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Report No. 35

615. To the second class belong several replies which have ventured to suggest a basis for codification. Various bases have been suggested, e.g., motive1, and absence of pre-meditation and tender age2.

1. A Pleader, Madras, S. No. 109.

2. Administration of a Union Territory, S. No. 106.

616. One reply1 suggests that the only two considerations are that, if the Judge strongly feels that the accused is honest, or, if the past history of the accused shows satisfactory character, the lesser punishment should be awarded, and that these are the only two considerations for lesser punishment. Another reply2 states that the age, nature of the offence, circumstance of the offence (i.e., whether it was committed on the spur of the moment or on excitement or emotional outburst, etc.) may be considered. Another reply3 after stating that the considerations to be taken into account pertain to the offence and the offender, proceeds to give an elaborate enumeration of the factors to be taken into consideration regarding the offence as well as the offender. These are as follows:-

(1) the greatness or smallness of the evil likely to result from the acts;

(2) the facility or difficulty with which it can be committed or with which it can be detected;

(3) the frequency or parity with which acts are committed;

(4) the aggravating or extenuating circumstances which accompany this particular act, viz., (a) the victim, as where a women or child is involved, (b) the place, (c) the time, and (d) the company.

1. An Inspector-General of Police, S. No. 166.

2. A Member of the Rajya Sabha, S. No. 207.

3. S. No. 122.

617. As regards the offender himself, account should be taken, it is stated, of the following facts:-

(a) his age, health and sex;

(b) his rank, education, career and disposition;

(c) his motive;

(d) any temptation or intoxication;

(e) his susceptibility to punishment; and

(f) the evil which the judicial proceedings have inflicted on him already.

From these considerations, a five-fold classification of offenders, it is stated, may be formulated:-

(i) passion;

(ii) opportunity;

(iii) acquired habit;

(iv) insanity; and

(v) innate instinct.

618. It remains now to consider replies suggesting the middle course (provisions in certain respects). Thus, it has been state1 that there is no insurmountable difficulty in making a specific provision regarding the considerations to guide the court's discretion, but that it should be made clear that the enumeration is not exhaustive.

1. Law Secretary to a State Government, S. No. 162.

619. One reply states as follows1:-

"I would not put it as if the exercise of discretion should be on considerations which weigh with court in awarding the lesser punishment of imprisonment for life. I would put it the other way. The considerations which should weigh with court in awarding the higher punishment of sentence of death would have to be thought of and discretion vested in courts in this regard. It must be possible to codify such considerations.".

1. A Member of a State Legislature, who is also an Advocate under question 5, S. No. 226.

620. Another reply1, while favouring total abolition, states, that if total abolition is not conceded, the extreme penalty should be reserved only for the following offences:-

"(a) Cold-blooded pre-planned murders for sordid gain, specially of children, women, infirm and old persons.

(b) After satisfying sexual lust, murder of the victim of rape;

(c) Murder for hastening succession or obtaining riddance from an uncongenial spouse;

(d) Murder falling under section 194, second para. and under section 396, I.P.C.;

(e) high treason, passing to the enemy secret information to the detriment of India or otherwise aiding the enemy of the country;

(f) where the accused has, taking undue advantage, acted in a cruel, unusual and revolting manner shocking to human feelings.".

1. Under questions 5, 6 and 7, S. No. 305.

621. A District and Sessions Judge in the State of Maharashtra1 has also suggested codification.

His suggestion is this-

"I think that imposition of capital sentence should be made compulsory in certain categories of crimes which are at present punishable with death. The categories of crimes indicated in section 5 of the English Homicide Act, 1957 and which are punishable with death under Indian Penal Code may be taken as offences for which sentence of hanging should be the capital sentence. So far as the remaining categories of the offences punishable with death under the Indian Penal Code are concerned, certain uniform principles should be laid down in the matter of the imposition of the sentence. Where the murder is premeditated cold-blooded and brutal such as where the offence falls within the ambit of paragraph 1, or paragraph 2 of section 300 Indian Penal Code, capital sentence should be the normal sentence.

"Where the offence of murder falls within the ambit of paragraph 3 or paragraph 4 of section 300 of Indian Penal Code, then the lesser sentence should be imposed.".

1. A District and Sessions Judge under questions 4 to 7, S. No. 346.

622. One District and Sessions Judge has stated1 that the vesting of discretion is necessary, but that the provision is not working satisfactorily, and that for the exercise of discretion, some broad principles by way of illustrations or illustrative cases may be appended to the relevant sections. The reply, while enumerating some of the considerations which usually weigh with the court, takes care to emphasise that it is not possible to attempt an exhaustive enumeration of these considerations.

1. Reply to questions 4 and 5, S. No. 570.

623. One District and Sessions Judge has stated1 that policy of the law can be laid down, though an exhaustive codification cannot be attempted; the reply gives (i) extreme youth and (ii) grave provocation which is not sudden provocation, as examples of the considerations to be taken into account. An eminent member of the Bar has also2 suggested, that while the discretion should remain unfettered, it would be useful to lay down the general policy of the law, though the considerations cannot be codified. Another reply3 suggests that in the case of a conviction under section 302, Indian Penal Code read with section 34 or section 149, Indian Penal Code, the normal sentence should be death, in the absence of extenuating circumstances.

1. A Bar Council, S. No. 159.

2. An eminent Member of the Bar through the Bar Council of India, S. No. 161.

3. A District and Sessions Judge, Gujarat State, S. No. 212.

624. The reply of a High Court Judge1 is as follows:-

"The considerations should be-

In murder cases

(i) where the offender is under eighteen years of age;

(ii) if an offence under the fourth clause of section 300, Indian Penal Code, when there was no intention to commit murder;

(iii) the murder, though intentional, having been committed without premeditation and in the heat of passion, without brutality;

(iv) the murder having been committed under grave provocation, the provocation not being both grave and sudden so as to reduce the offence to culpable homicide not amounting to murder;

(v) reasonable doubt as to the sanity of the offender, at the time of murder actual insanity not being proved;

(vi) where murder has been committed by more than one person-on the person who did not take a principal part in the murder.

I do not aspire to be exhaustive, but these are the few I can think of at the moment. I do not find any difficulty in amending the Indian Penal Code accordingly.".

1. A High Court Judge, under question 5, S. No. 316.

625. The reply of a member of a State Legislature1 suggests the following considerations:-

(a) the circumstances of the murder, if the murderer was forced to commit the murder;

(b) the nature and character of the murderer, if there is enough ground to believe that it was committed only by accident and the murderer will repent and prove to be a good and peaceful citizen;

(c) the provocation was of a nature /which could not be tolerated.

1. A Member of a State Legislature, S. No. 243.

626. The reply of a Member of a State Legislative Council1 is as follows:-

"The following considerations, inter alia, should weigh with the court in awarding the lesser punishment of imprisonment for life-

(a) Whether the offence was pre-meditated, calculated, in cold-blood and of malice aforethought or deliberate and very heinous;

(b) whether it was a crime of passion, sudden and unprovoked case of revenge for deep personal injury to one's prestige, honour and reputation;

(c) offence committed in self-defence;

(d) the impact of the sentence on the dependents of the offender;

(e) other humanitarian and psychological considerations.

All these considerations can be codified but in ultimate analysis initiative and discretion of the Judge and the jury cannot be completely bound and limited.".

1. Member of a State Legislative Council, who is also an Advocate under question 5, S. No. 257.

627. The reply of a District and Sessions Judge deals with the matter in detail1:-

1. A District and Sessions judge, under question 5, S. N. 429.

"In suitable cases, the Court may award the lesser punishment of life imprisonment, but what is a suitable case is within the court's discretion which must, of course, be exercised judicially and not arbitrarily or on irrelevant considerations. The conduct of the murderer, the nature of the temptation to which he yielded and the mariner in which the crime was committed are some of the considerations which will weigh with the court. It is not possible to codify these considerations. Codification would make the law rigid which is not desirable. Some of the considerations which should weigh with the court in awarding the lesser punishment are noted below:-

(i) immaturity of mind, as might be seen in youth or persons of retarded mental development;

(ii) degeneracy of mind, as might be seen in extreme old age or in neuropathic or psychopathic persons who are not definitely insane;

(iii) undue influence of a person in authority, though not amounting in law to coercion;

iv) where there is a doubt as to the sanity of the accused at the time of the offence, actual sanity not being proved;

(v) where the murder is committed under provocation which is grave, though not sudden; or is sudden though not grave; or is neither;

(vi) where the murder was committed due to frustration in love;

(vii) minor degree of participation in the crime e.g., where incomplete knowledge of common purpose existed or where the part played in carrying the crime into effect was a minor one;

(viii) where the murder was committed in a state of intoxication;

(ix) murder to avoid some imaginary mishap due to some superstitious belief such as witchcraft;

(x) murder on the spur of the moment on a sudden quarrel without pre-meditation;

(xi) where the corpus delicti is wanting;

(xii) where there is no motive disclosed for the crime, or the motive is to conceal one's shame, e.g., murder of a new-born illegitimate child;

(xiii) where considerable time has elapsed since the crime and the offender has behaved well during that time;

(xiv) where the offender has voluntarily made a clean confession of his guilt at the earliest opportunity.".

628. Another reply states1, that though it is not possible to codify the considerations, yet the position can be broadly stated thus:-

The death sentence be given in cases of-

(a) murder for gain;

(b) dacoity with murder;

(c) cool calculating diabolical murders.

1. A District and Sessions Judge, under question 5, S. No. 359.

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