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Report No. 35

Topic Number 40

Whether normal sentence should be death

791. Whether normal sentence should be death.-

The other alternative, namely, whether a provision should be inserted to the effect that the normal sentence for murder shall be death, may now be considered. Some of the replies received to question 7 have suggested the insertion of such a provision1.

1. Replies to Question 7 have been summarised separately. See paras. 727-761, supra.

792. There are certain objections to the adoption of this course. In the first place, it would not be in accord with the change made in section 367(5), Code of Criminal Procedure in 1955. Section 367(5) of the Code of Criminal Procedure, as it stood before the amendment of 1955, required the court to give reasons for imposing the lesser sentence. Though that sub-section did not say in so many words that the normal sentence for a capital offence shall be death, yet many courts had interpreted it as having that effect1.

That provision was deleted in 1955, and it would now require strong grounds to support a decision to insert the suggested provision. Secondly, it would constitute a fetter on the discretion of the court, and we may note that a large number of replies received to question 4 of the Questionnaire are in favour of retaining the discretion. Thirdly, there appears to be some force in the argument, that the highest penalty of the law should not be imposed as a matter of course. Fourthly, if such a provision is inserted, difficulties may arise where there are extenuating circumstances.

1. See Analysis of case-law, Cases No. 3, 40, 61, 64, 65, 66, 80, 84.

793. We are not, therefore, inclined to recommend any such change in the law.

794. There is, we find, a conflict of decisions as to how far death is the normal sentence even after the amendment of section 367(5) of the Code of Criminal Procedure in 1955. In a recent Bombay case1, the High Court considered in detail the effect of the amendment of section 367(5), Criminal Procedure Code in 1955. The High Court took the view that the amendment did not affect the question regarding death sentence.

In its view, in regard to the exercise of the discretion, even section 367(5), as it stood before the amendment, did not offer any guidance, and therefore the deletion of that portion of the section could not affect the exercise of discretion. "A discretion has to be exercised judicially. It must also appear that it is so exercised. This can be done if reasons for the exercise of the discretion are given in the order given in exercising the discretion. Whether the statute requires it or not, reasons have to be given. The section could, therefore, have no relevance on the decision itself.2.

1. State of Maharashtra v. Gourishankar, (1966) 68 Bom LR 236: AIR 1966 Bom 179.

2. V. Thevar v. State of Madras, AIR 1957 SC 614.

795. The court stated, that the view taken by the Supreme Court, namely, that unless there are extenuating circumstances, the normal punishment for murder should be death, would prevail in spite of the amendment of 1955 in section 367(5) (even though the Supreme Court case related to an offence before the amendment).

796. The court cited certain Bombay decisions before the 1955 Amendment where the view was taken that for murder the normal sentence is death1-2. It did not accept the argument of the counsel for the accused that the amendment of 1955 was intended to change the old position that death is the normal sentence for a capital offence. It agreed with the decisions of the Allahabad3 and Madras4 High Courts on the point.

In the Allahabad case, the view was taken that the amendment of section 367 did not affect "the law regulating punishment under the Penal Code" and that the amendment related to the procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty, but they cannot depart from sound judicial considerations in preferring the lesser punishment. A court may not record reasons for not passing the death sentence, but if it awards life imprisonment for a cold-blooded and revolting murder, the absence of reasons will not save its preference from being unjudicial.

1. State v. Airarsing, AIR 1956 Bom 231.

2. State v. Pandurang, AIR 1956 Bom 711 (714).

3. Ram Singh v. State, AIR 1960 All 748.

4. Veluchami (in re:), AIR 1965 Mad 48.

797. In the Madras case, the Sessions Judge had not given any reason for imposing the lesser sentence. The High Court did not interfere with the sentence, as there was no application for enhancement. But it observed that the case was one in which the extreme penalty of the law definitely appeared to be called for.

798. The Bombay High Court's attention does not appear to have been drawn to an Andhra Pradesh case1, holding that, after the amendment of 1955, the theory that death is the normal sentence for capital offence does not hold good.

1. Amalla Koleshwear Rao (in re:), AIR 1963 AP 240.

799. The conflicting views as to whether, after the amendment of section 367(5), Criminal Procedure Code in 1955, death sentence is the "normal sentence", are further illustrated by the case law discussed in the under¬mentioned decision1. The provision which we propose2 will, it is hoped, settle this controversy also, as we are recommending that reasons must be given in either case-and that will re-emphasise that the sentence is entirely in the discretion of the court.

1. Rajnikant v. State, AIR 1967 Goa 21 (FB), para. 22, and paras. 46-52.

2. See amendment proposed to section 367(5) and discussion regarding question 8.

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