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Report No. 35

521. Profiteering.- As to profiteering, separate discussion may be seen1.

1. See discussion relating to hoarding and profiteering, para. 476, supra.

522. Rape.-

A suggestion has been made by many persons that the offence of rape should also be punishable with death. Nobody can doubt that chastity should be as zealously protected as life. There is, however, one important practical consideration which has to be borne in mind. If the offence of rape is made punishable with death, the offender will always have a temptation, after committing rape, to put his victim to death. We cannot, in this connection, do better than quote the words of the authors of the Indian Penal Code1, who made the following observations on the subject:-

"To the great majority of mankind nothing is so dear as life. And we are of opinion that to put robbers, ravishers and mutilators on the same footing with murderers is an arrangement which diminishes the security of life. Those offences are almost always committed under such circumstances that the offender has it in his power to add murder to his guilt. As he has almost always the power to murder, he will often have a strong motive to murder, by inasmuch as murder he may often hope to remove the only witness of the crime which he has already committed.

If the punishment of the crime which he has already committed be exactly the same with the punishment for murder, he will have no restraining motive. A law which imprisons for rape and robbery, and hangs for murder, holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured. A law which hangs for rape and robbery, and which also hangs for murders, holds out, indeed, if it be rigorously carried into effect, a strong motive to deter men from rape and robbery, but as soon as a man has ravished or robbed, it holds out to him a strong motive to follow up his crime with a murder."

1. Draft Penal Code, Note A, p. 93.

523. We may also mention here that the offence of rape was previously punishable with death in Canada, but in the new Criminal Code of Canada, as revised in 1954, the punishment is only imprisonment for life and whipping1. This deletion has been approved in the Report of the Joint Committee of the Senate and of the House of Commons on Capital Punishment in, Canada2.

1. Section 136, Criminal Code of Canada.

2. Report of the Joint Committee of the Senate and the House of Commons on Capital Punishment, 27th June, 1956, p. 16, para. 64.

524. In England1, rape was, at first, a felony punishable by death. The Statute which made it a capital offence in the beginning, was the Statute of 1576, 18 Elizabeth C. 7, under which a person feloniously committing rape or unlawfully and carnally knowing and abusing any woman-child under the age of 10 had to suffer death. By later Statutes, the same punishment was prescribed for sodomy and for the crime against nature. Later, the offence was reduced to great misdemeanour punishable with loss of eyes and castration. Subsequently, by the Statute of Westminister 1, C. 13, it was reduced to trespass (punishable with imprisonment up to 2 years and fine). But the Statute of Westminister 2, C. 34, again declared it to be a felony.

1. See Radzinowicz History of English Criminal Law, (1948), Vol., p. 631, footnote 2.

525. The evolution of the doctrine of constructive malice in connection with felonious acts, however, made a difference in England where death resulted from a rape or attempted rape. This was on the principle that an act of violence done in the course of or in the furtherance of a felony involving violence, if it led to the death of the victim, amounted to murder, even if there was no intention to ki111-2-3.

1. Cf. D.P.P. v. Beard, 1920 AC 479 (492, 493) and Russell on Crime, (1964), Vol. 1, pp. 468, 482, 483; P.H. Dean's Article in (198) 54 LQR 23.

2. R. v. Stone, (1937) 54 Times Law Reports 1046.

3. See also observations of Stephen J. in R. v. Serne, (1887) 16 Cox 311; Turner and Armitage Cases on Criminal Law, (1953), p. 118.

526. This artificial concept of constructive malice has now been abolished by the Homicide Act1. The present position in England is that rape is a felony punishable with imprisonment for life2.

1. The Homicide Act, 1957 (5 and 6 Eliz. Ch. 11), section 1(1).

2. Sexual Offences Act, 1956 (4 and 5 Eliz. 2, C. 69), section 1, read with section 37 and second schedule.

527. It would appear1 that simple rape is a capital offence in very few countries2, whereas rape followed by death is a capital offence in some countries3.

In the light of the above discussion, we do not recommend the sentence of death for rape.

1. See U.N. Publication on Capital Punishment, (1962), Tables at the end.

2. China (Taiwan), Nyasaland, South Africa, Northern Rhodesia, and 18 States of U.S.A.

3. Japan and Philipines.

528. Sabotage.-

As regards acts of sabotage, generally the discussion relating to arson1 may be seen.

1. See discussion relating to arson, separately, para. 465, supra.

529. Secession.-

We have considered the question whether the preaching of secession from the Union of India by violent means should be made a capital offence. We feel that this is a matter of a special character, and would not in this Report, suggest a provision of this nature1.

1. A Bill to punish secession has been recently introduced-The Unlawful Activities (Prevention) Bill, 1967 (Lok Sabha Bill No. 60 of 1967).

530. Smuggling.-

Some of the replies to our question on the subject suggest that the smuggling of goods should be made a capital offence. We are unable to agree with this suggestion, for the reason that ordinarily speaking, the sentence of death should (apart from offences which are destructive of the country's 'integrity, independence or safety which interfere with the loyalty and morale of the army), be reserved for an offence which shows a wilful disregard of human life.

531. Train robbery and wrecking.-

Train robbery and train wrecking are capital offences1 in certain areas2. We do not think, however, that it is necessary to go beyond sections 209 and 300, Indian Penal Code, which sufficiently take care of the matter where death is caused as a result of such acts.

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

2. Mainly, certain States of U.S.A. (about 20 States).

532. Treason.-

We proceed to examine whether the offence of treason, as suggested in some of the replies1, requires to be made a capital one.

1. Replies to Question 3(b) are summarised separately. See para. 458, supra.

533. In India, the provision that corresponds to the offence known as "treason" in English law is the offence of "waging war against the Government of India". The main offence is punishable with death1 and conspiracies and preparations and other connected offences are punishable with varying punishments2-3.

1. Section 121, Indian Penal Code.

2. Sections 121A, 122, 123, Indian Penal Code.

3. See also section 196, Code of Criminal Procedure, 1898.

534. English law relating to treason.-

According to the law of England, death sentence is mandatory in all cases of high treason1. The sentence is one of hanging by the neck until such person be dead, but the Crown may substitute another mode of execution directing that the head shall be severed from the body of such person whilst alive2. What is meant by "high treason" has to be gathered from the Treason Act, 13513, and the Treason Act, 17954.

1. Treason Act, 1814 (54 Geo. 3, C. 146), section 1.

2. Treason Act, 1814, section 2.

3. Treason Act, 1351 (25 Edw. 3st 5, C. 2).

4. Treason Act, 1795 (36 Geo. 3, C. 7), section 1.

535. There are certain other Acts regarding high treason constituted by hindering the succession to the Crown, which are not of importance for our purpose1-2.

1. Various Acts relating to treason will be found dealt with in Archbold Criminal Pleading, etc., (1962), para. 3001 et seq.

2. For detailed discussion, see Appendix relating to English law treason.

536. Treachery.-

In England, a temporary addition to the murder of capital offences was made in 1940, when the legislature passed the Treachery Act1, section 1 of which provided:-

"1. If, with intent to help the enemy, any person does, or attempts or conspires with any other person to do, any act, which is designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty's forces, or to endanger life, he shall be guilty of felony and shall on conviction suffer death.".

Russell's discussion of the Act may be quoted2-3:-

"Save in the case of a prisoner who is subject to the Naval Discipline Act, to military law, or to the Air Force Act, or an enemy alien, persons charged with this offence are to be prosecuted upon indictment, and if convicted, are to be dealt with in like manner as persons convicted on indictment for murder, but no prosecution is to be instituted (otherwise than by way of proceedings for a trial by court-martial) except by or with the consent of the Attorney-General, although any person may be arrested, charged, and remanded without that consent.

The Treachery Act would seem to be temporary, for by section 6 no person shall be guilty of an offence under this Act by reason of anything done after such day as His Majesty may by Order in Council declare to be the date on which the emergency which was the occasion of the passing of this Act came to an end.".

The Act has been recently repealed4.

1. Treachery Act, 1940 (3 and 4 Geo. 6, C. 21).

2. Russel on Crime, (1964), Vol. I, p. 215.

3. See also Halsbury, 3rd Edn., Vol. 10, p. 566, para. 1048.

4. See the Criminal Law Act, 1967 (Chapter 58), Schedule 3, Pt. I, " Repeals of obsolete or unnecessary enactments".

537. Under Regulations 1(b) and 38A of the Defence General Regulations, 1939, death sentence could be inflicted for certain offences, including looting1. These Regulations were revoked on May 9, 1945.

1. Cf. section 5, Defence of India Act, 1962.

538. The French Penal Code contains elaborate provisions regarding treason, which specifically cover disclosure of secrets also1.

1. Article 75 et seq., French Penal Code.

539. Recommendation regarding treason.-

The provisions of the Indian Penal Code regarding waging war are sufficient for practical purposes.

540. An overwhelmingly large number of replies express satisfaction with the present provisions.

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