimated. When the woman is raped, some times its even worst than being dead. She has to face social humiliation and many more issues of her chastity, character and life comes into the picture. Hence, death sentence is “THE PUNISHMENT” in the cases of rape.
 AIR 1980 SC 898
 Constitution of India
 IPC stands for Indian Panel Code
Student, University Five Year Law College (University of Raj.), Jaipur
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]