Harnam Vs. State of U.P [1975] INSC
261 (10 October 1975)
BHAGWATI, P.N.
BHAGWATI, P.N.
SARKARIA, RANJIT SINGH
CITATION: 1976 AIR 2071 1976 SCR (2) 274 1976
SCC (1) 163
CITATOR INFO :
F 1977 SC1822 (1) R 1977 SC2094 (2) RF 1979
SC 916 (105)
ACT:
Penal Code-Murder-Sentence to be
impossed-Life imprisonment-Capital punishment-When could be imposed.
HEADNOTE:
The legislative history in regard to the
subject of capital punishment shows that there has been a significant change in
thinking and approach Since India became free.
Prior to the amendment of s. 367(5) of the
Code of Criminal Procedure by Act 26 of 1955, the normal rule was to impose
sentence of death on a person convicted for murder and if a lesser sentence was
to be imposed, the Court was required to record reasons in writing. But by Act
26 of 1955, this provision in s. 367(5) was omitted with the result that the
Court became free to award either death sentence or life imprisonment, and no
longer was death sentence the rule and life imprisonment the exception. Then
again a further progress was made in the same direction by s. 354(3) of the
Criminal Procedure Code, 1973. That section provides that when the conviction
is for an offence punishable with death or in the alternative with imprisonment
for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded and, in the case of sentence of death, the
special reasons for such sentence.
The unmistakable shift in the legislative
emphasis is that for murder, life imprisonment should be the rule and capital
punishment the exception to be resorted to only for special reasons. It is only
where, in view of the peculiar facts and circumstances, there are special
reasons that the death sentence may be awarded: otherwise life sentence offence
would certinly be "too young." [277G; E, F] The seminal trends in
current sociological thinking and penal strategy tempered as they are by
humanistic attitude and deep concern for the worth of the human person, frown
upon death penalty and regard it as cruel and savage punishment to be inflicted
only in exceptional cases. [276G] In the instant case the appellant was charged
with an offence of murder by severing the head of the deceased from the body
and then carrying it away in a most brutal and inhuman manner. The trial court
convicted and sentenced him to death. Both the conviction and sentence were
upheld by the High Court.
On the question of sentence, Allowing the
appeal to this Court,
HELD: The appellant was just around 16 years
of age at the time when he committed the offence and, therefore, he would be
entitled to the clemency of penal justice. It would not be appropriate to
impose the extreme penalty of death.
Taking into account the current sociological
and juristic thinking as could be seen from the recommendation of the Law
Commission which appears to have been incorporated in the Indian Penal Code
(Amendment) Bill 1972, it would be legitimate for the Court to refuse to impose
death sentence on an accused convicted of murder, if it finds that at the time
of the commission of the offence the appellant was under 18 years of age. A
murderer who is below 18 years of age at the time of commission of the offence
would certainly be "too young." [277G; E, F] E. Anamma v. State of
Andhra Pradesh, A.I.R. 1974 S.C.
799, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.
277 of 1974.
Appeal by Special Leave from the Judgment and
order dated the 22nd February, 1974 of the Allahabad High Court Lucknow Bench
in Criminal Appeal No. 498 of 1973 and Capital Sentence No. 13 of 1973.
A. N. Mulla and N. S. Das Behal for the
appellant.
O. P. Rana for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.-This appeal, by special leave, is limited only to the question of
sentence. The appellant has been sentenced to death for an offence under s. 302
of the Penal Code. The question is: Should the extreme penalty of death be
commuted to one of life imprisonment? To answer the question it is necessary to
state a few facts.
The appellant and a few others were tried in
the Court of the Sessions Judge, Unnao for offences under s. 148 and s. 302
read with s. 149 of the Indian Penal Code. The learned Sessions Judge, on an
appreciation of the evidence, found that the appellant, Sheo Dayal, Mihi Lal,
Dularey and Mewa Lal had formed an unlawful assembly and in pursuance of its
common object, the appellant had intentionally caused the death of one Ram
Kumar by inflicting on him a severe injury with a bank severing his head from
the body and then carried away the head in an angaucha in a most brutal and
inhuman fashion. On this finding, the learned Sessions Judge convicted the
appellant, Sheo Dayal, Mihi Lal, Dularey and Mewa Lal of offences under s. 148
and s. 302 read with s.
149 and sentenced each of them to rigorous
imprisonment for one fear for the former offence and to death for the latter.
The appellant, Sheo Dayal, Mihi Lal, Dularey
and Mewa Lal preferred an appeal to the High Court against the order of conviction
and sentence recorded against them and their case was also referred to the High
Court for confirmation of the death sentence. The High Court agreed with the
findings reached by the learned Sessions Judge and confirmed the conviction of
Sheo Dayal, Mini Lal, Dularey and Mewa Lal under s. 148 and s. 302 read with s.
149, but reduced their sentence to one of life imprisonment for the offence
under s. 302 read with s. 149 and so far as the appellant was concerned, the
conviction was converted to one under s. 302 and the sentence of death was
maintained. The appellant thereupon preferred an application for special leave
and on that application, special leave was granted by this Court limited only
to the question of sentence.
Now, there can be no doubt that the crime
committed by the appellant was a most reprehensible and heinous crime which disclosed
brutality and callousness to human life and no extenuating circumstances could
be pointed out on behalf of the appellant which would assuage the conscience of
the Court and persuade it not to inflict the extreme penalty of death on the
appellant. The only circumstance on which reliance could be placed on behalf of
the appellant for mitigating the rigour of the punishment to be inflicted on
him was his tender age at the time of the commission of the offence. The record
of the case shows that the appellant was about sixteen years of age at the time
when he committed this brutal crime. The question is : whether this could be
regarded as a valid circumstance for invoking the clemency of penal justice?
The legislative history in regard to the subject of capital punishment shows
that there has been significant change in thinking and approach since India
became free.
Prior to the amendment of s. 367(5) of the Code
of Criminal Procedure by Act 26 of 1955, the normal rule was to impose sentence
of death on a person convicted for murder and, if a lesser sentence was to be
imposed, the Court was required to record reasons in writing. But by Act 26 of
1955 this provision in s. 367(5) was omitted, with the result that the Court
became free to award either death sentence or life imprisonment and no longer
was death sentence the rule and life imprisonment the exception. Then again a
further progress was made in the same direction by s. 354(3) of the Criminal
Procedure Code, 1973. That section provides that when the conviction is for an
offence punishable with death or, in the alternative, with imprisonment for
life or imprisonment for a term of years, the judgment shall state the reasons
for the sentence awarded, and, in the case of sentence or death, the special
reasons for such sentence. It will be seen that the unmistakable shift in the
legislative emphasis is that for murder, life imprisonment should be the rule
and capital punishment the exception to be resorted to only for special
reasons. It is only where, in view of the peculiar facts and circumstances,
there are special reasons that death sentence may be awarded : otherwise life
sentence should be the ordinary rule. This legislative provision in the new
Code of Criminal Procedure clearly shows, as pointed out by Krishna Iyer, J.,
in E. Anamma v. State of Andhra Pradesh(1), "that the disturbed conscience
of the State on the vexed question of legal threat to life by way of death
sentence has sought to express itself legislatively, the stream of tendency
being towards cautious, partial abolition and a retreat from total
retention." The seminal trends in current sociological thinking and penal
strategy, tampered as they are by humanistic attitude and deep concern for the
worth of the human person frown upon death penalty and regard it as cruel and
savage punishment to be inflicted only in exceptional cases. It is against this
background of legislative thinking which reflects the social mood and realities
and the direction of the penal and processual laws that we have to consider
whether the tender age of an accused is a factor contraindicative of death
penalty.
277 The Law Commission, in the 35th Report
made by it on capital punishment fully considered whether the Indian Penal Code
should specify the minimum age of the offender who can be sentenced to death,
and after examining the position under the Children's Acts of various States it
expressed the following opinion :
"We feel that, having regard to the need
for uniformity, to the views expressed on the subject, and to the consideration
that a person under 18 can be regarded as intellectually immature, there is a
fairly strong case for adopting the age of 18 as the minimum for death
sentence. we are aware that cases will occasionally arise where a person under
18 is found guilty of a reprehensible killing, or, conversely, a person above
18 is found to be immature and not deserving of the highest punishment. A line
has, however, to be drawn somewhere and we think that 18 can be adopted without
undue risk.
We, therefore recommend that a person who is
under the age of 18 years at the time of the commission of the offence should
not be sentenced to death. A provision to that effect can be conveniently
inserted in the Indian Penal Code as section 558." The Law Commission in
its 42nd Report on the Indian Penal Code agreed with this recommendation of the
previous Law Commission vide paragraph 3.34 of the 42nd Report of the Law Commission.
The Central Government appears to have accepted this recommendation and a
provision to that effect is to be found in the Indian Penal Code (Amendment)
Bill, 1972. This being the current sociological and juristic thinking on the
subject, it would be legitimate for the Court to refuse to impose death
sentence on an accused convicted of murder if it finds that at the time of
commission of the offence he was under 18 years of age. Krishna Iyer, J., also
pointed out in E. Anamma v. State of Andhra Pradesh (supra) that "where
the murderer is too young-the elemency of penal justice helps him", and a
murderer who is below 18 years age at the time of the commission of the offence
would certainly be "too young".
The appellant in the present case was, as pointed
out above, just around 16 years of age at the time when he committed the
offence and, therefore, in the light of the above discussion he would be
entitled to the elemency of penal justice and it would not be appropriate to
impose the extreme penalty of death on him. We accordingly commute the sentence
of death imposed on the appellant and convert it to one of life imprisonment.
P.B.R. Appeal allowed and sentence reduced.
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