Report No. 35
Detailed Consideration of Offences
Topic Number 27
Replies to question No. 3(a)
373. One1 of the questions put in the Questionaire, was as follows:-
"Would you like to retain the sentence of death for all or any of the offences under the Indian Penal Code which are at present punishable with death?"
(The object behind putting this question was to elicit the opinions of those who, while favouring retention of capital punishment, would still like it to be abolished for certain offences, or of those, who, while favouring its abolition in general, would still like to retain it for certain offences).
1. Question 3(a).
374. The replies received on this question fall in two categories. Certain persons or bodies have suggested a scheme of their own, in total substitution for the existing capital offences under the Penal Code. There are, on the other hand, some replies, which suggest only removal of capital punishment for one or more of the offences at present punishable with death, without disturbing the other sections. It would be convenient to deal with the two categories separately.
375. Under the first category (i.e., persons or bodies sending replies suggesting a specific scheme), there are several sub-categories. One suggestion is, that legislation on the lines of the (English) Homicide Act, 1957 may be adopted1-2. Certain replies3-4 have suggested that the death sentence may be confined to-
(i) pre-meditated murder;
(ii) murder in the course of dacoity;
(iii) waging war against the Union of India;
(iv) abetment of suicide by child or insane person;
(v) offence under section 303, Indian Penal Code on the same lines as under section 302, Indian Penal Code;
(vi) abetment of mutiny by a member of the Armed Forces;
(vii) attempt to murder by life convict.
(Some replies5 have also suggested, that certain other offences, like adulteration of food and drugs and espionage during grave emergency, should also be punishable with death; but this is a matter to be dealt with separately.6)
1. A High Court, S. No. 136, under question 3(a).
2. Reply of a High Court Judge, S. No. 105, under question No. 1, suggests the adoption of the provision for diminished responsibility from the Homicide Act, 1957.
3. The replies were received before the Murder (Abolition of Death Penalty) Act, 1965, was passed.
4. Supreme Court Bar Association, S. No. 110, and Bar Association of India, S. No. 183.
5. For example the Supreme Court Bar Association, S. No. 110.
6. See discussion relating to question 3(1); paras. 414-428 and 436-439, 463, 473-474, infra.
376. One gentleman1 would like the retention of death sentence only in certain cases enumerated by him, being (a) offences under sections 303, 121, 132, 194, second paragraph and section 307, Indian Penal Code, and (b) only certain types of murders, namely,
(i) murder of a person under 12 years of age;
(ii) murder of a person under 18 years, or of a woman in the course of or furtherance of theft, robbery or dacoity of property on their person;
(iii) murder of a woman after committing rape on her;
(iv) murder in the course of resisting, etc., of lawful arrest;
(v) murder of a police officer acting in the execution of his duty;
(vi) murder of a Prison Officer acting in the execution of his duty or of a person assisting a Prison Officer;
(vii) murder by a convicted murderer;
(viii) murder preceded by torture;
(ix) murder of more than one person in the course of the same transaction;
(x) murder committed in the course or furtherance of or following an offence punishable with imprisonment, and
(xi) murder by shooting or causing an explosion.
1. Law Secretary to a State Government, S. No. 162.
377. In one of the replies1, the suggestion has been made that the death sentence may be retained only for waging war.
1. A Member of the Rajya Sabha, S. No. 206.
378. Another reply1 has suggested, that the death penalty should be retained by way of exception only in the case of homicidal maniacs or those lunatics with homicidal tendencies or motiveless malignities or those who, in the interest of the safety of the society, cannot be left at large.
1. S. No. 211.
379. It may also be noted here1, that in the replies to another question, a division of the categories of murders into "capital" and "non-capital" has been suggested in some replies; but a detailed discussion of that aspect is unnecessary here2.
1. Q. 6(a) and 6(b).
2. See paras. 663-699, infra.
380. One of the replies1 states, that for the offences under sections 121, 132, 194, 305 and 307, Indian Penal Code, the sentence of death is unreasonable. Substitution of life imprisonment or rigorous imprisonment for specific periods will, it states, restore the individual to society by bringing about a lasting reform in his character. Most of these crimes, it is stated, arise out of an undisciplined will, and therefore, reformation of criminals, which is the most important element in punishment, should be taken note of. In the case of these offences, we must measure the gravity of the crime by the gravity of the right violated, and (it is stated) deterrence should come in as a secondary qualification; it should not occupy a pre-eminent place.
1. A District Panchayat Officer, S. No. 425.
381. The suggestion of a District Bar Association1 is that the death penalty be limited to offences under sections 121, 132, 302 (where there are aggravating circumstances, i.e., where the motive is a personal gain or sex), 303 and 307, Indian Penal Code.
1. S. No. 343.
382. The replies of two Sessions Judges1 suggest that the sentence of death should be retained only for offences under sections 121, 302, 303, 305 and 396, Indian Penal Code. This is also the reply of a District Bar Association2, and is, in substance, the suggestion of a Judicial Officers' Association3.
1. S. Nos. 358, 360.
2. S. No. 368.
3. S. No. 373.
383. The reply of an Advocate, who is also the Member of a State Legislature1, suggests retention of the death sentence only for offences under sections 302, 303, and 396, Indian Penal Code.
1. S. No. 226.
384. The Law Minister of a State Government has suggested the following scheme1:-
1. S. No. 253, under question 3(a).
"I would like the retention of the permissibility of death sentence only in the following cases:-
(1) Offences under section 303; (Death sentence to remain obligatory);
(2) Offences under section 121;
(3) Offences under section 132;
(4) Offences under paragraph 2 of section 194;
(5) Following types of offences under section 302:-
(i) Murder of a person under 12 years of age:
(ii) Murder of a person under 18 years of age, or of a woman, in the course of furtherance of theft, robbery or dacoity of property on their person;
(iii) Murder of a woman after committing rape on her;
(iv) Murder done in the course of or for the purpose of resisting or avoiding or preventing a lawful arrest or of affecting or assisting escape or reserve from lawful custody;
(v) Murder of a Police Officer acting in the execution of his duty or of a person assisting a police officer so acting;
(vi) Murder of a prison officer acting in the execution of his duty or of a person assisting a prison officer so acting;
(vii) Murder by a person who has already been convicted of another murder;
(viii) Murder preceded by torture;
(ix) Murder of more than one person in the course of the same transaction;
(x) Murder committed in the course of furtherance of following an offence punishable with imprisonment for life; and
xi) Murder by shooting or causing an explosion.
(6) Offence under the second paragraph of section 307 (death sentence to be obligatory);
(7) Abetment of offence punishable with death.
No other offence under the Indian Penal Code need, in my opinion, be made punishable with death.".
385. We may now deal with the second group of replies, i.e., the suggestions regarding specific offences of the Indian Penal Code.
386. Section 121-waging war against the Government.-
Abolition of the death sentence (with retention of imprisonment for life) for the offence of waging war against the Government, has been suggested in certain replies1-5. One reply states6, that section 121, Indian Penal Code has become obsolete, as it was intended to punish insurrections designed to prevent the King from reigning according to law.
Regarding section 121, Indian Penal Code one suggestion7 is, that where a man, by reason of his political views, openly revolts against the system of Government which, he believes, has rendered itself unserviceable for the cause of the advancement of the people and the country, the death sentence may be done away with. But, on the other hand, even those who are against the death sentence8 have stated, that if it is to be kept, it should certainly be kept in the case of traitors, saboteurs, spys, etc.
In the reply of an Advocate it has been stressed9 that it is natural with "every young blood" to endeavour to bring about a change in the existing form of Government, and therefore, the offence under section 121, Indian Penal Code should not be a capital one.
1. A Pleader, S. No. 151.
2. Bharat Sewak Samaj, New Delhi, S. No. 145.
3. S. No. 138.
4. Bharat Sewak Samaj, New Delhi, S. No. 145.
5. A Pleader, Saharanpur, S. No. 151.
6. A former Law Secretary to a State Government. S. No. 139.
7. S. No. 249.
8. S. No. 255.
9. S. No. 409.