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Report No. 35

Chapter IX

Normal Sentence

Topic Number 39(a)

Replies to Question No. 7

726. Questions.-

Question No. 7 in our Questionnaire was as follows:-

"7 (a) Are you in favour of the view that the normal sentence for murder should be imprisonment for life, but in aggravating circumstances, the court may award the sentence of death?

(b) If so, what, in your opinion, should be the aggravating circumstances?".

727. Replies to Question No. 7(a).-

Conflicting replies have been received to this question1. One group of replies suggests that imprisonment for life should be the normal sentence for murder. Another view is, that the normal sentence for murder should be death, and the lesser sentence should be awarded only in the case of extenuating circumstances. A third view is that the matter should be left to the discretion of the court.

There is no strong majority in favour of any of these various views, and opinion is sharply divided.

1. Para. 726, supra.

728. According to the first view, the normal sentence for murder should be imprisonment for life. This view has been expressed by a few High Court Judges1, a State Government2, some members of the Bar3-4, a Bar Council5, and several others.

1. S. No. 147.

2. S. No. 129.

3. An eminent member of the Bar, S. No. 161.

4. A Member of the Bar Council of Madras, S. No. 104.

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

729. That the normal punishment for murder should be imprisonment for life is also the view of a High Court Judge1, of the Law Minister of a State2, a Member of Parliament3, some Members of State Legislatures4 and several others5-6.

1. A High Court Judge, S. No. 230.

2. Law Minister of a State, S. No. 313.

3. A Member of Rajya Sabha, S. No. 245.

4. Members of State Legislatures, S. Nos. 225, 237, 241, 243, 248, 253 and 257.

5. An Inspector-General of Prisons, S. No. 264.

6. A University Professor, S. No. 304.

730. A High Court Judge1 has stated that the normal punishment should be imprisonment for life, and that in aggravating circumstances the Court may award the sentence of death. The aggravating circumstances, in his opinion, are-Deliberate murders, evidencing moral turpitude and brutality.

1. A High Court Judge, under question 7(a) and 7(b), S. No. 316.

731. Many replies suggesting that the normal sentence for murder should be imprisonment for life have been received from District and Sessions Judges1. One of these replies states2 that actual judicial experience shows that the sentence of death is awarded in few cases in cases of murders, and hence there is no harm in providing that the normal sentence shall be imprisonment for life.

1. District and Sessions Judges, S. Nos. 330, 341, 353, 359, 376, 377, 378, 380, 381, 382, 383, 389, 390.

2. A District and Sessions Judge, S. No. 353.

732. Certain other District and Session Judges1 and Additional Sessions Judges2 are in favour of making imprisonment for life the normal sentence for murder.

1. S. No. 524.

2. S. No. 535.

733. In the reply of a District and Sessions Judges1, it has been stated that imprisonment for life should be the normal sentence. The reply points out that after the amendment of section 367 of the Code on Criminal Procedure, 1898, in 1955, the sentence is to be determined on the facts of the case. The reply also states that the court must state its reasons for awarding the sentence of death, and advance the following reasons for this suggestion:-

(i) No court is bound to pass the maximum sentence, and the scheme of the Indian Penal Code also indicates that the maximum sentence should be awarded only in exceptional cases;

(ii) the presiding officer should be given a perfect chance of meeting cases of doubt or hardship;

(iii) since the death sentence negatives reformation, the court must have adequate reasons for considering that the offender is not corrigible or that the reformatory method would do no good to him;

(iv) cogent reasons must appear on the record of the case to justify the extinction of human life;

(v) the court must show caution in exercising its discretion in awarding sentence in cases of vicarious constructive liability.

1. Reply to questions 2(a) and 7(a), S. No. 553.

734. On the other hand, the opposite view states that the normal sentence for murder should be death, and the lesser sentence should be awarded only when there are extenuating circumstances. This view has been expressed by certain High Courts1, some High Court Judges2, a few State Governments and Administrations3, some Bar Associations, etc,4 and a few officers5.

1. S. No. 140.

2. S. No. 97.

3. S. Nos. 182, 154, 164, 106.

4. Indian Federation of Women Lawyers; Poona Bar Association, S. Nos. 121 and 125.

5. An Inspector-General of Police, A Home Secretary to State Government of Kerala; and another Inspector-General of Police, S. Nos. 131 and 143.

735. It is the view of the Chief Justice of a High Court1, that if capital sentence is to serve its primary purpose of acting as a good deterrent, the normal sentence should be the capital sentence, though the lesser sentence of imprisonment for life can be passed for adequate reasons as in the existing law.

1. Chief Justice of a High Court, S. No. 317.

736. That the normal punishment should be death, is also the view of several High Court Judges1. It is the view of a State Government2.

1. A High Court Judge, S. No. 251; Two High Court Judges. S. No. 262.

2. A State Government, S. No. 311.

737. The view of a very senior Advocate of the Bombay High Court1 is that the normal sentence on conviction of murder should be death, unless there are circumstances extenuating or palliating the offence. Aggravating as well as extenuating circumstances it is stated differ, and are peculiar to each case.

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

738. Some District and Sessions Judges have also expressed the view that death should be the normal punishment11.

1. District and Session Judges, S. Nos. 325, 334, 336, 339, 342, 347, 348, 370.

739. Some Members of Parliament have expressed the view that death should be the normal punishment1. This is also the view of an Inspector-General of Police2.

1. Member of Parliament, S. Nos. 232 and 255; Member of State Legislatures, S. No. 224.

2. An Inspector-General of Police, S. No. 263.

740. The reply of the Judicial Section of the Indian Officers' Association of a State1 states that the normal sentence should be death. "To put it the other way would imply an acceptance of the position that capital punishment should be abolished in effect, but at the same time, retaining it in the statute"

1. S. No. 562.

741. Several others have expressed the view that the normal punishment should be death. Amongst these are some District Bar Associations1.

1. District Bar Associations, S. Nos. 220, 233 and 239.

742. One reply1 adds that where the case is heard by a Division Bench and one of the Judges expresses a dissenting view as to the offence or the sentence, the appropriate lesser punishment should be awarded.

1. Indian Federation of Women Lawyers, S. No. 121.

743. According to the third view, the matter should be left to the discretion of the court. This group comprises several categories, namely, those who belong to this group because they would like to emphasise the discretion of the court; those who take this view subject to their answers to other questions, (particularly questions 4 and 5); and those who content themselves by merely disagreeing with the suggestion made in the question.

744. Under this group fall replies received from certain High Courts1, some High Court Judges2, one State Law Commission3, certain State Governments4, certain Members of Parliament5 and State Legislatures6, and a retired High Court Judge7.

1. S. Nos. 187 and 167.

2. S. Nos. 105, 130, 147 and 262.

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

4. A State Government, S. No. 143.

. S. Nos. 207, 210 and 209.

6. S. No. 102.

7. A retired Judge of the High Court of Bombay, S. No. 95.

745. Several other replies1-4 express the same view.

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

2. An Advocate-General, S. No. 229.

3. A Member of Parliament under questions 6(a) and 7(a), S. No. 273.

4. A Member of a State Legislature, S. No. 244.

746. Many other replies are in favour of retaining the existing provisions, i.e., the discretion of the court1. Replies which merely oppose the suggestion to provide that imprisonment for life shall be the normal sentence can be regarded as falling under this group.

1. These are too numerous to be enumerated.

747. Apart from them, several replies point out that it is unwise to interfere with the discretion of the court in the matter of sentence.

748. A helpful elucidation of this view is found in the reply of one High Court1, and we quote the relevant portion:-

"If the death sentence is to serve as a deterrent to the fullest extent that it is expected to, it will not be desirable to make it appear that the normal punishment for murder is imprisonment for life and death sentence will be awarded only in extreme cases. But we are of the view that Capital Punishment should be awarded only in extreme cases of murder. Murders committed after cool calculation or with a bad motive attended by excessive cruelty or bestiality are instances of such extreme cases.".

1. Under reply to question 7; (A High Court), S. No. 167.

749. The reply of the Chief Justice of a High Court1 expresses the view, that there should be no such thing as a normal sentence, whether the capital sentence or the lesser sentence of imprisonment for life. The reply makes four points-

(i) the sentence is in the discretion of the court;

(ii) the discretion being judicial reasons should be, and, as a matter of practice are, given for imposing one sentence or the other;

(iii) the discretion should not be fettered in any way by prescribing any particular sentence as "normal";

(iv) prescribing the sentence of imprisonment for life as the normal sentence may result in diminution of the deterrent effect of the death sentence.

1. Chief Justice of a High Court, S. No. 393.

750. Some of the replies which we have received under question 7(a) or question 7(b) imply that a "normal sentence" for murder exists even now. Thus, in the reply of a High Court Judge1, it has been stated that the "normal sentence" for the offence of murder is death sentence, and if there are extenuating circumstance then the lesser sentence may be awarded; existing provisions, it is stated, are sufficient, and no change is necessary.

1. S. No. 262, reply under questions 7(a) and 7(b).

751. In the reply of a State Government1, it has been simply stated that the existing provisions are sufficient.

1. S. No. 261, reply under questions 7(a) and 7(b).

752. A State Government1 has pointed out, that the sentence must be left to the discretion of the Judge, because in a given situation whether the death sentence or the lesser punishment to be imposed, must be a matter for the discretion of the Judge who decides the case.

1. S. No. 574.

753. Another State Government1 states as follows:-

"Although the extreme penalty is the normal penalty to be given, in practice it is given in very rare cases. The law and practice are so well-settled that it is unnecessary to make any change.".

1. S. No. 580.

754. The reply of a Principal Judge of a City Civil Court and Sessions Judge1 emphasises that both the punishments should be regarded as normal punishments, with a discretion left to the court to award such punishment as the circumstances of the case warrant.

1. Principal Judge 'of a City Civil Court and Sessions Judge, S. No. 353.

755. The reply of a Judicial Officers' Association1 states that it should be left to the Judge to decide whether capital sentence is to be passed or not. The reply adds that if one attempts to codify the law for imposing capital sentence for murder, and to enumerate the aggravating circumstances, then the Judges are bound to consider the aggravating circumstances as one of the grounds for awarding capital punishment. But, then, aggravating circumstances in relation to a particular murder depend upon the facts of a particular case. "So it is not proper to define what aggravating circumstances are. If you define it in any form in a particular case, it may appear in a different form and thereby it might prejudice the conclusion to be arrived at in a given case".

1. An Association of Judicial Service Officers, S. No. 373.

756. The reply of another Judicial Officers' Association,1 is also opposed to any provision that the normal sentence should be imprisonment for life.

1. Association of Judicial Service Officers, S. No. 374.

757. A District and Sessions Judge1 has stated that there should be nothing like a "normal" sentence for murder. The facts of the particular case should decide what is the appropriate sentence.

1. A District and Sessions Judge, S. No. 331.

758. The reply of another District and Sessions Judge1 points out that there is a discretion in the court in awarding the punishment, and if imprisonment for life is made the normal sentence, it would whittle down the whole object of the present provisions and it would also do away with the object underlying capital punishment.

1. A District and Sessions Judge, S. No. 444.

759. The reply of an Additional Sessions Judge1 states that the existing law is the only provision to meet the ends of justice. The reply adds that Indian Judges are slow in awarding the death sentence because of their spiritual background, and that they do seek grounds for awarding the lesser punishment of imprisonment for life. The reply opposes the making of a provision that the imprisonment for life should be the normal sentence, because, in that case, a practice may set in the Sessions courts of awarding only the sentence of imprisonment for life.

1. An Additional Sessions Judge, S. No. 367.

760. The reply of an Assistant Judge1, while stating that at present the courts award the sentence of death in cases of deliberate murder, in cases where a murder is committed to facilitate the commission of some offence or to avoid arrest for an offence and for other heinous cases of murder, takes care to add, that it is not possible to define aggravating circumstances with any mathematical precision. What is an aggravating circumstance under one condition may not be so in other cases.

1. An Assistant Judge, S. No. 340.

761. The reply of the majority of the Presidency Magistrates in a Presidency Town1 has stated, that, considering the variety of human methods and motives for the commission of murders, it could be left to the court to consider what under the particular circumstance of each case is the proper sentence to award. It is possible that in the absence of any law laying down the aggravating circumstances under which the sentence should be death, the various judges trying murder cases might differ, and one judge may hold a particular set of circumstances to be aggravating, while another may not. But all the circumstances cannot be provided for by any law, and, therefore, no provision in the law enlisting those aggravating circumstances can be exhaustive.

1. S. No. 549.



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