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Report No. 35

Topic Number 28

Retention or abolition for each offence considered

395. Retention or abolition for each offence considered.-

Assuming that capital punishment is to be retained, the next question is whether its abolition for any of the particular offences, which are, at present, capital should be recommended. We have summarised the replies received in this connection.1 But, as at present advised, we do not feel ourselves justified in recommending any material change. We have attempted to show the principle on which the penalty of death is allowed by the law for these offences.2 Unless the application of that principle leads to any serious anomalies or hardships, arising from other factors which overthrow the balance, the principle need not be abandoned.

1. Paras. 313-394, supra.

2. Paras. 77-80, supra.

396. Even the offence under section 121, Indian Penal Code, though it may, in one view, be treated as a "political" one, is one for which there is abundant justification for retaining the sentence of death. If the persons committing such offence were to succeed in their object, the whole machinery of the Government would collapse. We cannot agree with the view that this section has become obsolete. Preservation of an orderly society is essential to the functioning of all laws, and should be ensured by all possible means. If we encourage the change of Government by violent means, every disgruntled person will take it into his hands to overthrow the Government.

Section 132, Indian Penal Code, also stands on a somewhat similar footing.

397. As regards the offences under sections 121 and 132, Indian Penal Code, we may refer to the reply of a very senior Advocate of the Bombay High Court1, which states-

"Sections 121 and 132 of the Indian Penal Code deal with matters of high policy, general security, allegiance and loyalty to the State and the country, and military discipline; and is mainly a matter for the civil and military authorities of the State to consider. From the stand-point of public security, they are grave offences, and the death penalty, if appropriate in the exigencies of the situation, is by no means excessive.".

1. S. No. 318.

398. Next, the penalty of death for the offence of giving false evidence leading to the execution of an innocent person (under second paragraph of section 194, Indian Penal Code), is not only in conformity with the above mentioned principle, but is eminently commendable from other ethical considerations also. Under section 194, the witness giving false evidence ought to be held as much responsible as if he had killed the person innocently with his own hands.

399. The question may be asked whether the offence of giving false evidence leading to the execution of an innocent person is a capital one in England. It is not easy to answer this question. There is no statutory provision on the subject. The offence of perjury is punishable in England under the Perjury Act, 1911.1 But that does not provide for the sentence of death in such cases. Section 1 of that Act authorises imprisonment only up to 7 years. Fabrication of false evidence is a misdemeanour, for which also only imprisonment can be awarded.2

1. Perjury Act, 1911 (1 and 2 Geo. 5, Chapter 6).

2. Archbold, (1962), para. 3501, 3544.

400. In a case1 which arose in the 18th century, an attempt was made to secure a conviction of murder for killing by perjury, but the attempt was given up. This case is sometimes cited as authority for the proposition that a person who gives false evidence which leads to the conviction and execution of an innocent person is not guilty of murder.2 From a detailed study of the case, however",3 it would appear that the attempt was given up not from any apprehension that the point was not maintainable, but from other prudential reasons, probably a fear that witnesses would be rendered afraid to give evidence. A full history of the English case will be found in the under mentioned work.4

1. R. v. Macdaniel, (1756) 1 Leach 44.

2. Halsbury, 3rd Edn., Vol. 10, p. 707, para. 1353.

3. Turner and Armitage Cases on Criminal Law, (1964), pp. 215 and 216.

4. Radzinowicz History of English Criminal Law, (1956), Vol. 2, pp. 327-332.

401. If the matter were to be considered purely from the point of causation1 it could perhaps be argued, that the chain of events started by the offender is "interrupted" by the act or omission of a third person (in this case, the Court), who is not a confederate of the accused or controlled by him or acting in pursuance of a common purpose with him. There is, however, a sufficient answer, namely, the offender in this case intended or knew it to be likely that a death sentence would be passed, and the course of justice was polluted by the offender's own misconduct.

It would appear, that in 1692, a Bill was introduced in England to make it a capital offence, to commit or suborn perjury in a capital case, but the Bill did not become law.2

It may be of interest to refer to a provision in the Tasmanian Criminal Code on the subject.3

1. Generally as to causation, see Russell, on Crime, (1964), Vol. I, pp. 412-418 and Howard Australian Criminal Law, (1965), pp. 28-29.

. Russell on Crime, (1964), Vol. I, p. 426.

3. Under section 153(6) of the Tasmanian Criminal Code, if two or more persons bring about the execution of a person by carrying out a conspiracy to give false evidence against him they are deemed to have caused his death.

402. In any case, the provision in the Indian Penal Code should be retained to avoid doubts. There have not been many reported cases under the section. The offence is non-cognizable, and triable exclusively by a Court of Session, and a prosecution cannot be initiated without the complaint of the Court.1

1. Section 195, Code of Criminal Procedure, 1898.

403. Offences under sections 196, 197, 198, 199 and 200, Indian Penal Code, are akin to offences under section 194, and need not be discussed separately.

404. Perjury in other countries.-

It may be noted, that in several countries of the world, perjury or unlawfully causing sentence of death and execution is a capital offence. These countries are Ceylon, Ivory Coast, Dahomey, France, Iran, Luxemburg (de facto abolitionist), the United Arab Republic, Somalia (Northern),. Somalia (Central and Southern), Sudan, Togo and Turkey.1-2

1. See U.N. Publication on Capital Punishment, 1962; Table at the end.

2. See also para. 401, supra.

405. So far as the offences under sections 302 and 303, Indian Penal Code, are concerned, no discussion of the principle on which the penalty of death is imposed is necessary at this place. Certain points of detail, such as categories of murders, will be considered separately.1 The suggested tests of "pre-meditation" and "intention" are also discussed separately.2

1. See paras. 704-706, infra.

2. See paras. 706-725, infra.

406. As regards the question whether the death sentence under section 303 of the Indian Penal Code should continue to be mandatory, we have dealt with it in detail separately.1

1. See separate discussion as to mandatory sentence under section 303, under question 4; paras. 586-591, infra.

407. Some observations appear to be called for regarding the offence under section 305, Indian Penal Code. This deals with abetment of suicide by a child or an insane person. This is really a case of homicide, where the criminal sends his mental faculties to work in aid of the physical act of another person. That other person, now dead by his own hand, cannot be punished (and ought not to be punished), but the moral reprehensibility of the invisible hand, that guided the act is unquestioned, and, in our opinion, is of a magnitude sufficient to justify the inclusion of the act within the range of the highest penalty of the law. We are aware, that this offence does not attract the penalty of death in many of the countries which have retained capital punishment in general.1-2 But that is not a conclusive argument.

1. See U.N. Publication on Capital Punishment 1962, Table I, at the end, under "Aiding in the suicide of a child, etc. The offence is capital in Ceylon, India, Somalia (Northern) and Sudan. Pakistan is also understood to have retained the sentence of death for abetment of suicide, etc., though not so stated in the U.N. Publication.

2. As to England, see section 4, Homicide Act, 1957, as amended by the Suicide Act, 1961.

408. If the punishment of death, while being retained for murder, is removed for this offence, an attempt might be made to circumvent the law either by doing acts which will fall only under abetment of suicide, or by distorting the facts and circumstances so as to make it appear that the case is one only of abetment of suicide. It may be noted, that even in England, at common law,1-2 a person abetting suicide was treated as a principal in the second degree to the "self-murder"3 of the person committing suicide, if he was present at the time when suicide is committed .4

1. R. v. Dyson, 1823 R&R 523.

2. R. v. Croft, (1944) 1 KB 295, (Court of Criminal Appeal).

3. R.C. Report, p. 59, para. 164.

4. See now, section 4, Homicide Act, 1957, as amended by the Suicide Act, 1961, passed after the Second Report of Criminal Law Revision Committee (October 1960), Cmd. 1187.

409. This, of course, does not mean that in every case of abetment of suicide by a child, etc., the penalty of death will be imposed in India. The discretion left to the Court leaves ample room for a consideration of the moral culpability of the offender with reference to the particular circumstances of the case.

410. So far as the offence under section '307, Indian Penal Code (attempt to murder by a life convict), is concerned, a detailed discussion does appear to be necessary. The ingredients of the offence are sufficient to show that the case will fall within a very narrow compass.

411. The offence under section 396, Indian Penal Code-dacoity with murder-is, in a sense, of peculiar interest to India. Its historical background has already been explained1 elsewhere. It may be pointed out, that in a few other countries,2 robbery or armed burglary is punishable with death.

1. See paras. 85-86, supra.

2. Ivory Coast, Dahomey, some States of U.S.A., France, Greece, Netherlands, New Guinea, South Africa and Togo. See U.N. Publication, 'Capital Punishment' (1962), Table I, under "Robbery (armed burglary)".

412. Where section 396 applies, the person to be sentenced to death would be either the person who actually committed the murder, or the other persons who are sought to be made liable vicariously. So far as the person who actually committed the murder is concerned, special discussion is obviously unnecessary, as he would be liable under section 302 also. So far as the other persons are concerned, their vicarious liability is justifiable in view of the special features of this offence.1 We do not, therefore, consider it necessary to take out this offence from the range of the penalty of death.

1. See paras. 115-121, supra.

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