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Report No. 156

Chapter III

Death Penalty

Part I

Retention of Capital Punishment

3.01. Clause 125 of the Bill seeks to substitute existing section 302 by inserting the following provisions:

"302 (1) Whoever commits murder shall, save as otherwise provided in sub-section (2), be punished with imprisonment for life and shall also be liable to fine.

(2) Whoever commits murder shall-

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the union or of a member of any police force or of any public servant and was committed

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under section 37 or section 129 of the said Code; or

(e) if the murder has been committed by him, while undergoing sentence of imprisonment for life, and such sentence has become final, be punished with death or imprisonment for life, and shall also be liable to fine.

(3) Where a person while undergoing sentence of imprisonment for life is sentenced to imprisonment for an offence under clause (e) of sub-section (2), such sentence shall run consecutively and not concurrently."

The basic issue which needs consideration is whether the capital punishment should be abolished?

3.02. The framers of the Bill intended to list out the cases when death sentence should be awarded. The question is whether such categories can be or may be prescribed thereunder. We would like to examine the punishment as death penalty in detailed manner and give our conclusions. However, before taking up the examination of the relevant provision, it would be desirable to refer to '1-P development and the judicial response on the subject.

The controversy of capital punishment is an age-old phenomenon. For the past few decades there has been a move to abolish death sentence. There has been a growing public opinion in favour of it. Some countries have even abolished the death penalty. In Britain, there has been a move for restoration of death penalty supported by substantial sections of public opinion.

There has been a worldwide feeling of humanistic approach to the criminals and punishment. Efforts have been made and are being made to make punishment liberal and reform the prisons. For quite some time, there has been a move to abolish death sentence. There has been a growing public opinion in favour of it. Though it has not been abolished so far, the law has growingly become liberal in this respect.

In all the offences falling under sections 121, 132, 194, 302, 305, second Part of 307 and 396 of the Indian Penal Code provide for punishment of death or in the alternative, imprisonment for life. Thus, it is seen that all grave offences are made punishable with death sentence. Death sentence is executed in India by hanging by a rope until the person is declared dead.

3.03. In India the constitutionality of death penalty for murder provided under section 302 of the Indian Penal Code and the sentencing procedure embodied in section 354(3) of the Code of Criminal Procedure, 1973 was challenged in the Supreme Court on the ground that they are violative of Articles 14, 19 and 21 of the Constitution of India.

The majority view of the Constitution Bench, to whom the matter was referred, held that the provisions of death penalty as an alternative punishment for murder and also the sentencing procedure in section 353(3) Code, did not violate Articles 14, 19 and 21 of the Constitution of India. The Supreme Court, however, upheld the constitutional validity of a death penalty.

Thus, in Jagmohan Singh v. State of Punjab, (1973 (2) SCR 541 the Supreme Court was invited to dwell upon the constitutional validity of such a wide, unguided and uncontrolled judicial discretion to make a choice between "death" and "life" of a convict. It was forcefully argued before the five-member Bench that such a discretion results in discrimination and involves arbitrariness violating Article 14 of the Constitution.

The Court rejected the argument and justified such a wide judicial discretion owing to impossibility of laying down sentencing norms as facts and circumstances of no two cases are alike and, wrong discretion in matter of sentence, if any, is liable to be corrected by superior courts.

3.04. Again in Bachan Singh v. State of Punjab, AIR 1980 SC 898 the Supreme Court reacting to the argument that the sentencing procedure embodied in section 354(3) of Cr. P.C. allowing death sentence only in undefined and unguided "special reasons" is unfair, unreasonable and unjust, and is, therefore, violative of Articles 14, 19 and 21 of the Constitution, showed its reluctance to formulate rigid standards to determine what could be "special reasons".

But it advised the courts to pay due regard to the crime and criminal, and weigh relatively the aggravating and mitigating factors and to resort to the death sentence in the most exceptional class of cases - "the rarest of rare cases" - when the alternative option is unquestionably foreclosed.

Section 354(3) is in the following terms:

"When the conviction is for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence."

From a reading of section 354(3) of Cr. P.C. and other related provisions it is clear that for making the choice of punishment or for accepting the existence in that context, the court must pay due regard both to the crime and the criminal. The relative weight that can be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. In imposing sentence the main aspects of the character and magnitude of the offence and the court has to keep in view the proportion which must be maintained between offence and the penalty and the other attendant circumstances that exist in the case.

The Supreme Court in a series of cases ruled that death penalty be awarded in "rarest of rare" cases.

In Machhi Singh v. State of Punjab, 1983 (3) SCC 470 a Bench of three Judges of the Supreme Court having noted the principles laid down in Bachan Singh's case (supra) regarding the formula of 'rarest of rare cases' for imposing death sentence, observed that the guidelines indicated in Bachan Singh's case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. It was further observed as under:

"If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."

Likewise in Allauddin Mian v. State of Bihar, 1983 (3) SCC 5 the same view has been reiterated thus:

"However, in order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should, as observed in Bachan Singh's case, AIR 1980 SC 898, be reserved for the rarest of rare cases which are of a exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct.

It serves a three-fold purpose: (1) punitive, (ii) deterrent, and (iii) protective. That is why this Court in Bachan Singh's case observed that when the question of choice of sentence is under consideration the court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community.

Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only."

In Mithu v. State of Punjab, 1983 (2) SCC 277 the Constitution Bench, held:-

"The gravity of the offence furnishes the guidelines for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, the motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hallmarks of justice."

In Kehar Singh v. Delhi Administration, 1988 SCC 389 similar principles are reiterated and it is further observed "it is a gruesome murder committed by the accused who was employed as security guard to protect the Prime Minister. It is one of he rarest of the rare cases in which extreme penalty is called for".

The aforesaid principles have been approved in many later cases1.

1. See K.J. Chatterjee v. State, 1994 (2) SCC 220; Bhairon Singh v. State of Rajasthan, 1994 (2) SCC 467; Gauri Shankar v. State of Tamil Nadu, JT 1994 (3) SCC 54; Amritlal Someshwar Joshi v. State of Maharashtra, 1994 (3) Crimes 197.

3.05. The campaign against capital punishment no doubt has gained momentum in recent years. In 1962, a resolution has moved in the Lok Sabha for the abolition of capital punishment. The Government assured the House to refer the matter to the Law Commission of India and consequently the matter was referred to the Law Commission. The Law commission after considering the matter thoroughly, felt that in the particular circumstances existing in India, it cannot risk the experiment of abolition of capital punishment. In its 35th report the Commission has elaborately dealt with the retention of death penalty and ultimately observed as under:

"The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.

It is difficult to rule out the validity of the, or the strength behind many of the arguments for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.

Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of capital punishment.

Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.

On a consideration of all the issues involved, the Commission is of the opinion that capital punishment should be retained in the present state of the country."

3.06. However, the Law Commission has recommended that children below 18 years of age at the time of the commission of the offence should not be sentenced to death. The Criminal Procedure Code, 1973 made a further progress in the direction of liberalisation. The shift towards liberalisation in imposing life imprisonment as against death sentence in capital offences has also been highlighted by the Supreme Court in Sarweshwar Prasad Sharma v. State of Madhya Pradesh, AIR 1977 SC 2423 in the following words:

"The recent benign direction of the penal law is towards life sentence as a rule and death as an exception, awarding of which must be accompanied by recorded 'reasons."

Thus in cases where there are extenuating circumstances, the accused is punished with life imprisonment. In the absence of extenuating circumstances and in the "rarest of rare cases", capital punishment is awarded.

3.07. We have carefully considered the question from several angles after making comparative study of the law in 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.

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