This ruling was handed down by a bench of Justices Markandey Katju and C K Prasad while upholding death penalty to one Ajitsingh Harnamsingh Gujral who killed his wife and three grown up children in Mumbai in April 2003.
The death sentence coincides with a renewed debate on death penalty in the wake of efforts to whip up resistance to the impending hanging of death row convicts: from those held guilty of assassinating former PM Rajiv Gandhi to Khalistani terrorist Devendra Pal Singh Bhullar to Parliament attack plotter Afzal Guru. The court noted that globally the movement was away from death penalty, but said that the judiciary cannot stop using the capital punishment for "rarest of rare" cases so long as it was provided for under the law.
The bench held that the court's failure to impose capital punishment for heinous crimes falling in the rarest of rare category would amount to "repeal of death penalty by the judiciary".
Gujral had a fight with his wife, as they routinely did every day, in the dead of the night at his Sher-e-Punjab colony in Andheri on April 9-10, 2003. Enraged, he poured gallons of petrol on all four and set them on fire before fleeing. He was caught in Madanganj in Ajmer district, Rajasthan, four days later.
Discussing a whole gamut of Supreme Court judgments dealing with death penalty and laying down the rarest of rare category guidelines, Justice Katju said: "In our opinion this is one of such cases. Burning living persons to death is a horrible act which causes excruciating pain to the victim, and this could not have been unknown to Gujral."
"A person like Gujral who instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner cannot be reformed or rehabilitated. The balance sheet is heavily against him and accordingly we uphold the death sentence awarded to him," the bench said.
The apex court also examined the trend of death penalty worldwide and noted the divergence -- 96 countries have abolished it, 34 have not used it for a considerable period of time while 58 countries still retain it.
Among the European countries, Italy abolished death penalty in 1947, followed by Germany (1949), UK (1973) and France (1981). Canada did it in 1976 and Russia has not imposed death penalty on anyone since 1996. Australia last did in 1967 before formally abolishing it in 2010.
Quoting Amnesty International data, Justice Katju said: "China executes more people than all the rest of the world put together. It has death penalty for a variety of crimes -- aggravated murder, drug trafficking, large scale corruption etc."
He said the UN General Assembly in 2007-08 passed a non-binding resolution for global moratorium of execution with a view to eventually abolishing it. "However, 65% of the world population lives in countries like China, India, Indonesia and the US which continue to apply death penalty, although both India and Indonesia use it rarely," the bench said.
In the Indian context, the bench said only the legislature could abolish death penalty and not the courts. "As long as the death penalty exists in the statute book it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by judiciary," it said.
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