PETITIONER:
BISHNU DEO SHAW @ BISHNU DAYAL
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT22/02/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
KRISHNAIYER, V.R.
CITATION:
1979 AIR 964 1979 SCR (3) 355
1979 SCC (3) 714
CITATOR INFO :
R 1979 SC1384 (10)
O 1980 SC 898 (202)
MV 1982 SC1325 (61)
ACT:
Demand of death for murder, rationale of section 302
I.P.C. vis-a-vis-Section 354(3) of the Crl. P.C. 1973-
"Special Reasons", meaning of-Section 354(3) 360, 361 of
Crl. P.C.-Scope of.
HEADNOTE:
The appellant was convicted by the Additional Session's
Judge Alipore for the murder of his son and sentenced to
death. The reason given by the Sessions Judge was that the
murder was "cruel and brutal" and that the facts showed the
"grim determination" of the accused to kill the deceased.
The Sessions Judge made no reference to the motive of the
accused for the commission of the murder. The High Court
while confirming the conviction and sentence observed that
the accused had previously murdered his wife, suspecting her
infidelity that the sentence of imprisonment imposed on him
for the murder of his wife had no sobering effect, that he
suspected that the deceased in the present case was not his
own son and so he murdered him without any mercy or remorse,
and that he, therefore deserved no mercy.
Allowing the appeal by special leave limited to the
question of sentence, the Court
^
HELD: 1. There were no "special reasons" justifying the
imposition of the death penalty. [371 F]
(a) The Sessions Judge was wrong in imposing the
sentence of death without even a reference to the reason why
the appellant committed the murder. [371 C]
(b) The observation of the High Court that the
appellant deserved no mercy because he showed no mercy
smacks very much of punishment by way of retribution. [371
C]
(c) From the evidence, it is clear that the appellant
was a moody person who had for years been brooding over the
suspected infidelity of his wife and the injury of having a
son foisted on him. The mere use of adjectives like "cruel
and brutal" does not supply the special reasons contemplated
by section 354(3) of the Criminal Procedure Code, 1973.
[371D-E]
Rajendra Prasad v. State of Uttar Pradesh, [1979] 3
S.C.R. 78, applied.
2. "Special reasons" are reasons which are special with
reference to the offender, with reference to constitutional
and legislative directives and with reference to the times,
that is, with reference to contemporary ideas in the fields
of criminology and connected sciences. Special reasons are
those which lead inevitably to the conclusion that the
offender is beyond redemption, having due regard to his
personality and proclivity, to the legislative
356
policy of reformation of the offender and to the advances
made in the methods of treatment etc. Section 354(3) of the
1973 Code has narrowed the discretion of sentence for
murder. Death sentence is ordinarily ruled out and can only
be imposed for "Special reasons". Judges are left with the
task of discovering "special reasons". [368 D-E, 370E-F]
(a) Apart from Section 354(3), there is another
provision in the Code which also uses the significant
expression "Special reasons". It is Section 361, Section 360
of the 1973 Code re-enacts, in substance, Section 562 of the
1898 Code and provides for the release on probation of good
conduct or after admonition any person not under twenty-one
years of age who is convicted of an offence punishable with
fine only or with imprisonment for a term of seven years or
less, or any person under twenty-one years of age or any
woman who is convicted of an offence not punishable with
death or imprisonment for life, if no previous offence is
proved against the offender, and if it appears to the Court
having regard to the age, character or antecedents of the
offender, and to the circumstances in which the offence was
committed, that it is expedient that the offender should be
released on probation of good conduct or after admonition.
If the Court refrains from dealing with an offender under
Section 360 or under the provisions of the Probation of
Offenders Act, or any other law for the treatment, training,
or rehabilitation of youthful offenders, where the Court
could have done, so, Section 361, which is a new provision
in the 1973 Code makes it mandatory for the Court to record
in its judgment the "Special reasons" for not doing so.
Section 361 thus casts a duty upon the Court to apply the
provisions of Section wherever it is possible to do so and,
to state "special reasons" if it does not do so. [368F-H,
369A-B]
(b) In the context of Section 360, the "Special
reasons" contemplated by Section 361 must be such as to
compel the Court to hold that it is impossible to reform and
rehabilitate the offenders, after examining the matter with
due regard to the age, character and antecedents of the
offender and the circumstances in which the offence was
committed. This is some indication by the legislature that
reformation and rehabilitation of offenders, and not mere
deterrence are now among the foremost objects of the
administration of criminal justice in our country. Section
361 and Section 354(3) have both entered the Statute Book at
the same time and they are part of the emerging picture of
acceptance by the Indian Parliament of the new trends in
criminology. Therefore, the personality of the offender as
revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to reform
must necessarily play the most prominent role in determining
the sentence to be awarded. Special reasons must have some
relation to these factors. [369B-E]
3. Criminal justice is not a computer machine. It deals
with complex human problems and diverse human beings. It
deals with persons who are otherwise like the rest of us,
who work and play, who laugh and mourn, who love and hate,
who yearn for affection and approval, as all of us do, who
think learn and forget. Like the rest of us they too are the
creatures of circumstances. Heredity, environment, home
neighbourhood, upbringing, school, friends, associates, even
casual acquaintences, the books that one reads, newspapers,
radio and TV, the economics of the household, the oppor-
357
tunities provided by circumstances and the calamatics
resulting therefrom the success and failure of one's
undertakings the affairs of the heart, ambitions and
frustrations, the ideas and ideologies of the time, these
and several other ordinary and extra-ordinary incidents of
life contribute to a person's personality and influence his
conduct. Differently shaped and differently circumstanced
individuals react differently in given situations. A judge
has to balance the personality of the offender with the
circumstances the situations and the reactions and choose
the appropriate sentence to be imposed. A judge must try to
answer a myriad question such as was the offence committed
without premeditation or was it after due deliberation ?
What was the motive for the crime ? Was it for gain ? Was it
the outcome of a village feud ? Was it the result of a petty
drunken, street brawl, or a domestic bickering between a
helpless husband and a helpless wife ? Was it due to sexual
jealousy ? Was the murder committed under some, stress,
emotional or otherwise ? What is the background of the
offender ? What is his social and economic status ? What is
the level of his education or intelligence ? Do his actions
betray a particularly callous indifference towards the
welfare of society, or on the other hand, do they show a
great concern for humanity and are in fact inspired by such
concern ? Is the offender so perpetually and
constitutionally at war with society that there is no hope
of ever reclaiming him from being a menace to society ? Or
is he a person who is patently amenable to reform ? [369 E-
H, 370 A-C]
(a) Judges in India have the discretion to impose or
not to impose the death penalty. It is one of the great
burdens which judges in this country have to carry. In the
past, the reasons which weighed in the matter of awarding or
not awarding the sentence of death varied widely and there
was certainly room for complaint that there was unequal
application of the law in the matter of imposition of the
sentence of death. [367C-D]
(b) There cannot be any higher basic human right than
the right to life and there can not be anything more
offensive to human dignity than a violation of that right by
the infliction of the death penalty. It is in the light of
the right to life as a basic concept of human dignity, in
the context of the unproven efficacy of the death penalty as
a deterrent and in the background of modern theories of
criminology based upon progress in the fields of science,
medicine, psychiatry and sociology and in the setting of the
march of the movement for abolition of Capital Punishment,
that Judges in India are required to decide which sentence
to impose in a case of murder, death or imprisonment for
life? [366D, 367B-C]
Furman v. Georgia, 33 Lawyers Edn. 2nd Series 346
referred to.
(c) Realising that discretion, even judicial, must
proceed along perceptive lines, but, conscious, all the same
that such discretion cannot be reduced to formulate or put
into pigeon-holes, this Court has been at great pain ever
since Ediga Annamma to point out the path along which to
proceed. In the latest pronouncement of this Court in
Rajendra Prasad v. State of Uttar Pradesh, several relevant
principles have been enunciated to guide the exercise of
discretion in making the choice between the penalties of
death and life-imprisonment. [367F-G]
Ediga Annamma v. State of A.P. [1974] S.C.C. 443,
Rajendra Prasad v. State of U.P. [1979] 3 SCR 78 referred
to.
358
4. Among the several theories of punishment the
reformative theory is irrelevant where death is the
punishment since life and not death can reform; the
preventive theory is unimportant where the choice is between
death and life imprisonment as in India; the retributive
theory is incongruous in an era of enlightenment and
inadequate as a theory since it does not attempt to justify
punishment by any beneficial results either to the society
or to the person punished. Equally, the denunciatory theory
is as inadequate as the retributive theory since it does not
justify punishment by its results. [359H, 360A-B, 361B]
5. (a) The very nature of the penalty of death makes it
imperative that at every suitable opportunity life
imprisonment should be preferred to the death penalty.
[359E]
Furman v. Georgia, 33 L.ed. 2nd Edn. 346; relied on.
(b) All studies made on the subject whether capital
punishment is the most desirable and most effective
instrument for protecting the community from violent crime
than other penalties say, a sentence of imprisonment for
long terms, have led to the conclusion that the death
penalty is inconsequential as a deterrent. [361 F]
(c) There is no positive indication that the death
penalty has been deterrent. In other words, the efficacy of
the death penalty as a deterrent is unproven. [365A]
6. The death penalty, rather than deterring murder,
actually deters the proper administration of criminal
justice. [365 A-B]
(a) There is the absolute finality and irrevocability
of the death penalty. Human justice can never be infallible.
The most conscientious judge is no proof against any
mistakes. Cases are unknown where innocent persons have been
hanged in India and elsewhere. [365B-C]
(b) Some Judges and Jurists have an abhorrence of the
death penalty that they would rather find a guilty person
not guilty than send even a guilty person to the gallows.
The refusal of juries to convict persons of murder because
of the death penalty is a well known phenomenon throughout
the world. A perusal of some of the judgments of the
Superior Courts in India dealing with cases where Trial
Courts have imposed sentence of death reveals the same
reluctance to convict because the result would otherwise be
to confirm the sentence of death. Thus a guilty person is
prevented from conviction by a possibility that a death
penalty may otherwise be the result. [365C-D]
(c) Yet a more 'grievious injury' which the death
penalty inflicts on the administration of Criminal Justice
is that it rejects reformation and rehabilitation of
offenders as among the most important objectives of Criminal
Justice, though the conscience of the World Community
speaking through the voices of the Legislature of several
countries of the world has accepted reformation and
rehabilitation as among the basic purposes of Criminal
Justice. Death penalty is the brooding giant in the part of
reform and treatment of Crime and Criminals, 'inequitably
sabotaging any social or institutional programme to
reformation'. It is the 'fifth column' in the administration
of criminal justice. [365E-G]
(d) There is also the compelling class complexion of
the death penalty. A tragic by-product of social and
economic deprivation is that the 'have-nots'
359
in every society always have been subject to greater
pressure to commit crimes and to fewer constraints than
their more affluent fellow citizens. So, the burden of
capital punishment falls more frequently upon the ignorant,
the improverished and the underprivilege. [365 G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 70
of 1979.
Appeal by Special Leave from the Judgment and order
dated 1-2-1978 of the Calcutta High Court in Criminal Appeal
No. 273 of 1976 and death Reference No. 4/76.
H. C. Mittal (Amicus Curiae) for the Appellant.
G. S. Chatterjee for the Respondent.
The following Judgments were delivered:
CHINNAPPA REDDY, J.-“The murderer has killed. It is
wrong to kill. Let us kill the murderer”. That was how a Mr.
Bonsall of Manchester (quoted by Arthur Koestler in his
‘Drinkers of Infinity’), in a letter to the Press, neatly
summed up the paradox and the pathology of the Death
Penalty. The unsoundness of the rationale of the demand of
death for murder has been discussed and exposed by my
brother Krishna Iyer, J., in a recent pronouncement in
Rajendra Prasad v. State of Uttar Pradesh(1). I would like
to add an appendix to what has been said there.
The dilemma of the Judge in every murder case, “Death
or life imprisonment for the murderer ?” is the question
with which we are faced in this appeal. The very nature of
the penalty of death appears to make it imperative that at
every suitable opportunity life imprisonment should be
preferred to the death penalty. “The penalty of death
differs from all other forms of criminal punishment, not in
degree but in kind. It is unique in its total
irrevocability. It is unique in its rejection of
rehabilitation of the convict as a basic purpose of criminal
justice. And, it is unique finally in its absolute
renunciation of all that is embodied in our concept of
humanity” (per Stewart J., in Furman v. Georgia) (2). “Death
is irrevocable, life imprisonment is not. Death, of course,
makes rehabilitation impossible, life imprisonment does not”
(per Marshall, J., in Furman v. Georgia).
Theories of punishment, there are many reformative,
preventive, retributive, denunciatory and deterrent. Let us
examine which cap fits capital punishment. The reformative
theory is irrelevant where
360
death is the punishment since life and not death can reform.
The preventive theory is unimportant where the choice is
between death and life imprisonment as in India.
The retributive theory is incongruous in an era of
enlightenment. It is inadequate as a theory since it does
not attempt to justify punishment by any beneficial results
either to the society or to the persons punished. It is,
however, necessary to clear a common misunderstanding that
the retributive theory justifies the death penalty.
According to the retributivist society has the right and the
duty to vindicate the wrong done to it and it must impose a
punishment which fits the crime. It does not mean returning
of evil for evil but the righting of a wrong. It implies the
imposition of a just but no more than a just penalty and
automatically rules out excessive punishment and, therefore,
capital punishment. According to a modern exponent of the
retributive theory of justice “capital punishment… .. is
with out foundation in a theory of just punishment. Indeed
one could go further and assert that capital punishment is
antithetical to the purposes and principles of punitive
sanctions in the law. Requital, when properly understood in
terms of a concept of just law, undoubtedly does have a
legitimate role in punishment. However, neither requital nor
punishment in general is a returning of evil for evil, and,
therefore, I see no support for the demand that a murder (or
an act of treason, or some other serious offence) be paid
for with a life”. The Biblical injunction ‘an eye for an eye
and a tooth for a tooth’ is often quoted as if it was a
command to do retributive justice. It was not. Jewish
history shows that it was meant to be merciful and set
limits to harsh punishments which were imposed earlier
including the death penalty for blasphamy, Sabbath breaking,
adultery, false prophecy, cursing, striking a parent etc.
And, as one abolitionist reminds us, who, one may ask,
remembers the voice of the other Jew: “Whoever shall smite
on thy right cheek, turn to him the other also ?”.
The denunciatory theory of punishment is only a
different shade of the retributive theory but from a sternly
moral plain. Lord Denning advanced the view before the Royal
Commission on Capital Punishment: “The punishment inflicted
for grave crimes should adequately reflect the revulsion
felt by the great majority of citizens for them. It is a
mistake to consider the objects of punishment as being
deterrent or reformative or preventive and nothing else. The
ultimate justification of any punishment is not that it is a
deterrent but that it is the emphatic denunciation by the
community of a crime, and from this point of view there are
some murders which in the present state of opinion demand
the most emphatic denunciation of all, namely the
361
death penalty” .. “The truth is that some crimes are so
outrageous that society insists on adequate punishment,
because the wrong-doer deserves it, irrespective of whether
it is a deterrent or not”. The implication of this statement
is that the death penalty is necessary not because the
preservation of society requires it but because society
demands it. Despite the high moral tone and phrase, the
denunciatory theory, as propounded, is nothing but an echo
of the retributive theory as explained by Stephen who had
said earlier: “The criminal law stands to the passion of
revenge in much the same relation as marriage to the sexual
appetite”. The denunciatory theory is as inadequate as the
retributive theory since it does not justify punishment by
its results. As Prof. Hart points out the idea that we may
punish offenders not to prevent harm or suffering or even
the reptition of the offence but simply as a means of
emphatically expressing our condemnation, is uncomfortably
close to human sacrifice as an expression of righteousness.
And, the question remains: “Why should denunciation take the
form of punishment”.
The deterrent theory may now be considered. It is
important to notice here that the question is not whether
the penalty of death has deterrent effect on potential
murderers but whether it deters more effectively than other
penalties say, a sentence of imprisonment for a long term ?
Is Capital Punishment the most desirable and the most
effective instrument for protecting the community from
violent crime ? What is the evidence that it has a uniquely
deterrent force compared with the alternative of protracted
imprisonment ? If the death penalty really and appreciably
decreases murder, if there is equally no effective
substitute and if its incidents are not injurious to
society, we may well support the death penalty. But all
studies made on the subject, as I will presently point out,
appear to have led to the conclusion that the death penalty
is inconsequential as a deterrent.
Sir James Fitz James Stephen, a great Victorian Judge
and a vigorous exponent of the deterrent theory said in his
Essay on Capital Punishment: “No other punishment of death.
This is one of those committing crimes as the punishment of
death. This is one of those propositions which it is
difficult to prove simply because they are in themselves
more obvious than any proof can make them. It is possible to
display ingenuity in arguing against it, but that is all.
The whole experience of mankind is in the other direction.
The threat of instant death is the one to which resort has
always been made when there was an absolute necessity of
producing some results.. No one goes to certain inevitable
death except by compulsion. Put the
362
matter the other way, was there ever yet a criminal who when
sentenced to death and brought out to die would refuse the
offer of a commutation of a sentence for a severest
secondary punishment? Surely not. Why is this? It can only
be because ‘all that a man has will be given for his life”.
In any secondary punishment however terrible, there is hope;
but death is death; its terrors cannot be described more
forcibly”.
Stephen’s statement was admittedly a dogmatic assertion
since he himself stated that it was a proposition difficult
to prove though according to him, self evident. The great
fallacy in the argument of Stephen has been pointed out by
several criminologists. Stephen makes no distinction between
a threat of certain and imminent punishment which faces the
convicted murderer and the threat of a different problamatic
punishment which may or may not influence a potential
murderer. Murder may be unpremeditated, under the stress of
some disturbing emotion or it may be premeditated after
planning and deliberation. Where the murder is premeditated
any thought of possibility of punishment is blurred by
emotion and the penalty of death can no more deter than any
other penalty. Where murder is premeditated the offender
disregards the risk of punishment because he thinks there is
no chance of detection. What weighs with him is the
uncertainty of detection and consequent punishment rather
than the nature of the punishment. The Advisory Council on
the Treatment of Offenders appointed by the Government of
Great Britain stated in their report in 1960 “We were
impressed by the argument that the greatest deterrent to
crime is not the fear of punishment, but the certainty of
detection”.
Prof. Hart countered Stephen’s argument with these
observations: ‘This (Stephen’s) estimate of the paramount
place in human motivation of the fear of death reads
impressively but surely contains a suggestio falsi and once
this is detected its congency as an argument in favour of
the death penalty for murder vanishes for there is really no
parallel between the situation of a convicted murderer over
the alternative of life imprisonment in the shadow of the
gallows and the situation of the murderer contemplating his
crime. The certainty of death is one thing, perhaps for
normal people nothing can be compared with it. But the
existence of the death penalty does not mean for the
murderer certainty of death now. It means not very high
probability of death in the future. And, futurity and
uncertainty, the hope of an escape, rational or irrational
fastly diminishes the difference between death and
imprisonment as deterrent, and may diminish to vanishing
point.. The way in which the convicted
363
murderer may view the immediate prospect of the gallows
after he has been caught must be a poor guide to the effect
of this prospect upon him when he is contemplating
committing his crime”.
A hundred and fifty years ago a study was made by the
Joint Select Committee appointed by the General Assembly of
Connecticut and they reported “Your Committee do not
hesitate to express their firm belief that a well devised
system of imprisonment, one which should render the
punishment certain and perpetual would be far more effectual
to restrain from crime than punishment of death”.
One of the most comprehensive enquiries ever undertaken
on the subject was that made by the Royal Commission on
Capital Punishment. The Commission visited several countries
of Europe and the United States, addressed questionnaires to
many other countries in search of information and examined
celebrated experts and jurists. The Commission’s conclusions
are of significance. They said: “There is no clear evidence
in any of the figures we have examined that the abolition of
Capital Punishment has led to an increase in the homicide
rate, or that its reintroduction to a fall.. prima facie the
penalty of death is likely to have a stronger effect as a
deterrent to normal human beings than any other form of
punishment and there is some evidence (though no convincing
statistical evidence) that this is in fact so. But its
effect does not operate universally or uniformly and there
are many offenders on whom it is limited and may often be
negligible. It is accordingly important to view this
question in just perspective and not to base a penal policy
in relation to murder on exaggerated estimates of the
uniquely deterrent force of the death penalty”.
Prof. Thorsten Sellin who made a serious and through
study of the entire subject in the United States on behalf
of the American Law Institute stated his conclusion: “Any
one who carefully examines the above data is bound to arrive
at the conclusion that the death penalty, as we use it,
exercises no influence on the extent or fluctuating rate of
capital crime. It has failed as a deterrent”.
In 1962 statistics were compiled and a report was
prepared at the instance of the United Nations Economic and
Social Council on the question of Capital Punishment, the
laws and practices relating thereto and the effects of
capital punishment and the abolition thereof on the rate of
criminality. According to the report all the information
available appeared to confirm that neither total abolition
of the death penalty nor its partial abolition in regard to
certain crimes only had
364
been followed by any notable rise in the incidence of crime
which was previously punishable with death.
Late Prime Minister Bhandarnaike of Sri Lanka suspended
the death penalty in 1956. A Commission of Inquiry on
Capital Punishment was appointed and it reported “If the
experience of the many countries which have suspended or
abolished capital punishment is taken into account there is
in our view, cogent evidence of the unlikelihood of this
‘hidden protection’.. It is, therefore, our view that the
statistics of homicide in Ceylon when related to the social
changes since the suspension of the death penalty in Ceylon
and when related to the experience of other countries tend
to disprove the assumption of the uniquely deterrent effect
of the death penalty, and that in deciding on the question
of reintroduction or abolition of the capital punishment
reintroduction cannot be justified on the argument that it
is a more effective deterrent to potential killers than the
alternative of protracted imprisonment”. It is a tragic
irony that Prime Minister Bhandarnaike who suspended the
Capital Punishment in Ceylon was murdered by a fanatic and
in the panic that ensued death penalty was reintroduced in
Ceylon.
In the United States of America several studies have
been made but ‘the results simply have been inconclusive’.
The majority Judges of the United States Supreme Court who
upheld the constitutionality of the death penalty in the
State of Georgia in Gregg v. Georgia(1) were compelled to
observe “Although some of the studies suggest that the death
penalty may not function as a significantly greater
deterrent than lesser penalties, there is no convincing
empirical evidence supporting or refuting this view”. In the
same case the minority Judges Brennan, J., and Marshall, J.,
were convinced that ‘capital punishment was not necessary as
a deterrent to crime in our society’.
In India no systematic study of the problem whether the
death penalty is a greater deterrent to murder than the
penalty of life imprisonment has yet been undertaken. A few
years ago I made a little research into the matter and
studied the statistics relating to capital crime in several
districts of Andhra Pradesh from 1935 to 1970.(2) The
pattern was most eratic but it can be boldly asserted that
the figures do not justify a conclusion that the death
penalty has been a deterrent, but, then, the figures do not
also lead inevitably to the conclusion that the death
penalty has not been deterrent. One of the complicating
factors is the discretion given to Judges to inflict
365
death penalty or imprisonment for life (about which more
later) which destroys the utility of any study based on
statistics. The most reasonable conclusion is that there is
no positive indication that the death penalty has been
deterrent. In other words, the efficacy of the death penalty
as a deterrent is unproven.
“The death penalty, rather than deterring murder,
actually deters the proper administration of criminal
justice”.(1) There is the absolute finality and
irrevocability of the death penalty. Human justice can never
be infallible. The most conscientious judge is no proof
against sad mistakes. Every criminal lawyer of experience
will admit that cases are not unknown where innocent persons
have been hanged in India and elsewhere. And, it is not the
only way the death penalty strikes at the administration of
criminal justice. Some Judges and Juries have an abhorrence
of the death penalty that they would rather find a guilty
person not guilty than send even a guilty person to the
gallows. The refusal of Juries to convict persons of murder
because of the death penalty is a well known phenomenon
throughout the world. A perusal of some of the judgments of
the Superior Courts in India dealing with cases where Trial
Courts have imposed sentences of death reveals the same
reluctance to convict because the result would otherwise be
to confirm the sentence of death. Thus a guilty person is
prevented from conviction by a possibility that a death
penalty may otherwise be the result.
That is not all. There is yet a more ‘grievous injury’
which the death penalty inflicts on the administration of
Criminal Justice. It rejects reformation and rehabilitation
of offenders as among the most important objectives of
Criminal Justice, though the conscience of the World
Community speaking through the voices of the Legislature of
several countries of the world has accepted reformation and
rehabilitation as among the basic purposes of Criminal
Justice. Death penalty is the brooding giant in the path of
reform and treatment of Crime and Criminals, “inevitably
sabotaging any social or institutional programme to
reformation’. It is the ‘fifth column’ in the administration
of criminal justice.
There is also the compelling class complexion of the
death penalty. A tragic by product of social and economic
deprivation is that the “have-nots” in every society always
have been subject to greater pressure to commit crimes and
to fewer constraints than their more affluent fellow
citizens. So, the burden of capital punishment falls more
frequently upon the ignorant, the impoverished and the
underpriviledged. In the words of Marshall, J., “Their
impotence leaves them
366
victims of a sanction that the welthier, better represented,
just-as guilty person can escape. So long as the capital
sanction is used only against the forlorn, easily forgotten
members of society, legislators are content to maintain the
status-quo because change would draw attention to the
problem and concern might develop. Ignorance is perpetuated
and apathy soon becomes its mate and we have today’s
situation”. As a matter of historical interest it may be
mentioned here that when in 1956, in Great Britain, the
House of Commons adopted a resolution “That this House
believes that the death penalty for murder no longer accords
with the needs or the true interests of a civilised society,
and calls on Her Majesty’s Government to introduce forthwith
legislation for its abolition or for its suspension for an
experimental period”, and the death penalty Abolition Bill
was introduced, ‘from the hills and forests of darkest
Britain they came: the halt, the lame, the deaf, the
obscrue, the senile and the forgotten-the hereditary peers
of England, united in their determination to use their
medieval powers to retain a medieval institution”,(1) and
the bill was torpedoed by the House of Lords. Capital
Punishment was however abolished in Great Britain in 1966.
There is finally the question whether the death penalty
conforms to the current standards of ‘decency’. Can there be
any higher basic human right than the right to life and can
anything be more offensive to human dignity than a violation
of that right by the infliction of the death penalty.
Brennan, J., observed in Furman v. Georgia(2) “In comparison
to all other punishments today.. the deliberate
extinguishment of human life by the State is uniquely
degrading to human dignity.. death for whatever crime and
under all circumstances is truly an awesome punishment. The
calculated killing of a human being by the State involves,
by its very nature, a denial of the executed person’s
humanity.. as executed person has indeed lost the right to
have rights”. Senor Tejera of Uruguay in the debate in the
United Nations said “A death penalty is an anachronism in
the twentieth Century and it is significant that no one in
the committee has defended it. It is the duty of the United
Nations to promote progress and to protect man from the
prejudices and barbarity surviving from the past”.
In a large number of countries in the world where the
murder rate is higher than in India, the death penalty has
been abolished. In most Latin American countries, in
Argentina, Brazil, Columbia, Costa
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Rica, Ecuador, Maxico, Panama, Peru and Uruguas, Venezuala,
in European countries, in Austria, Belgium, Denmark,
Germany, Italy, Netherlands, Norway, Sweden, and
Switzerland, in Iceland, in Israel, in many Australian
States and in many of the States in the United States of
America, death sentence has been abolished.
It is in the light of the right to life as a basic
concept of human dignity, in the context of the unproven
efficacy of the death penalty as a deterrent and in the
background of modern theories of criminology based upon
progress in the fields of science, medicine, psychiatry and
sociology and in the setting of the march of the movement
for abolition of Capital Punishment, that Judges in India
are required to decide which sentence to impose in a case of
murder, death or imprisonment for life?
Judges in India have the discretion to impose or not to
impose the death penalty. It is one of the great burdens
which Judges in this country have to carry. In the past, the
reasons which weighed in the matter of awarding or not
awarding the sentence of death varied widely and there was
certainly room for complaint that there was an unequal
application of the law in the matter of imposition of the
sentence of death. The varying outlook on the part of Judges
was well brought out a few years ago by two decisions of the
Andhra Pradesh High Court. In the first case, while
confirming the conviction of certain “Naxalites” for murder,
the judges set aside the sentence of death and awarded life
imprisonment instead. That the murder was not for any
personal motive but was in pursuit of some mistaken ideology
was the reason which weighed with the judges for
substituting the sentence of life imprisonment for the
sentence of death. Within a few months this view was
subjected to severe criticism by two other Judges, who, in
the second case confirmed the sentence of death. Realising
that discretion, even judicial, must proceed along
perceptive lines, but, conscious, all the same, that such
discretion cannot be reduced to formulae or put into pigeon-
holes, this Court has been at great pains eversince Ediga
Annamma to point the path along which to proceed. In the
latest pronouncement of this Court in Rajendra Prasad v.
State of Uttar Pradesh (supra) several relevant principles
have been enunciated to guide the exercise of discretion in
making the choice between the penalties of death and life-
imprisonment. I express my agreement with the elucidation of
the principles in Rajendra Prasad v. State of Uttar Pradesh.
(supra).
Section 302 Indian Penal Code prescribes death or life-
imprisonment as the penalty for murder. While so, the Code
of Criminal Procedure instructs the Court as to its
application. The changes which
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the Code has undergone in the last 25 years clearly indicate
that Parliament is taking note of contemporary
criminological thought and movement. Prior to 1955, Section
367(5) of the Code of Criminal Procedure 1898 insisted upon
the Court stating its reasons if the sentence of death was
not imposed in a case of murder. The result was that it was
thought that in the absence of extenuating circumstances,
which were to be stated by the Court, the ordinary penalty
for murder was death. In 1955, sub-section (5) of Section
367 was deleted and the deletion was interpreted, at any
rate by some Courts, to mean that the sentence of life
imprisonment was the normal sentence for murder and the
sentence of death could be imposed only if there were
aggravating circumstances. In the Code of Criminal Procedure
of 1973, there is a further swing towards life imprisonment.
Section 354(3) of the new Code now provides:
“When the conviction is for an offence punishable
with death or, in the alternative 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.”
So, the discretion to impose the sentence of death or life-
imprisonment is not so wide, after all. Section 354(3) has
narrowed the discretion Death Sentence is ordinarily ruled
out and can only be imposed for ‘Special reasons’, Judges
are left with the task of discovering ‘Special reasons’.
Let us first examine if the Code of Criminal Procedure
gives any clue leading to the discovery of ‘Special
reasons’.
Apart from Section 354(3) there is another provision in
the Code which also uses the significant expression ‘special
reasons’. It is Section 361. Section 360 of the 1973 code
re-enacts, in substance, Section 562 of the 1898 Code and
provides for the release on probation of good conduct or
after admonition any person not under twenty one years of
age who is convicted of an offence punishable with fine only
or with imprisonment for a term of seven years or less, or
any person under twenty one years of age or any women who is
convicted of an offence not punishable with death or
imprisonment of life, if no previous offence is proved
against the offender, and if it appears to the Court, having
regard to the age, character or antecedents of the offender,
and to the circumstances in which the offence was committed,
that it is expedient that the offender should be released on
probation of good conduct or after admonition. If the Court
refrains from dealing
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with an offender under Section 360 or under the provisions
of the Probation of Offenders Act, or any other law for the
treatment, training, or rehabilitation of youthful
offenders, where the Court could have done so, Section 361,
which is a new provision in the 1973 Code makes it mandatory
for the Court to record in its judgment the ‘special
reasons’ for not doing so. Section 361 thus casts a duty
upon the Court to apply the provisions of Section 360
wherever it is possible to do so and, to state “special
reasons” if it does not do so. In the context of Section
360, the “special reasons” contemplated by Section 361 must
be such as to compel the Court to hold that it is impossible
to reform and rehabilitate the offender after examining the
matter with due regard to the age, character and antecedents
of the offender and the circumstances in which the offence
was committed. This is some indication by the Legislature
that reformation and rehabilitation of offenders, and not
mere deterrence, are now among the foremost objects of the
administration of criminal Justice in our country. Section
361 and Section 354(3) have both entered the Statute Book at
the same time and they are part of the emerging picture of
acceptance by the Indian Parliament of the new trends in
criminilogy. We will not, therefore, be wrong in assuming
that the personality of the offender as revealed by his age,
character, antecedents and other circumstances and the
tractability of the offender to reform must necessarily play
the most prominent role in determining the sentence to be
awarded. Special reasons must have some relation to these
factors.
Criminal justice is not a computer machine. It deals
with complex human problems and diverse human beings. It
deals with persons who are otherwise like the rest of us,
who work and play, who laugh and mourn, who love and hate,
who yearn for affection and approval, as all of us do, who
think, learn and forget. Like the rest of us they too are
the creatures of circumstance. Heredity, environment, home
neighborhood, upbringing, school, friends, associates, even
casual acquaintenances, the books that one reads,
newspapers, radio and TV, the economics of the household,
the opportunities provided by circumstances and the
calamities resulting thereform, the success and failure of
one’s undertakings, the affairs of the heart, ambitions and
frustrations, the ideas and ideologies of the time, these
and several other ordinary and extra-ordinary incidents of
life contribute to a person’s personality and influence his
conduct. Differently shaped and differently circumstanced
individuals react differently in given situations. A Judge
has to balance the personality of the offender with the
circumstance the situations and the reactions and choose the
appropriate
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sentence to be imposed. A judge must try to answer a myried
questions such as was the offence committed without
premeditation or was it after due deliberation ? What was
the motive for the crime ? Was it for gain ? Was it the
outcome of a village feud ? Was it the result of a petty,
drunken, street brawl, or a domestic bickering between a
hapless husband and a helpless wife ? Was it due to sexual
jealousy ? Was the murder committed under some stress,
emotional or otherwise ? What is the background of the
offender ? What is his social and economic status? What is
the level of his education or intelligence? Do his actions
betray a particularly callous indifference towards the
welfare of society or, on the other hand, do they show a
great concern for humanity and are in fact inspired by such
concern ? Is the offender so perpetually and
constitutionally at war with society that there is no hope
of ever reclaiming him from being a menace to society ? Or
is he a person who is patently amenable to reform ? Well,
may one exclaim with Prof. Vrij “What audacity is involved
in these three tasks: to interpret life, explain an act,
predict the latest inclination of a human mind.”
‘Special reasons’, we may, therefore say, are reasons
which are special with reference to the offender, with
reference to constitutional and legislative directives and
with reference to the times, that is, with reference to
contemporary ideas in the fields of Criminology and
connected sciences. Special reasons are those which lead
inevitably to the conclusion that the offender is beyond
redemption, having due regard to his personality and
proclivity, to the legislative policy of reformation of the
offender and to the advances made in the methods of
treatment etc. I will not attempt to catalogue and ‘Special
reasons’. I have said enough and perhaps more than what I
intended, to indicate what according to me should be the
approach to the question. Whatever I have said is but to
supplement what my brother Krishna Iyer has already said in
Rajendra Prasad v. State of U.P.(1)
Coming to the case before us, our brothers Jaswant
Singh and Kailasam, JJ., ordered ‘notice confined to the
question of sentence only.’ At the last hearing we granted
special leave to appeal on the question of sentence. The
appellant was convicted by the learned Additional Sessions
Judge, Alipore, for the murder of his son and sentenced to
death. The High Court of Calcutta confirmed the conviction
and sentence. The reason given by the learned Sessions Judge
for giving the sentence of death was that the murder was
‘cruel and
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brutal’ and that the facts show the ‘grim determination’ of
the accused to kill the deceased. The Sessions Judge made no
reference to the motive of the accused for the commission of
the murder. The High Court while confirming the sentence
observed that the accused had previously murdered his wife,
suspecting her infidelity and suspecting that the deceased
in the present case was not his own son, that the sentence
of imrisonment imposed on him for the murder of his wife had
no sobering affect and that he had murdered his own son
without any mercy or remorse and that he, therefore,
deserved no mercy. We do not think that either the Sessions
Judge or the High Court made the right approach to the
question. The Sessions Judge was wrong in imposing the
sentence of death without even a reference to the reason why
the appellant committed the murder. The observation of the
High Court that the appellant deserved no mercy because he
showed no mercy smacks very much of punishment by way of
retribution. We have examined the facts of the case. We find
some vague evidence to the effect that the appellant
suspected that the deceased was not his own son and that he
used to get angry with the deceased for not obeying him.
There is also vague evidence that he had killed the mother
of the deceased and had suffered sentence of imprisonment
for that offence. From the vague evidence that is available
we gather that the appellant was a moody person who had for
years been brooding over the suspected infidelity of his
wife and the injustice of having a son foisted on him. We do
not think that the mere use of adjectives like ‘cruel and
brutal’ supplies the special reasons contemplated by Section
354(3) Criminal Procedure Code. In the light of the
principles enunciated in Rajendra Prasad v. State of
U.P.,(1) and in the light of what we have said earlier, we
do not think that there are any ‘special reasons’ justifying
the imposition of the death penalty. We accordingly allow
the appeal as regards sentence, set aside the sentence of
death and impose in its place the sentence of life
imprisonment.
KRISHNA IYER, J.-I have had the advantage of reading
the Judgment of my learned brother, Shri Justice Chinnappa
Reddy. I wholly agree with his reasoning and conclusion.
Indeed, the ratio of Rajendra Prasad etc. v. State of Uttar
Pradesh etc.(1), if applied to the present case, as it must
be, leads to the conclusion that death sentence cannot be
awarded in the circumstances of the present case. Counsel
for the State, if I recollect aright, did state that in view
of the criteria laid
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down in Rajendra Prasad’s case the State did not propose to
file any written submissions against commutation to life
imprisonment. I concur with my learned brother and direct
that the appeal, confined to sentence, be allowed and the
alternative of life imprisonment imposed.
V.D.K. Appeal allowed
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