Report No. 35
762. Aggravating circumstances.-
The latter part of question 7 of our Questionnaire dealt with what should be aggravating circumstances. This was intended for reply only by those who were 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. Therefore, those who were of a different view on that point, i.e., either those who regarded death as the ordinary punishment, or those who were against any punishment being regarded as the normal punishment, naturally would not be concerned with this part.
763. The replies on this point may be said to fall under three groups. The first group comprises those who are of the view that aggravating circumstances need not be defined. This view has been expressed by one High Court1. One State Government2 has, in its reply, emphasised that no exhaustive list of either extenuating or mitigating circumstances can be prepared.
1. A High Court, S. No. 140.
2. A State Government, S. No. 182 under question 7(b). Its reply to question 7(a) states that the normal sentence should be death.
764. It has been pointed out in the reply of an Advocate1 who is also a Member of a State Legislature that it is not possible to give an arm-chair definition of aggravating circumstances.
1. S. No. 226.
765. Several District and Sessions Judges have stated that aggravating circumstances cannot be codified1.
1. S. Nos. 381, 383 and 399.
766. It has also been pointed out by a District and Sessions Judge that aggravating circumstances cannot be reduced to mathematical calculations and that they will depend on the facts of each case. As long as the ingenuity or brutality of a criminal cannot be put forth in certain terms, those circumstances also cannot be mentioned1.
1. S. No. 416.
767. Another District and Sessions Judge1 has stated that if one codifies the law for imposing the sentence of death for murder, the Judges are bound to consider the aggravating circumstances as one of the grounds for awarding the capital punishment. Aggravating circumstances, it is stated, depend on the facts of each case, and it is not proper to define them. If one defines them in any form in a particular case, they may appear in a different form, and this might prejudice the conclusion to be arrived at in a given case.
1. S. No. 440.
768. A City Civil Court and Sessions Judge1 has also stated that extenuating circumstances cannot be formulated and must depend on the facts of each case.
1. S. No. 434.
769. The second group comprises those who, while suggesting certain aggravating circumstances, make it clear (in some form or other) that the situations which they suggest are merely examples, and not intended to be exhaustive. The majority of the replies seem to fall under this group. Thus, certain High Court Judges1 have suggested, as examples of aggravating circumstances, murder by people standing in a fiduciary relationship (master and servant), murder involving family relationship, sabotage and espionage, and political murders.
1. S. No. 130, reply to question 7(b). But the reply to question 7(a) states that the discretion of the court should continue.
770. A High Court Judge1 has suggested that the normal rule relating to the discretion regarding sentence should be not to impose the sentence of death unless there are aggravating circumstances. Examples of aggravating circumstances given in his reply are-enormity of the crime, the offence being cold-blooded and premeditated accompanied with unnecessary brutality, etc., or a murder by a life convict under section 302, or a dacoity with murder under section 396.
1. S. No. 397, reply to question 7(b) read with question 6.
771. Another High Court Judge1 has (without a claim to exhaustiveness), stated that the following may be regarded as factors which may be taken into consideration in determining whether the offence of murder has been committed in aggravating circumstances to justify the sentence of death. He has, at the same time, pointed out that the presence of one single factor may not be sufficient, but all or some of them may justify the extreme punishment. The factors which he has mentioned are
(i) murder was unprovoked, deliberate and planned;
(ii) murder was motivated by greed or other considerations;
(iii) unfair advantage taken;
(iv) murder for the second time after conviction;
(v) unusual cruelty;
(vi) murder by hardened criminals.
1. A High Court Judge, S. No. 230.
772. Another reply1 gives, as examples, extreme cruelty or extreme depravity of mind, accompanied by extreme disregard of the interests of the society, premeditation, deliberate, cold-blooded, brutal murders and the like; the reply, however, makes it clear that this may be counter-balanced by extenuating circumstances.
1. Law Secretary to a State Government, S. No. 251.
773. One of the Bar Councils1-2 states that the aggravating circumstances would be such as unnecessary cruelty, cold-blooded act, planning and pre-meditation.
1. A Bar Council, S. No. 159.
2. To the same effect is the reply received from an eminent member of the Bar Council of India, S. No. 161.
774. A State Law Commission1 has stated that aggravating circumstances need not be catalogued.
1. A State Law Commission, S. No. 101.
775. According to a District and Sessions Judge1, no enumeration of aggravating circumstances can be exhaustive, but if it is a case of cool and calculated murder or murder brought about by design or by creating a feeling of confidence in the victim, then capital punishment would be justified. Similarly, if a person is murdered merely for money or if it is done being blinded by a feeling of revenge, not with a laudable object, capital punishment may be justified.
1. S. No. 330.
776. According to a District and Sessions Judge in the State of Maharashtra1, aggravating circumstances depend upon the singular facts of each particular case, and cannot, therefore, be enumerated. The paramount consideration according to him should be the threat to the community if the lesser punishment were to be imposed. Wanton disregard for human life or a challenge to the Government or its officers, when resulting in death, may be punishable by imposing the death sentence.
1. S. No. 341.
777. Another District and Sessions Judge1 has stated that some of the aggravating circumstances can be described as
(i) heinousness of the offence:
(ii) no provocation;
(iii) revolting nature of the crime;
(iv) filthy lucre which motivated the crime.
1. S. No. 353.
778. We now come to the third group of replies, namely, those who state the aggravating circumstances without stating that what they suggest are mere examples. Various suggestions have been made. For example, aggravating circumstances have been listed as professional murder1, malice, acquired habit, innate instinct and company in the commission of murder2, spoiling the chastity, pre-planned murder3, motive of gain and advantage, cruelty and like conditions4, and danger of further revengeful action5.
1. S. No. 119.
2. S. No. 122.
3. A Pleader, Madras, S. No. 109.
4. A Member, Bar Council of Madras, S. No. 104.
5. An Inspector-General of Prisons, S. No. 130.
779. In the view of a distinguished Member of the Rajya Sabha1, the normal sentence for murder should be imprisonment for life and the sentence of death may be awarded for aggravating circumstances. Aggravating circumstances would be cold-blooded murder, but the reply points out that very specialised opinion will have to be sought before coming to any conclusion that the circumstances have been so aggravating that capital punishment has been called for. The reply also emphasises that the judiciary should fully consult experts in the medical and sociological field to find that physical, mental and emotional imbalance in a murderer before the law could decide the course of maximum action, namely, the capital punishment.
1. S. No. 245.
780. According to the reply of Law Minister of a State1, the normal sentence should be imprisonment for life, and the aggravating circumstances should be
(i) deliberate murders;
(ii) use of lethal weapons;
(iii) wanton cruelty and malignity;
(v) nature of injury;
(vii) murder against public servant in discharge of duty; and
(viii) murder in course of jail breaking.
1. S. No. 313.
781. In the reply of the Law Minister of another State1, it has been stated that, generally speaking, the aggravating circumstances should be extreme cruelty or extreme depravity of mind, accompanied by extreme disregard of the interest of the society, pre4neditation, deliberate cold-blooded and brutal murders and the like. The reply, however, takes care to point out that aggravating circumstances could be counter-balanced by extenuating circumstances.
1. S. No. 253.
782. In the reply of a Member of a State Legislative Council1, emphasis has been placed (while stating the aggravating circumstances) on pre-planned, malicious, daring, organised and brutal murders.
1. S. No. 257.
783. In the reply of a Member of a State Legislative Council1, pre-meditated murder, dacoity combined with murder and group murders are enumerated as aggravating circumstances.
1. S. No. 248.
784. In the reply of a Member of the State Legislature in the U.P.1, the aggravating circumstances are enumerated as
(i) pre-planned and calculated murder;
(ii) murderer being a habitual criminal.
1. S. No. 243.
785. In the reply of an Inspector-General of Prisons1, it is stated that the aggravating circumstances should be pre-meditation or deliberation and the brutality accompanying the offence.
1. S. No. 264.
786. One reply1, though not strictly falling under question 7(b), states that murder itself is the highest aggravating circumstance, and that by being over-lenient we have encouraged a state of affairs whereunder private vengeance is fast replacing public retaliation. One murder, it is stated, is retaliated by another murder, and this vicious chain goes on, but in the courts it is not possible to prove that the particular murder is the result of a previous murder, and so on.
1. A District and Sessions Judge in Gujarat, S. No. 212.
787. In the reply of a District and Sessions Judge1 it has been stated that the aggravating circumstances should include the degree of cruelty accompanying the murder, deliberate, cold-blooded murders, and murders of innocent persons who have not given any cause or grievance.
1. S. No. 377.
788. According to the reply of another District and Sessions Judge1, aggravating circumstances would be murders committed as a result of conspiracy, those committed for facilitating dacoity, robbery or theft, and murders which are committed without any extenuating reasons and with cold calculation.
1. S. No. 380.
789. In the opinion of another District and Sessions Judge1, the aggravating circumstances are-when death is caused in furtherance of a felony of violence; when death is caused to a person who comes to make a lawful arrest; heinous murder specially when after the commission of murder the dead body is disposed of in such a manner as not to get a chance of decent burial or cremation.
1. S. No. 445, reply to questions 7(a) and 7(b).