Report No. 142
9.34. Guidelines as regards punishment to be imposed: cases relating to offences in which the offender is charged with an offence punishable with death or imprisonment for life but the competent authority on an application being made in this behalf by the offender or offenders is satisfied from the perusal of the records that accepting the acts attributed to the offender and the material supporting the prosecution case at its face value, the offence deserves to be reduced to one under section 304(1) or 394(2) or 326.-
In cases of this category, the task of the Competent Authority would be extremely difficult and delicate. It is in such cases that the apprehension with regard to the shaking of the confidence of the public in the administration would understandably come into play in a significant manner. Experience shows that in several cases, the statements recorded and the material gathered by the police taken at its face value would go to show that it is a case of-
(1) exercise of right of private defence, or
(2) the offender having acted under grave and sudden provocation, or
(3) the death being caused by some rash or negligent act or mischance or mishap rather than a case falling under the category of culpable homicide amounting to murder.
For instance, an incident might have occurred at the house of the offender which was surrounded by a hostile aggressive crowd which had gathered in front of his house or surrounded his house with the members of the crowd armed with deadly weapons and administering threats. In such an event, if the offender uses reasonable force in exercise of his right of private defence, though technically exceeding what the law permits, the act may fall under a provision constituting a less serious or lesser offence.
Or there may be a case where in the heat of moment, the offender gives a kick or a fist blow on the body of the victim who has a diseased vital organ. In such cases, it would be futile to make the offender undergo rigours of an arduous trial which may visit the offender with considerable avoidable misery even though he may be prepared to plead guilty of a lesser offence. An offender may, therefore, be permitted to invoke the machinery under the scheme exercising his preparedness to accept and to plead guilty to any lesser offence as the court might consider to govern the facts and circumstances of the case.
In that event, the Competent Authority may after hearing the public prosecutor, the aggrieved party, or the next of kin of the victim and the offender accept the plea of guilty upon being wholly satisfied that the act attributed to the offender and the material in support thereof taken as accepted at its face value would constitute a lesser offence. But even in that event, the court may award a minimum jail term of 4 years R.I. in offences falling under section 304(1), 3 years R.I. in offences falling under section 304(2) and minimum 11/2 years R.I. where the offence would fall under section 326 under the Indian Penal Code so that the rule of law is upheld, the public confidence is not shaken, and the offender does not escape lightly.
It is just and fair with regard to matters falling in this category to evolve a formula similar to the one which has been recommended in respect of the offences to which P.O. Act and section 360 of the Cr. P.C. are applicable, namely, that the accused may make an application for pleading guilty to a lesser offence and the Competent Authority may have the power either to accept it and impose appropriate sentence or to reject it subject to the applicability of the provision that the making of the application will not result in any prejudice to the offender invoking the scheme and that even the factum of the making of the application would be treated as confidential and may not be adhered to at the trial.
It may also be provided that the prosecutor who appears before the Competent Authority shall be disqualified from appearing at the regular trial or in the appeal arising from an order passed by the trial court. The Commission is of the opinion that a provision in the aforesaid regard may be made after public debate and full consideration of pros and cons if considered acceptable on due deliberation.
If it is considered to be inappropriate at the present juncture, the offences punishable with death or imprisonment for life may altogether be excluded from the purview of the scheme. In the absence of a public debate, the Commission is not in a position to make any firm recommendation in this regard though the Commission is prima facie in favour of it.