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Report No. 35

Topic Number 34(c)

Replies to Question 6(a)(b)

663. Replies to Question 6(a)(b).-

Question No. 6 in our Questionnaire consisted of 'two parts, and was as follows:-

"(a) Is it possible to divide murders into different categories for the purpose of regulating the punishment for murder?

(b) Is it possible to divide murders into two categories

(i) murders punishable with death;

(ii) murders not punishable with death?".

Part (a) of this question, it may be noted, deals generally with the possibility of division of murders, while part (b) deals specifically with the division of murders into capital and non-capital.

664. Replies received on this question, can be classified into three groups-first, those which take the view that a division of murders is not possible; secondly, those which take the view that such division is possible, but not desirable; and thirdly, those which take the view that such division is possible, and have made suggestions as to the scheme of division.

665. The first two groups of replies naturally stop with part (a) of the question because part (b) does not arise in their case. So far as the third group of replies is concerned, their general reply falls under part (a), and the scheme of division really falls under part (b).

666. The first group comprises the largest number of replies, and represents the opinion of the majority of the State Governments, High Courts, High Court Judges, Bar Associations, Bar Councils and individuals that have sent replies to the Questionnaire1. Some of the important points made in these replies may be noted. Thus, it has been pointed out2, that homicide has already been divided into different categories under sections 302, 304 and 304A, Indian Penal Code, for the purpose of regulating the punishment. There are other exceptions provided in the Code, under which homicide may be completely justifiable in the circumstances of a particular case. (Hence a further division is not required).

1. It is unnecessary to enumerate all of them.

2. A High Court Judge, S. No. 147.

667. Most High Court Judges are opposed to any division of murders into capital and non-capital, and are of the view that such a division is neither possible nor desirable1.

Most District and Sessions Judges2 are opposed to any scheme of division of murder.

1. High Court Judges, S. Nos. 230, 251, 316, 317, 393, 394, 396.

2. District and Sessions Judges, S. Nos. 352, 367, 373, 374, 376, 377, 378, 384, 385, 386, 388, 418, 419, 420, 421, 423, 424, 429, 437, 442.

668. One of the State Governments1 has pointed out that it is well-nigh impossible to enumerate the various types of murders in respect of which capital punishment may be retained. There is always a chance of a certain category of murders being left out without much justification, from the category of those for which capital punishment may be retained. This, it is stated, is an additional reason for retaining capital punishment for murders punishable under section 302 in the entirety, without making any distinction between one type of murder and another for the imposition of sentence.

1. A State Government, S. No. 182.

669. The Judicial Section of the Indian Officers' Association in a State1 has, while opposing the division of murder, stated as follows:-

"Categories can only be based on motives or circumstances. The existing law permits the motives and circumstances to be considered and evaluated for the purpose of exercising discretion in regard to punishment. To categories murders on the basis of motives would almost require an impossible task of judging evidence to find out whether they are of the categories laid down. Such categorisation would introduce an undesirable element of vagueness, rigidity, fanciful interpretations, etc.".

1. S. No. 562.

670. That no amount of categorisation can meet the infinitely varied situations and circumstances in which murders take place, has been stressed in another reply also1. An eminent member of the Bar2 has also pointed out that the scheme of the Indian Penal Code has been tested over a long period of time and found satisfactory, and therefore no change seems to be called for to make the distinction envisaged by the question3.

One danger of a rigid division of murders has been pointed out in one of the replies4, namely, once it is known to the criminal mind that certain types of murders cannot be punished with death, then the incentive to commit such murders will increase, and at the hearing stage, items of evidence will be led to show that though the case is one of murder, yet it is not a capital murder. This, it is stated, will confuse the issue at sessions trials.

1. A High Court, S. No. 187.

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

3. A Bar Council has also replied to the same effect, S. No. 159.

4. Chief Justice of a High Court and a Judge of the High Court, S No. 130.

671. We may, under this group, refer to the argument put forth in the reply of a Government officer1. That reply states that while it is never impossible to divide anything into separate categories, the division of the offence of murder would not be desirable. The case-law in this context, it is pointed out, has developed on clear-cut lines and continues so to develop. The scheme of the Indian Penal Code, whereunder culpable homicide is first defined, then it is laid down as to when culpable homicide is murder, and, lastly, certain exceptions are laid down which take the offence back within the fold of culpable homicide, has been tried in the country for over a century.

The doubtful points have been clarified by case-law to such an extent as to make the scheme well-nigh foolproof. The case-law can be trusted to give good and safe guidance to the judiciary in determining whether an offence is murder, culpable homicide or a lesser offence. The law laid down in clear and precise terms in Rex v. Govinda ILR 1 Bom 342 still holds good. If this system is disturbed, confusion will become the order of the day. Hence, the best course would be to let murder remain murder, and to leave the severity of the punishment to be decided by the court in accordance with the principles. (The principles, the reply goes on to state, should be stated with greater clarity).

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

672. A State Government1 has pointed out, that the variety of circumstances cannot be fully envisaged and categorised.

1. S. No. 574.

673. Another State Government1 has stated, that while it may be possible to codify the situations and offences in respect of which the death penalty ought to be mandatory or discretionary, in practice it will be very difficult of application.

1. S. No. 580.

674. It has been stated in the reply of several District and Sessions Judges1 that it will not be possible to divide murders into capital and non-capital.

1. S. No. 520; S. No. 524; S. No. 534; S. No. 535.

675. The majority of the Presidency Magistrates in a Presidency Town1 are of the view that a division of murders would amount to hampering the discretion of the courts, who have been exercising their discretion in the matter of punishment in a judicious and appropriate manner. "After all, the criteria for such a division would be either the method or the motive of murder, and both would, in the ultimate analysis, be the very criteria which will determine the sentence to be awarded even if there are no two categories of murder"

1. S. No. 549.

676. The second group of replies under this question is a small one, which adds that the division of murder as envisaged may be possible, but not desirable.1-2

Several replies fall in this group.3-7

1. The Indian Federation of Women Lawyers, S. No. 92.

2. An Advocate (0.S.) Bombay, S. Nos. 92 and 121.

3. A High Court Judge, S. No. 393.

4. A very senior Advocate of the Bombay High Court, S. No. 318.

5. A Member of a State Legislature, S. No. 249.

6. Law Minister of a State, S. No. 253.

7. S. No. 330.

677. This brings us to the third group, namely, those who consider that the division of murder into categories is possible, and have suggested an actual scheme of classification. It is not necessary to summarise each and every reply on this point. But the replies mostly seem to fall mainly under the categories detailed below:-

(i) Replies suggesting adoption of the Homicide Act

Certain replies have suggested that legislation on the lines of the (English) Homicide Act, 1957, may be introduced in India.1-4

(ii) Replies suggesting exhaustive scheme

An exhaustive scheme of categorisation of murders into capital and non-capital has been suggested in one of the replies5. That scheme is as follows:-

(a) For offences under section 303, Indian Penal Code, death sentence may be obligatory;

(b) For offences under section 307, second paragraph Indian Penal Code, sentence of death should not be made obligatory when any hurt is caused. Further, the previous sentence of imprisonment for life should have been for committing a murder;

(c) Death sentence may be retained for offences under section 121, 132, 194, second part, Indian Penal Code;

(d) Death sentence may be retained for the following cases of murder under section 302, and abetment of murder punishable with death:-

(i) Murder of a woman after committing rape on her;

(ii) Murder in course of or in furtherance of theft, robbery or dacoity of property;

(iii) Murder done in course of or for the purpose of resisting or avoiding or preventing lawful arrest or of effecting or assisting escape or rescue from lawful custody;

(iv) Murder of a Public Officer acting in the execution of his duties or of a person assisting a Public Officer so acting;

(v) Murder of more than one person in course of same transaction;

(vi) Murder by shooting or causing an explosion or by deliberately gruesome acts of torture or dismembering;

(vii) Murder by a person who has been once convicted of murder and sentenced to imprisonment for life.

(According to this reply, there are no special reasons for generally prescribing death sentence for murder of a person under 12 years, or for murder of a woman or a person under 18 years of age for depriving them of the property on their person. Further, the reply states, police officers or prison officer should not be distinguished from other public officers).

1. A High Court Judge, S. No. 105.

2. (Reader in Criminal Law) under reply to question 3(a), S. No. 107

3. A (High Court) under question 1, S. No. 136.

4. The replies were received before the passing of the Murder (Abolition of Death Penalty) Act, 1965.

5. A State Law Commission, S. No. 101.

678. A somewhat similar reply has been received from one officer1.

1. Home Secretary to a State Government, S. No. 131.

679. The reply of a High Court Judge1 is that the normal rule for exercising the discretion in respect of sentence should be, that unless there are aggravating circumstances like the enormity of the crime, the sentence of death should not be imposed. Further, if the normal rule so suggested is adopted, murders should be so divided, and, in that case, murders punishable with death would be those only which are attendant with aggravating circumstances like the enormity of the crime, the murder being cold-blooded and premedicated, accompanied with unnecessary brutality, etc., or murders by a life convict and dacoity with murder under section 396, Indian Penal Code.

1. S. No. 397 (A High Court Judge), under Questions 5 and 6.

680. The reply of the Law Minister of a State1 is that it is possible to divide murders into categories, and that murders under sections 121, 132, 302, 303 and 396, Indian Penal Code, may be included in the categories of murders punishable with death. The reply states that the normal sentence for murder should be imprisonment for life, and it should be aggravating circumstances only that the court should award the death sentence. The aggravating circumstances, it is stated should be-

(i) deliberate violence;

(ii) use of lethal weapons;

(iii) wanton cruelty and malignity;

(iv) treachery;

(v) nature of injury;

(vi) motive;

(vii) (murder of) a public servant in discharge of duty; and

(viii) (murder) in course of jail breaking.

1. (Law Minister of a State) under questions 6, 7(a). and 7(b), S. No. 313.

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