What Gets You The Noose? – A Look Into The Constituents Of The Rarest Of Rare Category Of Crimes

Ashirbad Nayak elucidates on the criteria for the death penalty awarded by courts and the circumstances of a case that necessitate the same.

It is well known that the death penalty is awarded only for those crimes which fall under the rarest of rare category. In this article, we are going to take a look at what are the criteria for determining whether a crime falls under that category, by going into the precedents and principles established through various judgements.

The article has been written in a Q&A format for ease of reading, and to make it concise and brief.

Q. How did the concept of ‘rarest of rare’ originate?

A. The concept of ‘rarest of rare’ was first laid down in the case of Bachan Singh v State of Punjab , in which it was held that ‘rarest of rare cases are those in which the collective conscience of the community is so shocked that it will expect the upholders of judicial power centre to inflict the death penalty irrespective of their personal opinion as regards to desirability.’

But it was in the case of Macchi Singh that the honourable Apex Court decided that the death penalty was the exception rather than the norm. Prior to this judgement, capital punishment was the standard penalty for heinous crimes. After this judgement, life imprisonment replaced capital punishment as the standard, with the latter being reserved for the most heinous crimes only.

Q. What are the circumstances in a case/crime which merit the death penalty?

A. It the case of Lehna v State of Haryana , five parameters were identified, fulfilling any of which the accused shall be awarded the death penalty. The five parameters are as follows:

a. When the murder is committed in an extremely brutal, grotesque, diabolic, revolting or dastardly manner so as to arouse extreme and intense indignation from the community.

b. When the murder is committed in a manner which evinces total depravity and meanness e.g. murder by an assassin for monetary gains, murder committed in course of betrayal of the motherland.

c. When murder of a person belonging to the scheduled castes or minorities is committed in circumstances which arouse social wrath, also in cases of dowry deaths, bride burning, or when murder is committed to marry another woman on account of infatuation, or for extracting dowry once again.

d. When the crime is of enormous proportion, for instance multiple murders, involving members of the same family, or of a large number of people belonging to a particular community, caste or locality. In the case of

e. When the victim is an old/ infirm person, or an innocent child, or a helpless woman or a person with whom the perpetrator was in a dominating position. Or the murder is of a public figure generally loved or respected by the community.

In the same judgement, it was held that the circumstances of other cases shall be tried in the light of these parameters, and then if the court the court feels that the death penalty is warranted, it can proceed to do so.

Q. What are the other tests for determining whether a crime falls into the rarest of rare?

A. In the case of Deepak Rai v State of Bihar, the court said that the courts have to look into the following factors to determine whether a crime falls into the rarest of rare category or not.

a. Motivation of the perpetrator.

b. Vulnerability of the victim.

c. Enormity of the crime, and the execution thereof.

d. Society’s abhorrence, extreme antipathy or indignation to certain types of crimes which shakes the entire conscience of the society.

It has been held in the case of Bantu v State of Madhya Pradesh, that death penalty is to be awarded only when there is a dire need for the accused to be eliminated from the society. Also, in some other cases it has been held that the antecedents of the criminal, and the use of weapons for perpetrating the crime are the other relevant factors to be taken into consideration while deciding whether a crime is rarest of the rare or not.

Q. Can ‘young age of the perpetrators’ and ‘conviction on basis of circumstantial evidence’ be held credible defences against awarding the death penalty?

A. No, they do offer a credible defence against the death penalty. As is evident from the case of Javed Ahmed Abdul Hamid Pawala v State of Maharashtra, the plea that the death penalty was unjustified owing to the fact that the case rested only on circumstantial evidence was dismissed by the apex court. Similarly in the case of Narayana Chetanram Chaudhary v State of Maharashtra , it was held that the two accused, who were between the ages of 20 and 22 had shown beast like tendencies, and had relished the crime, hence their youth and young age could not be held as mitigating factors. In both these cases, the death penalty was upheld.
Q. What are the major cases in which death penalty has been awarded and what was the rationale behind the same?

A. In the case of State of Rajasthan v Jamil Khan, Justice Kurian Joseph, held that heinous rape of minors followed by murder is an instance where the collective conscience of the community and the court is shocked and repulsed. Such crimes are to be treated as rarest of the rare.

In the case of Shiv Ram v State of U.P, it was held that mass murder constitutes rarest of rare crimes, and hence death penalty is warranted. Similarly in the case of Suresh v State of U.P., the accused had murdered his brother and his brother’s family, including small children, the court said that it fell into the rarest of rare category and upheld the death penalty.

In State of U.P v Dharmendra Singh multiple injuries had been inflicted on the victim to wreak vengeance, the death penalty was upheld in this case. Similarly in the case of Ajay Kumar Pal v State of Jharkhand the death penalty was awarded on the grounds that the meticulous planning and execution of the crime could not have led it to occur on the spur of the moment. This led it to fall under the rarest of rare category, and hence the death sentence was upheld.
Honour killings too fall under the category of rarest of rare, as was seen in the case of State of U.P v Krishna Master. However, in this particular case the long lapse in time and the post conduct behaviour of the accused led to the commuting of death sentence to life imprisonment by the honourable Supreme Court.

The Supreme Court in its 650 paged judgement in the Kehar Singh case, had lashed out against the assassination of an unarmed individual and the brutality of the crime by pumping thirty bullets into the body. Subsequently Kehar Singh was hanged for the murder of Mrs. Indira Gandhi. The ratio of Kehar Singh case was followed, and death penalty was awarded to the accused in the case of State of Maharashtra v Sukhdev Singh, which dealt with the assassination of General Vaidya who had conducted the Operation Blue Star for cleansing the Golden Temple of militants. The court held that this crime fell into the rarest of rare category, as the accused did not show repentance or remorse, but were instead proud of their act.

Q. In spite of the numerous death penalties being handed down, how many executions have taken place in India, in the past twenty years?

A. Currently, the Apex Court upholds or awards only three to four death sentences on an average every year. Yet there are a number of people who have been languishing in prison as under-trials some of whom have been in jail for decades. Others are those who have appealed to the President for clemency. Thus, since 1995 India has witnessed only five executions.

The serial killer Auto Shankar, was found guilty of murder of six people and was hanged on 27.04.1995. Dhananjay Chatterjee, who was hanged for the murder and rape of a fourteen year girl in Kolkata in 2004. The last three people to have been executed were Mohammad Ajmal Amil Kasab (2012), Afzal Guru (2013) and Yakub Memnon (2015) for carrying out terrorist activities against the nation, which led to loss of civilian lives.

Q. Is there a fixed yardstick to determine ‘rarest of rare’ cases?

A. No, the determination of rarest of rare is carried out almost entirely on the discretion of the courts, on the basis of the circumstances and facts of the case, and in consonance with the tests identified in the preceding judgements.



[1] (1980) 2 SCC 24
[2] (2002) 3 SCC 76
[3] (2013) 10 SCC 421
[4] (2001) 9 SCC 615
[5] (1983) 3 SCC 39
[6] (2000) 8 SCC 457
[7] (2013) 10 SCC 721
[8] (1998) 1 SCC 149
[9](1999) 8 SCC 325
[10] (2010) 12 SCC 118
[11] (2010) 12 SCC 344
[12] (1992) 3 SCC 700