9911796707
TMI Blog1979 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Court. 2. A narration of facts is normally necessary at this early stage but we relegate it to a later part, assuming for the nonce the monstrosity of the murder in each case. Is mere shock at the horrendous killing sufficient alibi to extinguish one more life, de hors circumstances, individual and social, motivational and psychical? The crime and the criminal, contemporary societal crisis, opinions of builders and moulders of the nation, cultural winds of world change and other profound factors, spiritual and secular, and above all, constitutional, inarticulately guide the Court's faculty in reading the meaning of meanings in preference to a mechanistic interpretation of Section 302 I.P.C. projected in petrified print from Macaulay's vintage mint. 3. We banish the possible confusion about the precise issue before us-it is not the constitutionality of the provision for death penalty, but only the canalisation of the sentencing discretion in a competing situation. The former problem is now beyond forensic doubt after Jagmohan Singh v. State of Utter Pradesh 1973CriLJ370 and the latter is in critical need of tangible guidelines, at once constitutional and functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. THE OLD TEXT AND THE NEW LIGHT Section 302. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. 5. Such stark brevity leaves a deadly discretion but beams little legislative light on when the court shall hang the sentencee or why the lesser penalty shall be preferred. This facultative fluidity of the provision reposes a trust in the court to select. And 'discretionary navigation in an unchartered sea is a hazardous undertaking unless recognised and recognizable principles, rational and constitutional, are crystallised as 'interstitial legislation' by the highest court. The flame of life cannot flicker uncertain and so Section 302 I.P.C. must be invested with pragmatic concreteness that inhibits ad hominem responses of individual judges and is in penal conformance with constitutional norms and world conscience. Within the dichtomous frames-work of Section 302 I.P.C, upheld in Jagmohan Singh, we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility. Hazy law, where human life hangs in the balance, injects an agonising consciousness that judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "kit of cases" compels the conclusion that, at least in contemporary India, Mr. Justice Douglas' argument in Furman v. Georgia 408 U.S. at 238 is correct: that arbitrariness and uneven incidence are inherent and inevitable in a system of capital punishment; and that therefore-in Indian constitutional terms, and in spite of Jagmohan Singh-the retention of such a system necessarily violates Article 14 guarantee of "equality before the law. 7. The author further observes: One source of the confusion seems to have been an under-current of disagreement as to the correctness and applicability of the argument in Ediga Anamma. But the only direct challenge has been in Bishan Dass v. State of Punjab 1975CriLJ461 (January 10, 1975 : Case 52) and, with respect, the challenge there seems clearly misconceived. What a study of the decisions of the higher courts on the life-or-death choice shows is that judicial impressionism still shows up and it is none too late to enunciate a systematised set of criteria or at least reliable beacons Ediga Annamma (supra) in terms, attempted this systematisation: Let us crystallise the positive indicators against death sentences under I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstellation of human values, cherished principles and spiritual norms which belight old codes and imperial laws and impel new interpretations and legislations to tune up the New Order. The Indian Penal Code must be sensitized by the healing touch of the Preamble and Part III. Wrote Wheeler, J : Dwy v. Connecticut Co., 89 Conn. 74. That court best serves the law which recognises that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society.... Benjamin N. Cardozo, said :(The Nature of the Judicial Process by Benjamin N.Cardozo) If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successOrs. 9. Such a solution to the death/life alternatives, where the Code leaves the Judge in the cold, has its limits. "Justice Homes put his view pithily when he said that judges make law interstitially, that they are confined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f punishment. The discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior courts. (p. 35) 13. What is important to remember is that while rigid prescriptions and random prescriptions which imprison judicial discretion may play tricks with justice, the absence, altogether, of any defined principles except a variorum of rulings may stultify sentencing law and denude it of decisional precision. 'Well-recognised principles' is an elegant phrase. But what are they, when minds differ even on the basics 14. Fluctuating facts and keleidoscopic circumstances, bewildering novelties and unexpected factors, personal vicissitudes and societal variables may defy standard-setting for all situations; but that does not mean that humane principles should be abandoned and blanket discretion endowed, making life and liberty the plaything of the mentality of human judges. Benjamin Cardozo has pricked the bubble of illusion about the utter objectivity of the judicial process:(The Nature of the Judicial Process by Benjamin N.Cardozop.167 I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed after trial in accordance with procedure established by law is not unconstitutional'. The acceptance of the invulnerability of discretionary power does not end the journey; it inaugurates the search for those, 'well recognised principles' Palekar, J., speaks of in the Jagmohan case. Incidental observations without concentration on the sentencing criteria are not the ratio of the decision. Judgments are not Bible for every line to be venerated. 17. When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to Section 302 I.P.C. But if legislative undertaking is not in sight judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles even if it may appear to possess the flavour of law-making. Lord Dennings' observations are apposite: Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good sentence of death by the trial court is sometimes upset by the Supreme Court because of Law's delays. Courts have been directed execution of murderers who are mental cases, who do not fall within the McNaghten rules, because of the insane fury of the slaughter. A big margin of subjectivism, a preference for old English precedents, theories of modern penology, behavioral emphasis or social antecedents, judicial hubris or human rights perspectives, criminological literacy or fanatical reverence for outworn social philosophers buried in the debris of time except as part of history-this plurality of forces plays a part in swinging the pendulum of sentencing justice erratically. Therefore, until Parliament speaks, the court cannot be silent. (Hopefully, Section 302 I.P.C. is being amended, at long last, but it is only half-way through as the Rajya Sabha proceedings show. We will revert to it later). 21. Prof. Blackshield, on an analytical study of Indian death sentence decisions, has remarked with unconventional candour: But where life and death are at stake, inconsistencies which are understandable may not be acceptable. 22. His further comments are noteworthy: The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19 and 21. 24. Nor can courts be complacent in the thought that even if they err the clemency power will and does operate to save many a life condemned by the highest court to death. For one thing, the uneven politics of executive clemency is not an unreality when we remember it is often the violent dissenters, patriotic terrorists, desperadoes nurtured by the sub-culture of poverty and neurotics hardened by social neglect, and not the members of the Establishment or conformist class, who get executed through judicial and clemency processes. Executive commutation is no substitute for judicial justice; at best it is administrative policy and at worst pressure-based partiality. In either case, that court self-condemns itself which awards death penalty with a sop to its conscience that the habitual clemency of Government will soften the judicial excess in sentence. If justice under the law justifies the lesser sentence it is abdication of judicial power to inflict the extreme penalty and extraneous to seek consolation in the possible benign interference by the President. The criteria for clemency are ofte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guidelines made, we will consider the criminological foundations of theories of punishment which harmonise with the human rights jurisprudence of our cultural cosmos. Finally, we will set down the salient cynosures for judges in their day-to-day labours. 27. One sentencing aspect which has found prominent place in the Criminal Procedure Code, 1973, but more often ignorantly ignored, needs to be highlighted for future guidance. The cases actually demanding decision, their factual matrices and the actual application of the principles we have formulated to the appeals under consideration are the decisive part of the judgment. 28. The sister Codes-the Indian Penal Code and the Criminal Procedure Code are interwoven into the texture of sentencing. So much so, the various' changes in Section 367 of the Procedure Code, 1898 and its re-incarnation in Section 354 of the Code of 1973 impact on the interpretation of Section 302 of the Penal Code. The art of statutory construction seeks aid from connective tissues, as it were, of complementary enactments. This mode offers a penological synthesis Parliament legislatively intended. From this angle, we may examine the history of the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a by Mrs. Savitry Devi Nigam, was negatived after debate. 34. In 1962, however Resolution moved in the Lok Sabha by Raghu-nath Singh received more serious attention : Lok Sabha Debates, April 21, 1962, Cols. 307. The Resolution was withdrawn, but only after the government had given an undertaking that a transcript of the debate would be forwarded to the Law Commission, for consideration in the context of its review of the Penal Code and the Criminal Procedure Code. The result was a separate Law Commission Report on Capital Punishment, submitted to the government in September, 1967. (supra) 35. At pages 354-55, the Law Commission summarized its main conclusions as follows: It is difficult to rule out that the validity of or the strength behind, many of the arguments for abolition. Nor does the commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. 36. Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 or section 129 of the said Code; or (e) if the murder has been committed by him, while under sentence of imprisonment for life, and such sentence has become final, be punished with death, or imprisonment for life, and shall also be liable to fine (3) Where a person while undergoing sentence of imprisonment for life is sentenced to imprisonment for an offence under Clause (e) of Sub-section (2) such sentence shall run consecutively and not concurrently.(Indian Penal Code (Amendment) Bill, 1972 as passed by Rajya Sabha) 39. Maybe, the fuller and finer flow of the constitutional stream of human dignity and social justice will shape the provision more reformatively. Suffice it to say that the battle against death penalty by parliamentary action is gaining ground and those who do live in the ivory tower-and Judges, hopefully, do not-will take cognizance of this compassionate trend. 40. The inchoate indicators gatherable from the direct reforms of death penalty take us to the next 'neon sign' from the changes in the Procedure Code. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accomplished changes in the Penal Code and the statutory mutation, pregnant with significance, wrought into the procedure Code, definitely drives judicial discretion to a benign destination. The message of the many legislative exercises is that murder will ordinarily be visited only with life imprisonment and it is imperative that death sentence shall not be directed unless there exist "special reasons for such sentence." 43. The era of broad discretion when Jagmohan's case was decided has ended and a chapter of restricted discretion has since been inaugurated. This is a direct response, not merely to the humane call of the Constitution, but also to the wider cultural and criminological transformation of opinion on the futility of the law of 'Life for Life' 'red in tooth and claw'. No longer did judicial discretion depend on vague 'principles'. It became accountable to the strict requirements of Section 354(3) of the 1973 Code. 44. By way of aside, we may note that the consolation that judicial discretion in action is geared to justice is not always true to life. The discretion of a judge is said by Lord Camden to be the law of tyrants: it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge is his philosophy; and if it be dangerous for him to have one, it is at all events less dangerous than the self-deception of having none. THE CODES, THE Constitution AND THE CULTURAL BACKDROP 48. Primarily we seek guidelines from the two Codes, in the omnipresence and omnipotence of the over-arching Constitution. The Indian cultural current also counts and so does our spiritual chemistry, based on divinity in everyone, catalysed by the Buddha-Gandhi compassion. 'Every saint has a past and every sinner a future'-strikes a note of reformatory potential even in the most ghastly crime. This axiom is a vote against 'death' and hope in 'life'. 49. Many humane movements and sublime souls have cultured the higher consciousness of mankind, chased death penalty out of half the globe and changed world view on its morality. We will, in the culminating part of our, judgment, cull great opinions to substantiate this assertion but content here with pointing to their relevance as part of the conspectus, 50. Criminologists have elaborately argued that 'death' has decisively lost the battle as the dominant paradigm and even in our Codes has shrunk into a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a death penalty. Even Ediga Annamma (supra) has hardened here. But 'murder most foul' is not the test, speaking scientifically. The doer may be a patriot, a revolutionary, a weak victim of an overpowering passion who, given better environment, may be a good citizen, a good administrator, a good husband, a great saint. What was Valmiki once? And that sublime spiritual star, Shri Aurobindo, tried once for murder but by history's fortune acquitted. 56. If we go only by the nature of the crime we get derailed by subjective paroxysm. 'Special reasons' must vindicate the sentence and so must be related to why the murderer must be hanged and why life imprisonment will not suffice. Decided cases have not adequately identified the manifold components of comprehensive sentencing. Resultantly, what is regarded as decisive is only relevant and what is equally telling remains untold. For reasons of 'special' grimness may be cancelled by juvenile justice. Brutality of the crime may be mollified at the level of sentencing justice by background of despair. Even a planned barbarity may be induced by an excessive obsession by one who could be a good person under other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of atrocious death sentence merely because there is a murder proved although crying circumstances demand the lesser penalty. To exemplify, supposing a boy of fifteen incited by his elder brothers, chases with them a murderer of their father and after hours of search confronts the villain and vivisects him in blood-thirsty bestiality. Do you hang the boy, blind to his dignity and tenderness intertwined? 61. We mean to illustrate the applicability, not to exhaust the variables. Even here we may make it clear that equality is not to be confounded with flat uniformity. The element of flexibility and choice in the process of adjudicating is precisely what justice requires in many cases. Flexibility permits more compassionate and more sensitive responses to differences which ought to count in applying legal norms, but which get buried in the gross and rounded-off language of rules that are directed at wholesale problems instead of particular disputes. Discretion in this sense allows the individualization of law and permits justice at times to be hand-made instead of mass-produced. 62. In urging that discretion is the "effective individualizing agent of the law". Dean Poun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to survive. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the situation, unless the inherent testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic and deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a bloodthirsty tiger, he has to quit his terrestrial tenancy. Exceptional circumstances, beyond easy visualisation, are needed to fill this bill. 65. To repeat for emphasis, death-corporeal death-is adieu to fundamental rights. Restrictions on fundamental rights are permissible if they are reasonable. Such restriction may reach the extreme state of extinction only if it is so compellingly reasonable to prohibit totally. While sentencing, you cannot be arbitrary since what is arbitrary is per se unequal. 66. As stated earlier you cannot be unusually cruel for that spells arbitrariness and violates Article 14. Douglas, J. made this point clear : Furman v. Georgia 408 U.S. 238 . There is increasing recognition of the fact that the basic theme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r at a conference table, I doubt whether they would be able to evolve agreed formulae as to what constitutes social justice, which is a very controversial field.... In countries with democratic forms of Government public opinion and the law act and react on each other. 72. We may add that in a developing country, in the area of crime and punishment, social justice is to be rationally measured by social defence and geared to developmental goals. 73. Thus, we are transported to the region of effective social defence as a large component of social justice. If the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated. 74. When, then, does a man hold out a terrible and continuing threat to social security in the setting of a developing country? He does so if, by his action, he not only murders but by that offence, poses, a grave peril to societal survival. If society does not survive, individual existence comes to nought. So, one test for impost of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, for, when he comes out of jail, he may kill others. Such an incurable murderer deserves to be executed under the law as it stands. Difficult to imagine though, but even the bizarre may happen. The social setting, the individual factors and like imponderables still remain to be spelt out. While the world is spiralling spiritually towards a society without state sanctioned homicide, a narrow category may under current Indian societal distortions deserve death penalty although realistically the Law is held at bay by corporate criminals killing people through economic, product, environmental and like crimes. 76. Death penalty functionally fails to operate in this area for reasons not relevant to unravel here but theta justice often claims human lives by hanging sentences by a distorted' vision of the penological purposes and results. What we mean is that the retention of death sentence in Section 302 is rigorously restricted to these macro-purposes of social defence, state security and public order. But in practice, purblind application of capital penalty claims victims who should not be hanged at all. The gross misapplication springs from professional innocence of the ideologi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come useful citizens, in a minority of cases, this may not be possible. They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man's dignity and make society more human. (emphasis added) Andrie Sakharov, in a message to the Stockholm Conference on Abolition organised by Amnesty International last year, did put the point more bluntly: I regard the death penalty as a savage and immoral institution which undermines the moral and legal foundations of a society. A State, in the person of its functionaries, who like all people are inclined to making superficial conclusions who like all people are subject to influences, connections, prejudices and egocentric motivations for their behavior, takes upon itself the right to the most terrible and irreversible act-the deprivation of life. Such a State cannot expect an improvement of the moral atmosphere in its country. I reject the notion that the death penalty has any essential deterrent effect on potential offenders. I am convinced that the contrary is true-that savagery begets only sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bal Valley. They had no other recourse except to steal and, if necessary, murder for their survival. The 800 years injustice they suffered can be remedied only by their economic emancipation. Remember, no one is born a criminal. Sarvodaya leaders Jayaprakash Narain and Vinoba Bhave won over dacoits with love, affection and understanding- something sophisticated, automatic weapons failed to do. We have, unfortunately no follow-up study of this experiment. 81. Coming down to unhappy pragmatism, death penalty is permissible only where reformation within a reasonable range, is impossible. The confusion is simple but die-hard. We lawfully murder the murderer, not the murder, by infliction of capital sentence, for which the strictest justification is needed if human dignity assured by the Constitution is not to be judicially dismissed as an expendable luxury. 82. The deduction is inevitable that simply because a murder is brutal, lex talionis must not take over nor humane justice flee. This proposition is tested in a crisis and the court's responsibility is heavy to satisfy itself that the nature of the crime is considered, not for its barbarity as such but for its internal eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sable and payable to the bereaved. 86. The Indian Penal Code fabricated in the imperial foundry well over a century ago has not received anything but cursory parliamentary attention in the light of the higher values of the National Charter which is a testament of social justice. Our Constitution respects the dignity and, therefore, the divinity of the individual and preservation of life, of everyone's life. So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace with constitutional values and the increasing enlightenment of informed public opinion. A nineteenth century text, when applied to twentieth century conditions, cannot be construed by signals from the grave. So, while courts cannot innovate beyond the law, the law cannot be viewed as cavemen's pieces. The penological winds of change, reflected in juristic debates, bills for abolition of death penalty in Parliament and the increasing use of clemency and commutation by the highest Executive, must affect the living law of statutory application. 87. There is yet another consideration of grave moment which must, weigh with the court, vowed to uphold Justice-Social, Economic and Politica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 I.P.C., in action cannot be missed. 91. The tradition-bound agencies of justicing cocooned by judicial precedents reflecting by-gone values make sentencing processes 'soft' where they should be severe and tainted with torture where a healing touch comports with culture. Indeed, the habitual cerebrations of both wings of the profession have been guiltless of the great experiment of injecting the humanism of the National Charter through the interpretative art into criminal statistics. Social justice on the one hand, means social defence from white-collar and kindred criminals not through procrastinating illusions of punishment but instant deterrents to anti-social delinquents and, on the other, Prison Justice, Reforms of offenders, non-institutional strategies through community participation in correction and, above all, sentencing essays which ensure dignity of the individual human decencies and uplifting projects which re-make the criminal into a good citizen. Several of our prison houses and practices make us wonder about institutional criminality and 'punishment' becoming a brand of crime and, worse, a manufacturing process of dehumanized criminals. Prison Refo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storical interest: "After the Abolition Act had been in force for over seven years, the Criminal Law Revision Committee considered whether any further changes in the penalty for murder were desirable. Their conclusions were almost entirely negative." 93. This perspective justifies judicial evolution of a humane penal doctrine because the legislative text is not static; and as Chief Justice Warren wrote in Trop v. Dulles the court 'must draw its meaning from the evolving standards of a maturing society'. The great answer to grave crime is culturing of higher consciousness, removing the pressure of a perverted social order, and nourishing the inner awareness of man's true nature. This is true penal reform, including jail reform. 94. A difficult category which defies easy solution, even in the developmental-social justice background, is the political or ideological murderer. Where freedom of faith and conscience is affirmed, as in our Constitution, where concentration of wealth and ethnic and social suppression are anathema and egalitarian-cum-distributive justice are positive goals, 'criminals' motivated by the fundamental creed of our Constitution may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are required to examine the validity of a pre Constitution statute in the context of the modern reformist theory of punishment, jail being treated as a correctional institution" "Cases are not unknown where merely on account of a long lapse of time the Courts have commuted the sentence of death to one of life imprisonment on the sole ground that the prisoner was for a long time hovering under the tormenting effect of the shadow of death. The scheme of the Code, read in the light of the Constitution, leaves no room for doubt that reformation, not retribution, is the sentencing lode-star. (emphasis added) 2. The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea. 3. The current ethos, with its strong emphasis on human rights and against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution. 4. The personal and social, the motivational and physical circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law, like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence. 8. When an environmental technologist, food and drug chemist or engine manufacturer intentionally acts in the process, abetted by the top decision-makers in the corporation concerned, in such manner that the consumer will in all probability die but is kept wilfully in the dark about the deadly consequence by glittering advertisement or suppressio veri, he deserves death penalty for society's survival, if he fulfils the elements of murder. Maybe, a re-definition of murder may be neede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependent on the totality of circumstances. 10. We must always have the brooding thought that there is a divinity in every man and that none is beyond redemption. But death penalty, still on our Code, is the last step in a narrow category where, within a reasonable spell, the murderer is not likely to be cured and tends to murder others, even within the prison or immediately on release, if left alive-a king cobra which, by chronic habit, knows only to sting to death unless defanged if possible. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being. The extreme penalty can be invoked only in extreme situations. 100. The criminology of higher consciousness claims that by expanding Inner awareness through meditational and yogic techniques the worst offender can be reformed, if prisons can funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down without provocation and although the courts below had concurrently inflicted death sentence, a Bench of three judges confining the focus on sentence alone commuted the punishment. The crucial role of young age (in his twenties) and a trace of mental imbalance in robbing the propriety of a death impost even from such a ghastly case of tripe murder was emphasised. This Court's observations on the sensitive attitude to sentencing and the wide spectrums of considerations under Section 354(3) Cr.P.C. are helpful here: The plurality of factors bearing on the crime and the doer of the crime must carefully enter the judicial verdict. The winds of penological reform notwithstanding, the prescription in Section 302 binds the death penalty is still permissible in the punitive pharmacopoeia of India. Even so, the current of precedents and the relevant catena of clement facts, personal, social and other, persuade us to hold that even as in Nanu Ram v. State of Assam 1975CriLJ646 the lesser penalty of life imprisonment will be a more appropriate punishment here. A brief word about Lalla Singh 1978CriLJ359 at 374. That was a case of murder of three persons and the head of one of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in Chapter XVIII. After the prosecution evidence is complete and the accused is called upon to enter the defence and if evidence is led on behalf of defence, after the defence evidence is complete, the Court should hear arguments of the Prosecutor and the advocate on behalf of the accused (see Section 234). 109. Thereafter comes Section 235 which obligates the Court to give a judgment. The question of sentence does not enter the verdict or consideration at this stage. If the accused is to be acquitted, the matter ends there. If the Court, upon consideration of the evidence led before it, holds the accused guilty of any offence it must pronounce judgment to the extent that it holds accused guilty of a certain offence. Thereafter a statutory duty is cast upon the Court to hear the accused on the question of sentence. Sub-section (2) obligates the Court to hear the accused on the question of sentence. In fact, this provision should be construed to mean that where the Court has to choose one or the other sentence and if with a view to inflicting a certain sentence, special reasons are required to be recorded, obviously the State which is the prosecutor, must be called upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned. The discretion still left, in our view, must be guided by the mariner's compass we have supplied in this Judgment. THE FACTS AND CONCLUSIONS 114. Having stated the law at length, we have to apply it to the facts of the cases, which we proceed to state. After all, "Let the facts be known as they are, and the law will sprout from the seed and turn its branches towards the light".Benjamin Nathan Cardozo "What Medicine Can Do For Law"Address before the New York Academy of Medicine Nov.1,1928. We may now state the facts needed for the application of the principles set out above. RAJENDRA PRASAD'S CASE 115. A long-standing family feud, with years-long roots, let to a tragic murder. The houses of Ram Bharosey and Pyarelal had fallen out and periodic fuelling of the feud was furnished by the kidnapping of a wife, the stabbing of a brother and the like. Lok Adalats of village elders brought about truce, not peace. The next flare-up was a murder by the appellant, a rash son of one of the feuding elders Pyarelal. He was sentenced to life imprisonment (which means no reformation but hardening process, since our jails are innocent of carefully designed progr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for long years behind stone walls and iron bars, with drills of breaking the morale, will not change the prisoner for the better Recidivism is an index of prison failure, in most cases. Any way, Rajendra showed no incurable disposition to violent outbursts against his fellow-men. We see no special reason, to hang him out of corporeal existence. But while awarding him life imprisonment instead, we direct for him mental-moral healing courses through suitable work, acceptable meditational techniques and psychotherapic drills to regain his humanity and dignity. Prisons are not human warehouses but humane retrieval homes. 119. Even going by precedents like Lalla Singh (supra) this convict has had the hanging agony hanging over his head since 1973, with near-solitary confinement to boot. He must, by now, be more a vegetable than a person and hanging a vegetable is not death penalty. This is an additional ground for our reduction. THE KUNJUKUNJU CASE 120. The next case is no different in the result but very different on the facts. The scenario is the usual sex triangle, terribly perverted. One randy Janardanan-the appellant-with a wife and two children, developed sex relations with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the side of severity. It was urged that this appellant was only 17, 18 years old and so in view of the ruling of the Supreme Court in Harnam v. State 1976CriLJ1642 he should not' be sentenced to death. In the first place, the note of learned Session's Judge on his statement shows that he was 19, 20 years old and he had understated his age. Secondly, I doubt that the observation of the Supreme Court in the said case can be applicable to such a case of triple murder, where such victim is deliberately stabbed in the chest. The whole reasoning crumbles on a gentle probe. A thumbnail sketch of the case is that the appellant, his father and his brother were angrily dissatisfied with a family partition and, on the tragic day, flung the vessels over the division of which the wrangle arose, went inside the house, emerged armed, picked up an altercation eventuating in the young man (whose age was around 18 or 20) stabbing to death three members of the other branch of the family. He chased and killed, excited by the perverted sense of injustice at the partition. It is illegal to award capital sentence without considering the correctional possibilities inside prison. Anger, even ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e list. In this view, we are satisfied that the appellant has not received reasonable consideration oh the question of the appropriate sentence. The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment. A family feud, an altercation, a sudden passion, although attended with extra-ordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence-these catena of circumstances tearing on the offender call for the lesser sentence. 127. It is apt to notice in this context that even on a traditional approach this is not a case for death sentence, if we are to be belighted by the guidelines in Carlose John v. State of Kerala 1974CriLJ796 . The murder there was brutal but the act was committed while the accused were in a grip of emotional stress. This was regarded as persuasive enough, in the background of the case, to avoid the extreme penalty. The ruling in Kartar Singh v. State of Punjab AIR1977SC349 related to a case of brutal murder and of hired murderers with planning of the criminal project. In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the power, but as well as the duty to interfere if it considers that the appellant should be sentenced 'differently', that is, to set aside the sentence of death and substitute in its place the sentence of imprisonment for life, where it considers, taking the case as a whole, the sentence of death to be erroneous, excessive or indicative of an improper exercise of discretion; but at the same time, the Court must impose some limitations on itself in the exercise of this broad power. In dealing with a sentence which has been made the subject of an appeal, the Court will interfere with a sentence only where it is 'erroneous in principle'. The question, therefore, in each case is whether there is an 'error of principle' involved. 134. The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime. Mere compassionate sentiments of a humane feeling cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life. In awarding sentence, the Court must, as it should, concern itself with justice, that is, with unswerving obedience to established la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application, the death penalty contradicts the very sanctity of life which all human society claims to hold among the highest values. He tells us that almost all civilised countries have abolished it as a symbol of their respect for human life, and expresses deep anguish that we, in our country, still cling to it with little regard to the basic rights of the man. 139. I fully reciprocate the feelings of my learned brother Krishna Iyer J. in so far as he speaks of the barbarity involved in killing of patriots who have sacrificed their lives in the country's struggle for freedom. The citizen's right, to life and personal liberty are guaranteed by Article 21 of the Constitution irrespective of his political beliefs, class, creed or religion. The Constitution has, by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty. The idealistic considerations as to the inherent worth and dignity of man is a fundamental and pervasive theme of the Constitution, to guard against the execution of a citizen for his political beliefs. 140. I, however, must enter a dissent when my learned brother Krishna Iyer J. tries to equate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that imposition of a death sentence in a case outside the categories indicated would be constitutionally invalid, is merely an expression of his personal views. As Judges we are not concerned with the morals or ethics of a punishment. It is but our duty to administer the law as it is and not to say what it should be. It is not the intention of this Court to curtail the scope of the death sentence under Section 302 by a process of judicial construction inspired by our personal views. The question whether the scope of the death sentence should be curtailed or not, is one for the Parliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, therefore, properly the domain of the legislature, not the judiciary 144. Two propositions, I think, can be stated at the very outset: (1) It is constitutionally and legally impermissible for this Court while hearing an appeal by special leave under Article 136 of the Constitution, on a question of sentence, to re-structure Section 302 of the Indian Penal Code, 1860 or Section 354, Sub-section (3) of the CrPC, 1973, so as to limit the scope of the sentence of death provided for the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he said: As for what is called the failure of death sentence, who is able to judge that. We partly know who those are whom it has not deterred; but who is there who knows whom it has deterred, or how many human beings saved who should have lived. Mill felt that the probability of an innocent person's suffering the death penalty was very slight indeed. Judges and juries would let the guilty escape before the innocent would suffer. If there were the slightest doubt of a man's innocence the death sentence would not be imposed or carried out. 150. Sir Henry Maine, the English legal historian, observed that punishment evolved from social necessity. The concept of punishment as a form of expiation or atonement reaches far back into human nature as well as into human history. The notion that the threat of punishment by the State will restrain the potential criminal is one of the most commonly accepted justifications for it. The idea has a philosophical basis in the utilitarians' concept of the rational man acting upon a deliberate calculation of possible losses and gains. If men choose rationally among possible future courses of action then surely the likelihood of a cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erally agreed that, though reform of the criminal law ought sometimes to give a lead to public opinion, it is dangerous to move too far in advance of it. 153. The movement to abolish death penalty started with the humanitarian doctrine evolved by Marchese De Cesars Bonesana Beccaria, Italian publicist. In 1764, Bonesana published the famous little treaties Dei Delitti e della Pene Beccaria-Bonesana:An Essay on crimes and punishment ,Academic Reprints,Stanford,California,1953. The French translation contained an anonymous preface by Voltaire. In the preface to this book first appeared the phrase "the greatest happiness of the greatest number". It advocated the prevention of crime rather than punishment, and promptness in punishment, where punishment was inevitable; above all it condemned confiscation, capital punishment, and torture. Beccaria's ideas directly influenced the reforming activities of many social thinkers and philosophers. This represented a school of doctrine, born of the new humanitarian impulse of the Eighteenth Century with which Rousseau, Voltaire and Montesquieu in France and Bentham in England were associated, which came afterwards to be known as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chool of the revolutionary period in France, which modified Beccaria's rigorous doctrine by insisting on the recognition of the varying degrees of moral, and therefore, legal responsibility. Its fundamental doctrine is that the criminal is doomed by his inherited traits to a criminal career and is, therefore, a wholly irresponsible actor. Society must, of course, protect itself against him, but to punish him as if he were a free moral agent is as irrational as it is unethical. 158. In his 'Introduction to Principles of Morals and Legislation', the great work in which the English philosopher and jurist, Jeremy Bentham was engaged for many years, was published in 1789. Mankind, he said, was governed by two sovereign motives-pain and pleasure, and the principle of utility recognised this subjection. The object of all legislation must be the "greatest happiness of the greatest number". On the legal side, he deduced from the principle of utility that since all punishment is itself evil it ought only to be admitted "so far as it promises to exclude some greater evil". 159. The English social reformer, Sir Samuel Romilly devoted himself primarily to refor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te condemnation. It both satisfies and educates the public conscience; for those in authority thus deepen in themselves and diffuse throughout the community their sense of "the wickedness of wickedness, the criminality of crime". It is an outward and visible sign of the utmost imaginable disgrace. The death penalty has signified shame and infamy and has generally been understood to do so; and all this is expressed in symbolic action of a kind that is both spontaneous and calculated to arrest attention. 162. If the appeal of capital punishment were merely to fear of death, it would be a very inefficient protector of society. In civilized society and in peacetime, government relies for obedience more on its moral prestige than on violent repression of crime. Punishment only protects life effectively if it produces in possible murderers, not only fear of the consequences of committing murder, but a horrified recoil from the thing itself. It can only achieve this, more ambitious, task, if sentence of death is felt to embody society's strongest condemnation of murder and keenest sense of its intolerable wickedness. It is not by the fear of death but by exciting in the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The problem, of course, has been to discover how to do it. Theories of rehabilitation are largely speculative, since there is lack of scientific evidence to support them. Nevertheless, it has been influential in the development of modern penology. 166. In England, during the Nineteenth Century, Disraeli and Gladstone, the leading politicians in the country, took no part in the movement to abolish the death penalty. Leadership in this crusade fell to lesser men, and the abolitionists formed a distinct minority. The majority in the House of Commons evidently felt, as Sir John Holkar, the Attorney General felt, that criminals were deterred from adding deliberate murder to their other crimes by the fear of the death penalty. In the period between the first and second world wars, however, the emergence of authoritarian systems of penal law raised once more the problem of capital punishment in a particularly acute manner. At the end of the second world war, there was a renewed upsurge of this humanitarian tendency which, like the desire to safeguard human rights and human dignity, had been the mainspring of the movement for the abolition of the death penalty. 167. Several attempts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Report, p. 18 para 53 should reflect adequately the revulsion felt for the gravest of crimes by the great majority of citizens. But, in saying this, he implied that legislators and Judges share this revulsion themselves; otherwise indeed their action would be morally indefensible. Their aim then should be, not only to strike terror nor even to awaken popular indignation in a direction convenient to Government. It would be to arouse in all and sundry their own indignant repudiation of a wicked act and, at the same time, to deepen it in themselves. In this vein, sentence of death has been pronounced, carried out and acclaimed, with stern satisfaction. This principle of action is still avowed in high places, and, I believe, it is semi-consciously at work more often than it is avowed, for it is said that otherwise, the conscience of the community would be revolted if the criminal were allowed to live. In the same, vein, Lord Chief Justice Goddard said in 1948 : Hansard (House of Lords), Vol. 155, p. 492. The public conscience will not tolerate that persons who deliberately condemn others to painful, and it may be lingering, deaths should be allowed to live.... Some of these bestial m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed responsibility". 175. By Section 7 the Act abolished the liability to suffer the death penalty on conviction of murder and substituted the sentence of imprisonment for life by Section 9, Sub-section (1) except in cases Of first degree murders falling within Section 5 or Section 6. Section 5 reserved the death penalty for five classes of first degree murders, namely: (i) any murder done in the course or furtherance of theft; (ii) any murder by shooting or by causing an explosion; (iii) any murder done in the course or for the purpose of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody; (iv) any murder of a police officer acting in the execution of his duty or of a person assisting a police officer so acting; and (v) in the case of a person who was a prisoner at the time when he did or was a party to the murder, any murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting. 176. Sub-section (2) of Section 5 provided for death penalty on the principal assailant and not his accessories before the fact, where a group of persons made a murd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the offence was committed (Children and Young Persons Act 1933) Section 53(1). 180. The successful campaign to abolish the death penalty in Britain has been achieved in a comparatively short period of time by no more than a handful ardent penal reformers like Sydney Silverman, who carried out the unfinished work of Romilly and other reformers, pertinacious in their lobbying and propaganda in the face of majority opinion favouring retention of an admittedly barbaric but, to that majority, necessary penal instrument. If the final debates were protracted-Silverman's private members' Bill (with invaluable legislative time given by the Government) was introduced on December 4, 1964, and reached the Statute Book only on November 2, 1965-the history of the campaign is a remarkable testament to British democracy which can convert convinced minority opinion into progressive legislative action. 181. Due to an increase in the incidence of criminal behavior, and steady rise in the volume of reported crime, there is a genuine public concern in Britain for re-assessment of the penal policy of the Government. 182. D.A. Thomas in his article "Development in Sentencing 1964-197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the statutory exemption from death penalty under Section 29(1) of the Juveniles Law was not applicable, observed that the time for ascertaining whether the appellants were to be treated as Juveniles was the date on which the sentence was passed and not the date of the offence. As to the constitutional issue, the Judicial Committee held that when a person was held guilty of a charge of murder, the death sentence passed on him cannot be treated as a contravention of Section 20(7) of the Constitution of Jamaica, stating: One's opinion as to whether the consequences of giving effect to the Sub-section would be irrational or unjust is inevitably coloured by whether one starts with the belief that capital punishment should be abolished for all offences except, perhaps, for treason-a view accepted by the legislature, if not by public opinion in general, in the United Kingdom; or with the contrary belief that capital punishment is normally the appropriate penalty for murder-a view which the continuance in force of Section 2 of the Offences against the Person Law suggests is accepted by the legislature in Jamaica. 186. In de Freitas case the Privy Council confirmed the sentence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly unacceptable" and "excessive" and thus violative of the Eighth Amendment. 189. In the United States of America, the death penalty has paradoxically existed more or less harmoniously with humane theories of criminal justice for over two hundred years. The Eighth Amendment prohibits 'cruel and unusual punishment'. 190. The Eighth Amendment's ban on cruel and unusual punishment has raised some very difficult moral issues. The Supreme Court applied various standards in interpreting the provision. In Trop v. Dulles [1958] 356 US 86 : 2 L.Ed. 630 the Court by a majority of five to four, refused to consider "the death penalty as an index of the constitutional limit on punishment", stating: Whatever the arguments may be against capital punishment...the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept or crualty. 191. Chief Justice Warren, speaking for Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Whittakar, asserted that: this Court has had little occasion to give precise content to the Eighth Amendment", that its conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le opinions did not rule out altogether re-imposition of the death penalty in the future provided there was legislative structuring of a permissible system providing for sufficient procedural safeguards. This is exactly what has happened in the United States where the death penalty has been re-imposed and the judicial approach stands re-oriented. 195. Broadly stated, Mr. Justice Douglas, Mr. Justice Stewart and Mr. Justice White held that the death Penalty as imposed, is arbitrarily and infrequently meted out, in violation of the Eighth and the Fourteenth Amendments. They took an analytic and empirical approach, appraising the practice under the Eighth Amendment in the light of due process and equal protection. Their concern was whether the death penalty was evenly applied, and of course they found that it was not. This is reflected in the opinion of Mr. Justice Douglas who held that the death penalty was cruel and unusual because applied irregularly and "selectively to minorities whose members are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h penalty was essentially based on procedural grounds, as the majority agreed that the arbitrary infliction of the death penalty was unconstitutional, Burger contends that the Eighth Amendment does not deal with procedure, and with only the substantive nature of the punishment in question. He believes that the imposition of a mandatory death penalty for certain offences would not be invalidated by the holding in this case because a mandatory penalty could not be arbitrarily meted out. 201. Mr. Justice Powell dissented by establishing that the constitutionality of the death penalty is supported by four factors, viz., (i) the references to capital punishment in the Constitution, (ii) the past Supreme Court decisions on the death penalty, (iii) the limitation of judicial restraint, and (iv) the doctrine of separation of powers. He found that the evidence of the petitioners fell short of satisfying their burdens of persuasion with respect to these factOrs. M.Cherif Bassiouni:Substantive Criminal Law, pp.120-26.. 202. Due to the ambiguity of the Furman decision, it is fortunate that the Supreme Court gave further indication of its intentions regarding the death penalty in subsequent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same conclusion, that the punishment of death did not invariably violate the Constitution. 206. The Court's reasons in Gregg as to why the death sentence was not a per se violation of the Eighth and Fourteenth amendments were as follows: First, history and precedent do not support the conclusion that the death sentence is a per se violation. Second, the evolving standards of decency argument has been substantially undercut in the last four years because a large segment of the enlightened population regards the death penalty as appropriate and necessary, as seen in the new legislation passed in response to Funnan. 207. The Court came to the conclusion that the death penalty was not inherently cruel and unusual. It served two principal social purposes, retribution and deterrence, and held that the death sentence for the crime of murder was (1) not without justification, (2) not unconstitutionally severe, and (3) not invariably disproportionate to the crime. 208. The Court found that Furman mandated, where discretionary sentencing was used there must be suitable direction and limitation to minimise the risk of wholly arbitrary and capricious action. The bifurcated trial wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the substantive merits of the cases for and against the death penalty for murder. It is in my view, essentially, a question for the Parliament to resolve and not for this Court to decide. 211. I feel that it is futile for us to attempt to project our personal views in a matter which lies in the realm of political decision-making, by focussing on a single controversy, the question of the proper penalty for the crime of murder. The capital punishment controversy falls within the strict limits of 'independent' parliamentary law-making, and is a typical or representative of the kind of problems that leaders of Parliament face every day. In short, the case for abolition of the death sentence is political, not constitutional. The Government carries the responsibility of law and order. That is the first and fundamental duty of any Government. The Executive has the duty of advising the Government of the laws it believes necessary for the national well-being. It is the duty of the courts, including this Court, to administer the laws as they are. 212. The Law Commission, in its Thirty-fifth Report has dealt with the question of abolition of capital punishment, of limiting the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here are reasons for imposing the penalty of death, but whether there are reasons for abstaining from doing so. The reason probably was that this provision was not more than the restatement of the law as it stood in England at that time, where till the year 1965 the only penalty for murder was death, except in two specific cases. 215. The effect of the Criminal Procedure Code (Amendment) Act, 1955, which repealed Section 367, Sub-section (5) of the Code with effect from January 1, 1956, was to restore to the Court the discretion conferred by Section 302 to award the appropriate sentence having regard to the attendant circumstances, including the mitigating circumstances, if any. This brought the law into conformity with the intentions of the framers of the Code. As regards the death sentence, far from making it the normal sentence for an offence of murder, they stated that it ought to be 'sparingly used'. Under Section 354, Sub-section (3) of the CrPC, 1973, the law is now entirely changed. 216. Under Section 354, Sub-section (3) of the CrPC, 1973, the Court is required to state the reasons for a sentence awarded, and in the case of imposition of a sentence of death and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence. 219. Failing the appeal, there is the President's power to grant reprieve and pardon under Article 72(1), as well as the Governor's power of commutation under Article 161 of the Constitution which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment. All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve, and the power to commute a death sentence is freely exercised, whenever there is some doubt as to the severity of the punishment. Under the present system the prerogative of Mercy in the case of persons under sentence of death works well and it produces results generally regarded as satisfactory. It helps in mitigating the rigour of the death sentence, particularly in case of those murderers whose execution would offend the public conscience. Very few persons under a sentence of death-may be one or two in a year, in a State are usually executed. Such cases are usually of the kind indicated by me above, and even some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce whose extinction becomes necessary for society's survival. Supposing a murderous band of armed dacoits intentionally derails a train and large number of people die in consequence, if the ingredients of murder are present and the object is to commit robbery inside the train, they practise social injustice and imperil social security to a degree that death penalty becomes a necessity if the crime is proved beyond doubt. There may be marginal exceptions or special extenuations but none where this kind of dacoity or robbery coupled with murder becomes a contagion and occupation, and social security is so gravely imperiled that the fundamental rights of the defendant become a deadly instrument whereby many are wiped out and terror strikes community life. Then he 'reasonably' forfeits his fundamental rights and takes leave of life under the law. The style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death on a macro scale to make a flood of profit. The definition of murder will often apply to them. But because of corporate power such murderous depredations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th murder inside the train. He is a menace to the society and deserves a death sentence, as his existence does not conform to the national well-being. Like-wise, a person who indulges in theft or illegal trade and export of art treasures such as invaluable monuments, paintings and sculptures of historical importance and of priceless antiques of what remains of our national heritage, or in adulteration of articles of food meant for human consumption, or in manufacturing and selling of spurious drugs, or engages in illegal sale in narcotics or alcohol, which are injurious to the very life of the community, also deserves a death sentence, as in many other countries, or at any rate a sentence of imprisonment for life. The same applies to economic offences which may disrupt the economic life of the community as a whole, like smuggling of gold and other contraband goods, which call for a very deterrent punishment. This is necessary to protect the basic economic order of the nation. But these are all matters for the Parliament to decide. 224. It may be stated that the State of West Bengal has taken a step forward in that direction. The Prevention of Adulteration of Food, Drugs and Cosmet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceptional depravity. The Bill is not before the Court. It is, therefore, not proper to deal with it. 229. It is, however, necessary to emphasise that if there has to be a law reform at all, some regard must be had to the plight of the victim or his or her family by making provision for payment of compensation. While it is commonly accepted that those convicted of violations of the criminal law must "pay their debt to society", little emphasis is placed upon requiring offenders to "pay their debt" to their victims. These again are matters for the Parliament to provide. 230. From a life time of experience, Sir John Beaumont, speaking with unrivalled authority, told the Royal Commission on Capital Punishment Royal Commission Report pp.191-93 that the alternative sentence under Section 302 of the Indian Penal Code 1860 had "worked well" in India, and that he had never himself felt that the responsibility of choosing between the sentence of death and a lesser punishment was unfair or excessive, nor had he ever heard any Judge in India express such a feeling. He expressed the opinion that there was "no class of offences in which the degree of moral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suddenly appeared and dealt several blows with the knife on vital parts of the body of Rambharosay but Rambharosay released himself from his grip and ran inside his house and bolted the door. The accused chased him all the way with the Wood-stained knife and knocked at the door asking him to open it. Meanwhile, the deceased Mansukh came and tried to entreat the accused not to assault Rambharosay. Thereupon the accused struck deceased Mansukh, who tried to escape, but the accused chased him over a distance of 200 to 250 feet and inflicted repeated knife blows on the deceased resulting in his death. The deceased was done to death by the accused merely because he tried to prevent him from assaulting Rambharosay. 235. Not only there are no mitigating circumstances but this was a preplanned, cold-blooded murder. While Rajendra was in jail, his family members used to wield out a threat that the members of the family of Rambharosay would be dealt with after Rajendra is released from jail.236. The case of this accused is destructive of the theory of reformation. The 'therapeutic touch' which it is said is the best way of preventing repetition of the offence has been of no avail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d then partitioned. Smt. Vidyawati, widow of Narottam, in fact, in trying to pacify her brother-in-law Purushottam, brought out one batauli and the remaining two were taken out by Chandra Shekhar. It all happened over the act of Chandra Shekher in flinging the two batauli on the ground which collided making a sound showing his resentment. The expression of resentment implicit in the gesture of Chandra Shekhar infuriated the accused Sheo Shankar to such an extent that he committed the three murders in a row. These were nothing but first-degree murders. 241. The weapon used by the accused in committing the crime, the manner in which the operation was carried out, and the determination with which the accused acted, as well as the number of injuries inflicted on the unfortunate victims, give a clear picture of the cruelty and brutality with which the accused murdered his uncle and his two sons. He first inflicted a knife blow on his uncle Narottam Dubey who tried to run away and as he turned, the accused dealt him another knife blow resulting in his death on the spot. Narottam Dubey, it appears, attempted his best to escape. Even after he had sustained bleeding injuries at the hands o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
