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Report No. 156

Part II

Specification of Categories of Awarding Death Penalty - Not Necessary

3.08. We now turn to examine the second issue arising out 'proposed sub-section (2) of section 302 occurring under clause 125 of the Bill, namely, whether categories of cases should be specified for awarding death penalty. The categories specified in the proposed sub-section (2) of section 302 is not exhaustive.

Section 354(3) of the Code of Criminal Procedure, 1973, as has been seen earlier, mandates the judge called upon to exercise his choice between the alternative sentence of death and imprisonment for life to state "special reasons" for the death sentence awarded. The provision, in the light of its legislative history, in unmistakable terms makes it evident that imprisonment for life is a rule in case of offences punishable with death or in the alternative imprisonment for life and it is only in exceptional cases, for special reasons to be recorded, death sentence can be imposed.

But it is nowhere indicated in either the Code of Criminal Procedure or any other statutory instrument as to what constitutes the so-called "special reasons" justifying imposition of sentence of death. This is, again, entirely left to the discretion of the court1.

1. Balwant Singh v. State of Punjab, AIR 1976 SC 280: AIR 1976 SC 2196: AIR 1977 SC 2423.

3.09. Before the amendment of section 367(5) of the Criminal Procedure Code, 1898 by Act 26 of 1955, the normal rule was to impose the sentence of death on a person convicted of a capital offence and if a lesser sentence was to be imposed, the court was required to record reasons in writing.

But by the aforesaid amendment, the provision in section 367(5) was omitted and consequently, the court became free to award either death sentence or life imprisonment and no longer death sentence was the rule and life imprisonment the exception. Interpreting the liberal provision brought about by legislation, Justice Krishna Iyer in E. Annamma v. State of Andhra Pradesh, AIR 1974 SC 799, observed:

"That the disturbed conscience of the State on the vexed question of legal threat of the life by way of death sentence has set to express itself legislatively. The screen of tendency being towards cautious, partial abolition and a retreat from total retention."

Justice Krishna Iyer, admitted the impossibility to "feed into a judicial computer" all the situations warranting life imprisonment or death sentence.

He, however, suggested factors to be taken into consideration while making a choice between death sentence and life imprisonment like personal, social, motivational and physical circumstances: horrendous features of the crime; hapless and helpless state of the victim, intense suffering endured by prison, torture, and excruciating death penalty hanging over head of the convict consequent of the legal process.

One can also visualise even in cases falling under the proposed sections 302(2)(a) or (b), (c) or (d), that there may be extenuating, mitigating circumstances which may deter imposition of death sentence, and thus again the principle laid down in Jagmohan Singh v. State of Uttar Pradesh, 1973 (2) SCR 541 and Bachan Singh's case, 1980 (2) SCC 684 as discussed earlier comes into play.

This is even statutorily recognised in section 354(3) of Code of Criminal Procedure 1973 which enjoins that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts. Therefore, in spite of the proposed amendment in the I.P.C. Bill under section 302(2), the situation will be virtually be the same.

3.10. Therefore, we are of the view that it is better 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. Therefore, we would not recommend any change in section 302 as is proposed in clause 125 of the Bill.

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