Report No. 35
Topic Number 34(d)
Categories suggested in the various replies considered
700. Categories suggested in the various replies considered.-
We may consider whether any of the suggestions for division of murders can be adopted usefully.
701. Some of the replies suggest a division more or less similar to that embodied in the Homicide Act, 1957, which has already been dealt with.1 Others suggest their own self-contained schemes for particular kinds of murders. Of these, some emphasise the element of premeditation or brutality. We deal with pre-meditation separately2.
1. See paras. 647-649, supra.
2. See discussion relating to pre-meditation, etc., paras. 706-716, infra.
702. Some replies emphasise the element of association with another crime, for example, rape, theft, robbery or dacoity, while some combine these elements along with special provisions regarding murder of public servants, murder by shooting or explosion or torture, repeated murder, and so on. We feel that all these suggestions are open to the general objection, namely, that murder is a complex crime comprising so many elements, and it is not desirable to pick and choose only some of them as the basis for the higher penalty, neglecting the others.
There is always the risk of certain categories of murder being left out from the one or the other class. We cannot also overlook the other danger, that once it is known to the criminal mind that certain types of murders cannot be punished with death, the number of such murders will increase, and efforts will be made at the trial to show that the case falls under the category of non-capital murder. True it is that there is a natural desire to treat, as aggravated murders, those which shock the public conscience; the inclusion of the cruellest modes of killing in the category of capital murders can be easily understood as the result of such desire.
Again, the need for protecting officers concerned with the maintenance of law and order, which lies at the root of the proposals that would treat the murder of such officer as aggravated murder, is obvious. Next, the association of murder with another serious crime may, it is understandable, justify the higher punishment, not only on considerations of efficient enforcement of the criminal law, but also as manifesting social abhorrence of the motive in such cases.
703. But the fundamental objection still remains, namely, that the infinite variety of subjective as well as objective elements,-the history of the offender, the circumstances of the offence, the motive with which the offence was committed, the circumstances in which the victim was placed and the like,-cannot be compressed into one single formula. To give undue importance to one and to neglect the others would mean injustice, anomaly and hardship in practice1.
There might also be a yawning gap in the categories when a situation occurs in real life, which is not covered by the category of aggravated murder, and the law will be brought into disrepute. The classification might cover situations which should not be covered, or might leave uncovered situations which should be covered. The former can, to some extent, be rectified by the exercise of the prerogative of mercy; but the latter cannot be rectified, except by an amendment of the law.
1. See also discussion regarding questions 4 and 5, paras. 580-585, and 629-631, supra.