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Report No. 156

Part IV

Punishment for Murder by Life Convict

3.13. Section 303 of the Indian Penal Code provides:

"Whoever being under sentence of imprisonment of life commits murder shall be punished with death."

The Law Commission in its 42nd Report did not recommend any change in the aforesaid section since it is "very rarely applied".

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. Chinnappa Reddy, J. in his concurring opinion observed:

"it is impossible to uphold section 303" as valid as it excludes judicial discretion. He added that "the scales of justice are removed from the hands of the judge as soon as he pronounced the accused guilty of the offence. So final, so irrevocable and so irrestitutable (sic irresuscitable) is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all."

Clause 126 of the Bill seeks to omit section 303 of the Indian Penal Code.

3.14. We have carefully considered the various provisions of the Bill and feel that if section 303 is omitted the second part of section 307 which provides that "when a 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 which hold section 303 to be arbitrary and oppressive and violative of Articles 14 and 21 of the Constitution. We accordingly recommend deletion of the second part of section 307.

The Indian Penal Code Back

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