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Report No. 35

Topic Number 31(d)

Lesser sentence for offences under sections 302 and 303

586. Lesser sentence for offences under sections 302 and 303.-

Two points regarding the punishment under sections 302 and 303, Indian Penal Code, may be discussed here though they do not directly arise from the question of abolition of capital punishment. The first is, whether in respect of the offence under section 302, Indian Penal Code (murder), a punishment of imprisonment for a specified period should be added in addition to the existing provision for punishment by imprisonment for life.

Cases have arisen in the past where it was felt that, in the circumstances, imprisonment for a specified period (and not for life), would be adequate. Even though the offence does fall under murder, the court may feel that neither the sentence of death nor the sentence of imprisonment for life is called for in the circumstances of the case. The usual practice in such cases has been for the High Court to make a recommendation to the Government for suitable action under section 401 of the Code of Criminal Procedure1. We do not consider it necessary to recommend any change in the statutory provisions.

1. See Analysis of Case law, Cases No. 4 (Footnotes), 33, 34, 36, 46, 53, 57 and 93.

587. For the offence under section 303, Indian Penal Code, the sentence of death is mandatory. The reason for this is that in the case of an offence committed by a person who is already under sentence of imprisonment for life, the lesser sentence of imprisonment for life would be a formality. It has, however, been suggested1-2 that even for this offence the sentence of death should not be mandatory. We have considered the arguments that can be advanced in support of the suggested change. It is true that, ordinarily speaking, leaving the court no discretion in the matter of sentence is an approach which is not in conformity with modern trends.

It may also be noted that section 303 is not confined to a person who is undergoing imprisonment for murder. It applies in all cases where the sentence is of imprisonment for life, which would take in persons sentenced, for example, under section 304 (culpable homicide), under section 395 (dacoity), sections 388 and 389 (extortion by threat of accusation of an offence of unnatural intercourse), mischief by fire (section 438) and counterfeiting currency notes (section 489A). In all these cases, if the person sentenced to imprisonment for life commits murder again, the court would (by the terms of section 303) be precluded from considering the extenuating circumstances of the case, with a view to passing the lesser sentence.

1. Cf suggestion of the Indian Federation of Women Lawyers, S. No. 121.

2. See also replies to Question 3(a)-dealing with section 303, Indian Penal Code, para. 391, supra.

588. It may also be noted that under section 307, second paragraph, Indian Penal Code (attempt to murder by a person undergoing imprisonment for life, if hurt is caused), the offender "may be punished" with death. The punishment of death is not mandatory. This paragraph was added by the Amendment Act1, and has not gone so far as to make the sentence of death obligatory.

1. Indian Penal Code Amendment Act, 1870 (27 of 1870).

589. As against these points, it can be argued that where a person has been already sentenced to imprisonment for life, it means that he has been at least once guilty of a serious offence, and, in the vast majority of cases the commission of a murder by him would tend to show that he is a dangerous criminal who has not mended his ways.

590. We also considered the question whether section 303, Indian Penal Code, should be confined to cases where the sentence which the offender is undergoing is one in respect of a capital offence, by adding the words "for an offence for which he could have been sentenced to death" after the words "imprisonment for life".

591. We have, however, come to the conclusion that it is not necessary to make any change. We feel that in such cases it would be pointless to award the sentence of imprisonment, which under the Code of Criminal Procedure1 must run concurrently. Acute cases of hardship, where the extenuating circumstances are overwhelming in their intensity, can be dealt with under section 401, Code of Criminal Procedure, 1898, and that seems to be sufficient.

1. See section 397 (2), Code of Criminal Procedure, 1898.

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