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Report No. 156

Chapter III

Death Penalty

13.06. 1. The Commission carefully considered the question from several angles after making comparative study of the law of other countries and after examining various judgments till date rendered by the apex Court.

We reiterate the recommendation of Law Commission in its 35th Report for retention of the capital punishment, but to be awarded in accordance with the guidelines laid down by the Supreme Court.

(Para. 3.07)

2. It is already recommended to retain section 302 as it is instead of reading any limitations into the same regarding imposition of death sentence for the reason that it is impossible to put them in any straight jacket for the reason that what circumstances make a case a "rarest of rare one" cannot be fixed by way of a legal provision.

The Law Commission recommends that no change is required in section 302 as is proposed in clause 125 of the Bill.

(Para. 3.10)

3. Clause (3) of section 302 of I.P.C. (Amendment) Bill, 1978 is providing for running of sentence of life imprisonment consecutively instead of concurrently. It will be a retrograde step in accord with deterrent and retributive theories of the past as observed by the Supreme Court.

Therefore, we do not approve the proposed clause (3) of section 302 in the Bill.

(Para. 3.12)

4. Section 303 of the Indian Penal Code provides:

"303. Punishment for murder by life convict.-Whoever, being under sentence of imprisonment for life commits murder, shall be punished with death."

The Supreme Court in Mithu v. State of Punjab, (1983) 2 SCC 277, declared that the aforesaid provisions of section 303 violate the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution.

We have carefully considered the various provisions of the Bill and feel that after section 303 is omitted, the second part of section 307 which provides that "when any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death" cannot be retained on the same analogy and principles on the basis of which section 303 has been held to be arbitrary and oppressive and violative of Article 14 and 21 of the Constitution. We accordingly recommend deletion of the second part of section 307.

(Para. 3.14)



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