{"id":148561,"date":"1979-02-22T00:00:00","date_gmt":"1979-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bishnu-deo-shaw-bishnu-dayal-vs-state-of-west-bengal-on-22-february-1979"},"modified":"2017-11-25T21:25:00","modified_gmt":"2017-11-25T15:55:00","slug":"bishnu-deo-shaw-bishnu-dayal-vs-state-of-west-bengal-on-22-february-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bishnu-deo-shaw-bishnu-dayal-vs-state-of-west-bengal-on-22-february-1979","title":{"rendered":"Bishnu Deo Shaw @ Bishnu Dayal vs State Of West Bengal on 22 February, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bishnu Deo Shaw @ Bishnu Dayal vs State Of West Bengal on 22 February, 1979<\/div>\n
Equivalent citations: 1979 AIR 964, \t\t 1979 SCR (3) 355<\/div>\n
Author: O C Reddy<\/div>\n
Bench: Reddy, O. Chinnappa (J)<\/div>\n
           PETITIONER:\nBISHNU DEO SHAW @ BISHNU DAYAL\n\n\tVs.\n\nRESPONDENT:\nSTATE OF WEST BENGAL\n\nDATE OF JUDGMENT22\/02\/1979\n\nBENCH:\nREDDY, O. CHINNAPPA (J)\nBENCH:\nREDDY, O. CHINNAPPA (J)\nKRISHNAIYER, V.R.\n\nCITATION:\n 1979 AIR  964\t\t  1979 SCR  (3) 355\n 1979 SCC  (3) 714\n CITATOR INFO :\n R\t    1979 SC1384\t (10)\n O\t    1980 SC 898\t (202)\n MV\t    1982 SC1325\t (61)\n\n\nACT:\n     Demand of\tdeath for  murder, rationale  of section 302\nI.P.C. vis-a-vis-Section  354(3)  of  the  Crl.\t P.C.  1973-\n\"Special Reasons\",  meaning of-Section\t354(3) 360,  361  of\nCrl. P.C.-Scope of.\n\n\n\nHEADNOTE:\n     The appellant was convicted by the Additional Session's\nJudge Alipore  for the\tmurder of  his son  and sentenced to\ndeath. The  reason given  by the Sessions Judge was that the\nmurder was  \"cruel and brutal\" and that the facts showed the\n\"grim determination\"  of the  accused to  kill the deceased.\nThe Sessions  Judge made  no reference\tto the motive of the\naccused for  the commission  of the  murder. The  High Court\nwhile confirming  the conviction  and sentence observed that\nthe accused had previously murdered his wife, suspecting her\ninfidelity that\t the sentence of imprisonment imposed on him\nfor the\t murder of  his wife had no sobering effect, that he\nsuspected that\tthe deceased in the present case was not his\nown son and so he murdered him without any mercy or remorse,\nand that he, therefore deserved no mercy.\n     Allowing the  appeal by  special leave  limited to\t the\nquestion of sentence, the Court\n^\n     HELD: 1. There were no \"special reasons\" justifying the\nimposition of the death penalty. [371 F]\n     (a) The  Sessions\tJudge  was  wrong  in  imposing\t the\nsentence of death without even a reference to the reason why\nthe appellant committed the murder. [371 C]\n     (b)  The\tobservation  of\t the  High  Court  that\t the\nappellant deserved  no mercy  because  he  showed  no  mercy\nsmacks very  much of  punishment by way of retribution. [371\nC]\n     (c) From  the evidence,  it is clear that the appellant\nwas a  moody person who had for years been brooding over the\nsuspected infidelity  of his wife and the injury of having a\nson foisted  on him.  The mere use of adjectives like \"cruel\nand brutal\" does not supply the special reasons contemplated\nby section  354(3) of  the Criminal  Procedure\tCode,  1973.\n[371D-E]\n     Rajendra Prasad  v. State\tof Uttar  Pradesh, [1979]  3\nS.C.R. 78, applied.\n     2. \"Special reasons\" are reasons which are special with\nreference to  the offender, with reference to constitutional\nand legislative\t directives and with reference to the times,\nthat is,  with reference to contemporary ideas in the fields\nof criminology\tand connected  sciences. Special reasons are\nthose which  lead inevitably  to  the  conclusion  that\t the\noffender is  beyond redemption,\t having due  regard  to\t his\npersonality and proclivity, to the legislative\n356\npolicy of  reformation of  the offender\t and to the advances\nmade in\t the methods of treatment etc. Section 354(3) of the\n1973 Code  has\tnarrowed  the  discretion  of  sentence\t for\nmurder. Death  sentence is ordinarily ruled out and can only\nbe imposed  for \"Special  reasons\". Judges are left with the\ntask of discovering \"special reasons\". [368 D-E, 370E-F]\n     (a)  Apart\t  from\tSection\t 354(3),  there\t is  another\nprovision in  the  Code\t which\talso  uses  the\t significant\nexpression \"Special reasons\". It is Section 361, Section 360\nof the 1973 Code re-enacts, in substance, Section 562 of the\n1898 Code  and provides for the release on probation of good\nconduct or  after admonition any person not under twenty-one\nyears of  age who is convicted of an offence punishable with\nfine only  or with imprisonment for a term of seven years or\nless, or  any person  under twenty-one\tyears of  age or any\nwoman who  is convicted\t of an\toffence not  punishable with\ndeath or  imprisonment for  life, if  no previous offence is\nproved against\tthe offender, and if it appears to the Court\nhaving regard  to the  age, character  or antecedents of the\noffender, and  to the circumstances in which the offence was\ncommitted, that\t it is expedient that the offender should be\nreleased on  probation of  good conduct or after admonition.\nIf the\tCourt refrains\tfrom dealing  with an offender under\nSection 360  or under  the provisions  of the  Probation  of\nOffenders Act, or any other law for the treatment, training,\nor rehabilitation  of youthful\toffenders, where  the  Court\ncould have  done, so,  Section 361, which is a new provision\nin the\t1973 Code makes it mandatory for the Court to record\nin its\tjudgment the  \"Special reasons\"\t for not  doing\t so.\nSection 361  thus casts\t a duty\t upon the Court to apply the\nprovisions of  Section wherever it is possible to do so and,\nto state  \"special reasons\"  if it  does not do so. [368F-H,\n369A-B]\n     (b)  In  the  context  of\tSection\t 360,  the  \"Special\nreasons\" contemplated  by Section  361 must  be such  as  to\ncompel the Court to hold that it is impossible to reform and\nrehabilitate the  offenders, after examining the matter with\ndue regard  to the  age, character  and antecedents  of\t the\noffender and  the circumstances\t in which  the\toffence\t was\ncommitted. This\t is some  indication by the legislature that\nreformation and\t rehabilitation of  offenders, and  not mere\ndeterrence  are\t now  among  the  foremost  objects  of\t the\nadministration of  criminal justice  in our country. Section\n361 and Section 354(3) have both entered the Statute Book at\nthe same  time and  they are part of the emerging picture of\nacceptance by  the Indian  Parliament of  the new  trends in\ncriminology. Therefore,\t the personality  of the offender as\nrevealed  by  his  age,\t character,  antecedents  and  other\ncircumstances and the tractability of the offender to reform\nmust necessarily play the most prominent role in determining\nthe sentence  to be  awarded. Special reasons must have some\nrelation to these factors. [369B-E]\n     3. Criminal justice is not a computer machine. It deals\nwith complex  human problems  and diverse  human beings.  It\ndeals with  persons who\t are otherwise\tlike the rest of us,\nwho work  and play,  who laugh and mourn, who love and hate,\nwho yearn  for affection  and approval, as all of us do, who\nthink learn and forget. Like the rest of us they too are the\ncreatures  of  circumstances.  Heredity,  environment,\thome\nneighbourhood, upbringing, school, friends, associates, even\ncasual acquaintences,  the books that one reads, newspapers,\nradio and TV, the economics of the household, the oppor-\n357\ntunities  provided   by\t circumstances\tand  the  calamatics\nresulting  therefrom   the  success  and  failure  of  one's\nundertakings  the   affairs  of\t the  heart,  ambitions\t and\nfrustrations, the  ideas and  ideologies of  the time, these\nand several  other ordinary  and extra-ordinary incidents of\nlife contribute\t to a person's personality and influence his\nconduct. Differently  shaped and  differently  circumstanced\nindividuals react  differently in  given situations. A judge\nhas to\tbalance the  personality of  the offender  with\t the\ncircumstances the  situations and  the reactions  and choose\nthe appropriate\t sentence to be imposed. A judge must try to\nanswer a  myriad question  such as was the offence committed\nwithout premeditation  or was  it after\t due deliberation  ?\nWhat was the motive for the crime ? Was it for gain ? Was it\nthe outcome of a village feud ? Was it the result of a petty\ndrunken, street\t brawl, or  a domestic\tbickering between  a\nhelpless husband  and a helpless wife ? Was it due to sexual\njealousy ?  Was the  murder committed  under  some,  stress,\nemotional or  otherwise ?  What is  the\t background  of\t the\noffender ?  What is his social and economic status ? What is\nthe level  of his education or intelligence ? Do his actions\nbetray\ta  particularly\t callous  indifference\ttowards\t the\nwelfare of  society, or\t on the\t other hand,  do they show a\ngreat concern  for humanity and are in fact inspired by such\nconcern\t  ?    Is   the\t   offender   so   perpetually\t and\nconstitutionally at  war with  society that there is no hope\nof ever\t reclaiming him\t from being a menace to society ? Or\nis he  a person who is patently amenable to reform ? [369 E-\nH, 370 A-C]\n     (a) Judges\t in India  have the  discretion to impose or\nnot to\timpose the  death penalty.  It is  one of  the great\nburdens which  judges in  this country have to carry. In the\npast, the reasons which weighed in the matter of awarding or\nnot awarding  the sentence  of death varied widely and there\nwas certainly  room for\t complaint that\t there\twas  unequal\napplication of\tthe law\t in the\t matter of imposition of the\nsentence of death. [367C-D]\n     (b) There\tcannot be  any higher basic human right than\nthe right  to life  and\t there\tcan  not  be  anything\tmore\noffensive to human dignity than a violation of that right by\nthe infliction\tof the\tdeath penalty. It is in the light of\nthe right  to life  as a  basic concept of human dignity, in\nthe context of the unproven efficacy of the death penalty as\na deterrent  and in  the background  of modern\ttheories  of\ncriminology based  upon progress  in the  fields of science,\nmedicine, psychiatry and sociology and in the setting of the\nmarch of  the movement\tfor abolition of Capital Punishment,\nthat Judges  in India  are required to decide which sentence\nto impose  in a\t case of  murder, death\t or imprisonment for\nlife? [366D, 367B-C]\n\t  Furman v.  Georgia, 33 Lawyers Edn. 2nd Series 346\nreferred to.\n     (c) Realising  that  discretion,  even  judicial,\tmust\nproceed along perceptive lines, but, conscious, all the same\nthat such  discretion cannot  be reduced to formulate or put\ninto pigeon-holes,  this Court\thas been  at great pain ever\nsince Ediga  Annamma to\t point out  the path  along which to\nproceed. In  the  latest  pronouncement\t of  this  Court  in\nRajendra Prasad\t v. State of Uttar Pradesh, several relevant\nprinciples have\t been enunciated  to guide  the exercise  of\ndiscretion in  making the  choice between  the penalties  of\ndeath and life-imprisonment. [367F-G]\n     Ediga Annamma  v. State  of  A.P.\t[1974]\tS.C.C.\t443,\nRajendra Prasad\t v. State  of U.P.  [1979] 3 SCR 78 referred\nto.\n358\n     4.\t Among\t the  several  theories\t of  punishment\t the\nreformative  theory   is  irrelevant   where  death  is\t the\npunishment  since   life  and  not  death  can\treform;\t the\npreventive theory is unimportant where the choice is between\ndeath and  life imprisonment  as in  India; the\t retributive\ntheory\tis  incongruous\t in  an\t era  of  enlightenment\t and\ninadequate as  a theory since it does not attempt to justify\npunishment by  any beneficial  results either to the society\nor to  the person punished. Equally, the denunciatory theory\nis as inadequate as the retributive theory since it does not\njustify punishment by its results. [359H, 360A-B, 361B]\n     5. (a) The very nature of the penalty of death makes it\nimperative  that   at  every   suitable\t  opportunity\tlife\nimprisonment should  be\t preferred  to\tthe  death  penalty.\n[359E]\n     Furman v. Georgia, 33 L.ed. 2nd Edn. 346; relied on.\n     (b) All  studies made  on the  subject whether  capital\npunishment  is\t the  most   desirable\tand  most  effective\ninstrument for\tprotecting the\tcommunity from violent crime\nthan other  penalties say,  a sentence\tof imprisonment\t for\nlong terms,  have led  to  the\tconclusion  that  the  death\npenalty is inconsequential as a deterrent. [361 F]\n     (c) There\tis no  positive indication  that  the  death\npenalty has  been deterrent. In other words, the efficacy of\nthe death penalty as a deterrent is unproven. [365A]\n     6. The  death penalty,  rather than  deterring  murder,\nactually  deters   the\tproper\tadministration\tof  criminal\njustice. [365 A-B]\n     (a) There\tis the\tabsolute finality and irrevocability\nof the death penalty. Human justice can never be infallible.\nThe  most  conscientious  judge\t is  no\t proof\tagainst\t any\nmistakes. Cases are unknown where innocent persons have been\nhanged in India and elsewhere. [365B-C]\n     (b) Some  Judges and  Jurists have an abhorrence of the\ndeath penalty  that they  would rather\tfind a guilty person\nnot guilty  than send  even a  guilty person to the gallows.\nThe refusal  of juries\tto convict persons of murder because\nof the\tdeath penalty  is a well known phenomenon throughout\nthe world.  A perusal  of  some\t of  the  judgments  of\t the\nSuperior Courts\t in India  dealing with\t cases\twhere  Trial\nCourts have  imposed sentence  of  death  reveals  the\tsame\nreluctance to  convict because the result would otherwise be\nto confirm  the sentence  of death.  Thus a guilty person is\nprevented from\tconviction by  a possibility  that  a  death\npenalty may otherwise be the result. [365C-D]\n     (c) Yet  a more  'grievious  injury'  which  the  death\npenalty inflicts  on the  administration of Criminal Justice\nis  that   it  rejects\treformation  and  rehabilitation  of\noffenders as among the most important objectives of Criminal\nJustice,  though  the  conscience  of  the  World  Community\nspeaking through  the voices  of the  Legislature of several\ncountries  of\tthe  world   has  accepted  reformation\t and\nrehabilitation as  among  the  basic  purposes\tof  Criminal\nJustice. Death\tpenalty is the brooding giant in the part of\nreform and  treatment of  Crime and  Criminals, 'inequitably\nsabotaging  any\t  social  or   institutional  programme\t  to\nreformation'. It is the 'fifth column' in the administration\nof criminal justice. [365E-G]\n     (d) There\tis also\t the compelling\t class complexion of\nthe  death  penalty.  A\t tragic\t by-product  of\t social\t and\neconomic deprivation is that the 'have-nots'\n359\nin  every  society  always  have  been\tsubject\t to  greater\npressure to  commit crimes  and to  fewer  constraints\tthan\ntheir more  affluent fellow  citizens.\tSo,  the  burden  of\ncapital punishment  falls more frequently upon the ignorant,\nthe improverished and the underprivilege. [365 G-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 70
\nof 1979.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  order
\ndated 1-2-1978 of the Calcutta High Court in Criminal Appeal
\nNo. 273 of 1976 and death Reference No. 4\/76.\n<\/p>\n
     H. C. Mittal (Amicus Curiae) for the Appellant.
\n     G. S. Chatterjee for the Respondent.\n<\/p>\n
     The following Judgments were delivered:\n<\/p>\n
     CHINNAPPA REDDY,  J.-“The murderer\t has killed.  It  is
\nwrong to kill. Let us kill the murderer”. That was how a Mr.
\nBonsall of  Manchester (quoted\tby Arthur  Koestler  in\t his
\n‘Drinkers of  Infinity’), in  a letter\tto the Press, neatly
\nsummed up  the\tparadox\t and  the  pathology  of  the  Death
\nPenalty. The  unsoundness of  the rationale of the demand of
\ndeath for  murder has  been  discussed\tand  exposed  by  my
\nbrother Krishna\t Iyer, J.,  in\ta  recent  pronouncement  in
\nRajendra Prasad\t v. State  of Uttar Pradesh(1). I would like
\nto add an appendix to what has been said there.\n<\/p>\n
     The dilemma  of the  Judge in every murder case, “Death
\nor life\t imprisonment for  the murderer\t ?” is\tthe question
\nwith which  we are  faced in this appeal. The very nature of
\nthe penalty  of death  appears to make it imperative that at
\nevery  suitable\t opportunity  life  imprisonment  should  be
\npreferred to  the  death  penalty.  “The  penalty  of  death
\ndiffers from  all other forms of criminal punishment, not in
\ndegree\tbut   in  kind.\t  It  is   unique   in\t its   total
\nirrevocability.\t It   is  unique   in\tits   rejection\t  of
\nrehabilitation of the convict as a basic purpose of criminal
\njustice.  And,\t it  is\t  unique  finally  in  its  absolute
\nrenunciation of\t all that  is embodied\tin  our\t concept  of
\nhumanity” (per Stewart J., in Furman v. Georgia) (2). “Death
\nis irrevocable,\t life imprisonment is not. Death, of course,
\nmakes rehabilitation impossible, life imprisonment does not”
\n(per Marshall, J., in Furman v. Georgia).\n<\/p>\n
     Theories of  punishment, there  are  many\treformative,
\npreventive, retributive,  denunciatory and deterrent. Let us
\nexamine which  cap fits\t capital punishment. The reformative
\ntheory is irrelevant where
\n360<\/span>
\ndeath is the punishment since life and not death can reform.
\nThe preventive\ttheory is  unimportant where  the choice  is
\nbetween death and life imprisonment as in India.\n<\/p>\n
     The retributive  theory is\t incongruous in\t an  era  of
\nenlightenment. It  is inadequate  as a\ttheory since it does
\nnot attempt  to justify punishment by any beneficial results
\neither to  the society\tor to  the persons  punished. It is,
\nhowever, necessary  to clear  a common misunderstanding that
\nthe  retributive   theory  justifies   the  death   penalty.
\nAccording to the retributivist society has the right and the
\nduty to\t vindicate the wrong done to it and it must impose a
\npunishment which  fits the crime. It does not mean returning
\nof evil for evil but the righting of a wrong. It implies the
\nimposition of  a just  but no  more than  a just penalty and
\nautomatically rules out excessive punishment and, therefore,
\ncapital punishment.  According to  a modern  exponent of the
\nretributive theory  of justice\t“capital punishment… .. is
\nwith out  foundation in\t a theory of just punishment. Indeed
\none could  go further  and assert that capital punishment is
\nantithetical to\t the purposes  and  principles\tof  punitive
\nsanctions in  the law. Requital, when properly understood in
\nterms of  a concept  of just  law, undoubtedly\tdoes have  a
\nlegitimate role in punishment. However, neither requital nor
\npunishment in  general is a returning of evil for evil, and,
\ntherefore, I see no support for the demand that a murder (or
\nan act\tof treason,  or some  other serious offence) be paid
\nfor with a life”. The Biblical injunction ‘an eye for an eye
\nand a  tooth for  a tooth’  is often  quoted as\t if it was a
\ncommand to  do\tretributive  justice.  It  was\tnot.  Jewish
\nhistory shows  that it\twas meant  to be  merciful  and\t set
\nlimits to  harsh  punishments  which  were  imposed  earlier
\nincluding the death penalty for blasphamy, Sabbath breaking,
\nadultery, false\t prophecy, cursing,  striking a\t parent etc.
\nAnd, as\t one abolitionist  reminds us,\twho,  one  may\task,
\nremembers the  voice of\t the other Jew: “Whoever shall smite
\non thy right cheek, turn to him the other also ?”.\n<\/p>\n
     The  denunciatory\t theory\t of  punishment\t is  only  a
\ndifferent shade of the retributive theory but from a sternly
\nmoral plain. Lord Denning advanced the view before the Royal
\nCommission on  Capital Punishment: “The punishment inflicted
\nfor grave  crimes should  adequately reflect  the  revulsion
\nfelt by\t the great  majority of\t citizens for  them. It is a
\nmistake to  consider the  objects  of  punishment  as  being
\ndeterrent or reformative or preventive and nothing else. The
\nultimate justification of any punishment is not that it is a
\ndeterrent but  that it\tis the\temphatic denunciation by the
\ncommunity of  a crime, and from this point of view there are
\nsome murders  which in\tthe present  state of opinion demand
\nthe most emphatic denunciation of all, namely the
\n361<\/span>
\ndeath penalty”\t.. “The\t truth is  that some  crimes are  so
\noutrageous that\t society  insists  on  adequate\t punishment,
\nbecause the  wrong-doer deserves it, irrespective of whether
\nit is a deterrent or not”. The implication of this statement
\nis that\t the death  penalty is\tnecessary  not\tbecause\t the
\npreservation of\t society requires  it  but  because  society
\ndemands it.  Despite the  high moral  tone and\tphrase,\t the
\ndenunciatory theory,  as propounded,  is nothing but an echo
\nof the\tretributive theory  as explained  by Stephen who had
\nsaid earlier:  “The criminal  law stands  to the  passion of
\nrevenge in  much the same relation as marriage to the sexual
\nappetite”. The\tdenunciatory theory  is as inadequate as the
\nretributive theory  since it  does not justify punishment by
\nits results.  As Prof.\tHart points out the idea that we may
\npunish offenders  not to  prevent harm\tor suffering or even
\nthe reptition  of the  offence but  simply  as\ta  means  of
\nemphatically expressing\t our condemnation,  is uncomfortably
\nclose to  human sacrifice as an expression of righteousness.
\nAnd, the question remains: “Why should denunciation take the
\nform of punishment”.\n<\/p>\n
     The deterrent  theory may\tnow  be\t considered.  It  is
\nimportant to  notice here  that the  question is not whether
\nthe penalty  of death  has  deterrent  effect  on  potential
\nmurderers but  whether it deters more effectively than other
\npenalties say,\ta sentence of imprisonment for a long term ?
\nIs Capital  Punishment\tthe  most  desirable  and  the\tmost
\neffective  instrument  for  protecting\tthe  community\tfrom
\nviolent crime  ? What is the evidence that it has a uniquely
\ndeterrent force\t compared with the alternative of protracted
\nimprisonment ?\tIf the\tdeath penalty really and appreciably
\ndecreases  murder,   if\t there\t is  equally   no  effective
\nsubstitute  and\t if  its  incidents  are  not  injurious  to
\nsociety, we  may well  support the  death penalty.  But\t all
\nstudies made  on the subject, as I will presently point out,
\nappear to  have led to the conclusion that the death penalty
\nis inconsequential as a deterrent.\n<\/p>\n
     Sir James\tFitz James  Stephen, a great Victorian Judge
\nand a  vigorous exponent of the deterrent theory said in his
\nEssay on  Capital Punishment: “No other punishment of death.
\nThis is\t one of those committing crimes as the punishment of
\ndeath. This  is\t one  of  those\t propositions  which  it  is
\ndifficult to  prove simply  because they  are in  themselves
\nmore obvious than any proof can make them. It is possible to
\ndisplay ingenuity  in arguing  against it,  but that is all.
\nThe whole  experience of  mankind is in the other direction.
\nThe threat  of instant\tdeath is the one to which resort has
\nalways been  made when\tthere was  an absolute\tnecessity of
\nproducing some\tresults.. No  one goes to certain inevitable
\ndeath except by compulsion. Put the
\n362<\/span>
\nmatter the other way, was there ever yet a criminal who when
\nsentenced to  death and\t brought out to die would refuse the
\noffer  of  a  commutation  of  a  sentence  for\t a  severest
\nsecondary punishment?  Surely not.  Why is this? It can only
\nbe because  ‘all that a man has will be given for his life”.
\nIn any secondary punishment however terrible, there is hope;
\nbut death  is death;  its terrors  cannot be  described more
\nforcibly”.\n<\/p>\n
     Stephen’s statement was admittedly a dogmatic assertion
\nsince he  himself stated that it was a proposition difficult
\nto prove  though according  to him,  self evident. The great
\nfallacy in  the argument  of Stephen has been pointed out by
\nseveral criminologists. Stephen makes no distinction between
\na threat  of certain and imminent punishment which faces the
\nconvicted murderer and the threat of a different problamatic
\npunishment which  may  or  may\tnot  influence\ta  potential
\nmurderer. Murder  may be unpremeditated, under the stress of
\nsome disturbing\t emotion or  it may  be\t premeditated  after
\nplanning and  deliberation. Where the murder is premeditated
\nany thought  of possibility  of\t punishment  is\t blurred  by
\nemotion and  the penalty of death can no more deter than any
\nother penalty.\tWhere murder  is premeditated  the  offender
\ndisregards the risk of punishment because he thinks there is
\nno  chance  of\tdetection.  What  weighs  with\thim  is\t the
\nuncertainty of\tdetection and  consequent punishment  rather
\nthan the  nature of  the punishment. The Advisory Council on
\nthe Treatment  of Offenders  appointed by  the Government of
\nGreat Britain  stated in  their\t report\t in  1960  “We\twere
\nimpressed by  the argument  that the  greatest deterrent  to
\ncrime is  not the  fear of  punishment, but the certainty of
\ndetection”.\n<\/p>\n
     Prof. Hart\t countered  Stephen’s  argument\t with  these
\nobservations: ‘This  (Stephen’s) estimate  of the  paramount
\nplace in  human\t motivation  of\t the  fear  of\tdeath  reads
\nimpressively but  surely contains a suggestio falsi and once
\nthis is\t detected its  congency as  an argument in favour of
\nthe death penalty for murder vanishes for there is really no
\nparallel between  the situation of a convicted murderer over
\nthe alternative\t of life  imprisonment in  the shadow of the
\ngallows and  the situation of the murderer contemplating his
\ncrime. The  certainty of  death is  one thing,\tperhaps\t for
\nnormal people  nothing can  be compared\t with  it.  But\t the
\nexistence of  the  death  penalty  does\t not  mean  for\t the
\nmurderer certainty  of death  now. It  means not  very\thigh
\nprobability of\tdeath  in  the\tfuture.\t And,  futurity\t and
\nuncertainty, the  hope of  an escape, rational or irrational
\nfastly\tdiminishes   the  difference   between\t death\t and
\nimprisonment as\t deterrent, and\t may diminish  to  vanishing
\npoint.. The way in which the convicted
\n363<\/span>
\nmurderer may  view the\timmediate prospect  of\tthe  gallows
\nafter he  has been caught must be a poor guide to the effect
\nof  this   prospect  upon   him\t when  he  is  contemplating
\ncommitting his crime”.\n<\/p>\n
     A hundred\tand fifty  years ago a study was made by the
\nJoint Select  Committee appointed by the General Assembly of
\nConnecticut  and   they\t reported  “Your  Committee  do\t not
\nhesitate to  express their  firm belief\t that a well devised
\nsystem\tof   imprisonment,  one\t  which\t should\t render\t the
\npunishment certain and perpetual would be far more effectual
\nto restrain from crime than punishment of death”.\n<\/p>\n
     One of the most comprehensive enquiries ever undertaken
\non the\tsubject was  that made\tby the\tRoyal Commission  on
\nCapital Punishment. The Commission visited several countries
\nof Europe and the United States, addressed questionnaires to
\nmany other  countries in  search of information and examined
\ncelebrated experts and jurists. The Commission’s conclusions
\nare of\tsignificance. They said: “There is no clear evidence
\nin any of the figures we have examined that the abolition of
\nCapital Punishment  has led  to an  increase in the homicide
\nrate, or that its reintroduction to a fall.. prima facie the
\npenalty of  death is  likely to\t have a stronger effect as a
\ndeterrent to  normal human  beings than\t any other  form  of
\npunishment and\tthere is some evidence (though no convincing
\nstatistical evidence)  that this  is in\t fact  so.  But\t its
\neffect does  not operate  universally or uniformly and there
\nare many  offenders on\twhom it\t is limited and may often be
\nnegligible.  It\t  is  accordingly  important  to  view\tthis
\nquestion in  just perspective and not to base a penal policy
\nin relation  to\t murder\t on  exaggerated  estimates  of\t the
\nuniquely deterrent force of the death penalty”.\n<\/p>\n
     Prof. Thorsten  Sellin who\t made a\t serious and through
\nstudy of  the entire  subject in the United States on behalf
\nof the\tAmerican Law  Institute stated\this conclusion: “Any
\none who carefully examines the above data is bound to arrive
\nat the\tconclusion that\t the death  penalty, as\t we use\t it,
\nexercises no  influence on the extent or fluctuating rate of
\ncapital crime. It has failed as a deterrent”.\n<\/p>\n
     In 1962  statistics were  compiled\t and  a\t report\t was
\nprepared at  the instance of the United Nations Economic and
\nSocial Council\ton the\tquestion of  Capital Punishment, the
\nlaws and  practices relating  thereto  and  the\t effects  of
\ncapital punishment  and the abolition thereof on the rate of
\ncriminality. According\tto the\treport all  the\t information
\navailable appeared  to confirm\tthat neither total abolition
\nof the\tdeath penalty nor its partial abolition in regard to
\ncertain crimes only had
\n364<\/span>
\nbeen followed  by any notable rise in the incidence of crime
\nwhich was previously punishable with death.\n<\/p>\n
     Late Prime Minister Bhandarnaike of Sri Lanka suspended
\nthe death  penalty in  1956.  A\t Commission  of\t Inquiry  on
\nCapital Punishment  was appointed  and it  reported “If\t the
\nexperience of  the many\t countries which  have suspended  or
\nabolished capital  punishment is taken into account there is
\nin our\tview, cogent  evidence of  the unlikelihood  of this
\n‘hidden protection’..  It is,  therefore, our  view that the
\nstatistics of  homicide in Ceylon when related to the social
\nchanges since  the suspension of the death penalty in Ceylon
\nand when  related to  the experience of other countries tend
\nto disprove  the assumption of the uniquely deterrent effect
\nof the\tdeath penalty,\tand that in deciding on the question
\nof reintroduction  or abolition\t of the\t capital  punishment
\nreintroduction cannot  be justified  on the argument that it
\nis a  more effective deterrent to potential killers than the
\nalternative of\tprotracted imprisonment”.  It  is  a  tragic
\nirony that  Prime Minister  Bhandarnaike who  suspended\t the
\nCapital Punishment  in Ceylon  was murdered by a fanatic and
\nin the\tpanic that  ensued death penalty was reintroduced in
\nCeylon.\n<\/p>\n
     In the  United States  of America\tseveral studies have
\nbeen made  but ‘the  results simply have been inconclusive’.
\nThe majority  Judges of\t the United States Supreme Court who
\nupheld the  constitutionality of  the death  penalty in\t the
\nState of  Georgia in  Gregg v.\tGeorgia(1) were compelled to
\nobserve “Although some of the studies suggest that the death
\npenalty\t may   not  function   as  a  significantly  greater
\ndeterrent than\tlesser penalties,  there  is  no  convincing
\nempirical evidence supporting or refuting this view”. In the
\nsame case the minority Judges Brennan, J., and Marshall, J.,
\nwere convinced that ‘capital punishment was not necessary as
\na deterrent to crime in our society’.\n<\/p>\n
     In India no systematic study of the problem whether the
\ndeath penalty  is a  greater deterrent\tto murder  than\t the
\npenalty of  life imprisonment has yet been undertaken. A few
\nyears ago  I made  a little  research into  the\t matter\t and
\nstudied the  statistics relating to capital crime in several
\ndistricts of  Andhra  Pradesh  from  1935  to  1970.(2)\t The
\npattern was  most eratic  but it can be boldly asserted that
\nthe figures  do not  justify a\tconclusion  that  the  death
\npenalty has  been a deterrent, but, then, the figures do not
\nalso lead  inevitably  to  the\tconclusion  that  the  death
\npenalty has  not been  deterrent. One  of  the\tcomplicating
\nfactors is the discretion given to Judges to inflict
\n365<\/span>
\ndeath penalty  or imprisonment\tfor life  (about which\tmore
\nlater) which  destroys the  utility of\tany study  based  on
\nstatistics. The\t most reasonable conclusion is that there is
\nno positive  indication that  the  death  penalty  has\tbeen
\ndeterrent. In other words, the efficacy of the death penalty
\nas a deterrent is unproven.\n<\/p>\n
     “The  death  penalty,  rather  than  deterring  murder,
\nactually  deters   the\tproper\tadministration\tof  criminal
\njustice”.(1)   There\tis   the   absolute   finality\t and
\nirrevocability of the death penalty. Human justice can never
\nbe infallible.\tThe most  conscientious judge  is  no  proof
\nagainst sad  mistakes. Every  criminal lawyer  of experience
\nwill admit that cases are not unknown where innocent persons
\nhave been  hanged in India and elsewhere. And, it is not the
\nonly way  the death penalty strikes at the administration of
\ncriminal justice.  Some Judges and Juries have an abhorrence
\nof the\tdeath penalty  that they  would rather find a guilty
\nperson not  guilty than\t send even  a guilty  person to\t the
\ngallows. The  refusal of Juries to convict persons of murder
\nbecause of  the death  penalty is  a well  known  phenomenon
\nthroughout the\tworld. A perusal of some of the judgments of
\nthe Superior  Courts in India dealing with cases where Trial
\nCourts have  imposed sentences\tof death  reveals  the\tsame
\nreluctance to  convict because the result would otherwise be
\nto confirm  the sentence  of death.  Thus a guilty person is
\nprevented from\tconviction by  a possibility  that  a  death
\npenalty may otherwise be the result.\n<\/p>\n
     That is  not all. There is yet a more ‘grievous injury’
\nwhich the  death penalty  inflicts on  the administration of
\nCriminal Justice.  It rejects reformation and rehabilitation
\nof offenders  as among\tthe  most  important  objectives  of
\nCriminal  Justice,   though  the  conscience  of  the  World
\nCommunity speaking  through the voices of the Legislature of
\nseveral countries  of the world has accepted reformation and
\nrehabilitation as  among  the  basic  purposes\tof  Criminal
\nJustice. Death\tpenalty is the brooding giant in the path of
\nreform and  treatment of  Crime and  Criminals,\t “inevitably
\nsabotaging  any\t  social  or   institutional  programme\t  to
\nreformation’. It is the ‘fifth column’ in the administration
\nof criminal justice.\n<\/p>\n
     There is  also the\t compelling class  complexion of the
\ndeath penalty.\tA tragic  by product  of social and economic
\ndeprivation is\tthat the “have-nots” in every society always
\nhave been  subject to  greater pressure to commit crimes and
\nto  fewer   constraints\t than  their  more  affluent  fellow
\ncitizens. So,  the burden  of capital  punishment falls more
\nfrequently upon\t the  ignorant,\t the  impoverished  and\t the
\nunderpriviledged. In  the  words  of  Marshall,\t J.,  “Their
\nimpotence leaves them
\n366<\/span>
\nvictims of a sanction that the welthier, better represented,
\njust-as guilty\tperson can  escape. So\tlong as\t the capital
\nsanction is  used only against the forlorn, easily forgotten
\nmembers of  society, legislators are content to maintain the
\nstatus-quo  because  change  would  draw  attention  to\t the
\nproblem and  concern might develop. Ignorance is perpetuated
\nand apathy  soon  becomes  its\tmate  and  we  have  today’s
\nsituation”. As\ta matter  of historical\t interest it  may be
\nmentioned here\tthat when  in 1956,  in Great  Britain,\t the
\nHouse of  Commons adopted  a  resolution  “That\t this  House
\nbelieves that the death penalty for murder no longer accords
\nwith the needs or the true interests of a civilised society,
\nand calls on Her Majesty’s Government to introduce forthwith
\nlegislation for\t its abolition\tor for its suspension for an
\nexperimental period”,  and the\tdeath penalty Abolition Bill
\nwas introduced,\t ‘from the  hills  and\tforests\t of  darkest
\nBritain they  came:  the  halt,\t the  lame,  the  deaf,\t the
\nobscrue, the  senile and  the forgotten-the hereditary peers
\nof England,  united in\ttheir  determination  to  use  their
\nmedieval powers\t to retain  a medieval\tinstitution”,(1) and
\nthe bill  was torpedoed\t by  the  House\t of  Lords.  Capital
\nPunishment was however abolished in Great Britain in 1966.\n<\/p>\n
     There is finally the question whether the death penalty
\nconforms to the current standards of ‘decency’. Can there be
\nany higher  basic human right than the right to life and can
\nanything be more offensive to human dignity than a violation
\nof that\t right by  the\tinfliction  of\tthe  death  penalty.
\nBrennan, J., observed in Furman v. Georgia(2) “In comparison
\nto   all    other   punishments\t  today..   the\t  deliberate
\nextinguishment of  human  life\tby  the\t State\tis  uniquely
\ndegrading to  human dignity..  death for  whatever crime and
\nunder all  circumstances is truly an awesome punishment. The
\ncalculated killing  of a  human being by the State involves,
\nby its\tvery nature,  a\t denial\t of  the  executed  person’s
\nhumanity.. as  executed person\thas indeed lost the right to
\nhave rights”.  Senor Tejera  of Uruguay in the debate in the
\nUnited Nations\tsaid “A\t death penalty\tis an anachronism in
\nthe twentieth  Century and  it is significant that no one in
\nthe committee  has defended it. It is the duty of the United
\nNations to  promote progress  and to  protect man  from\t the
\nprejudices and barbarity surviving from the past”.\n<\/p>\n
     In a  large number\t of countries in the world where the
\nmurder rate  is higher\tthan in India, the death penalty has
\nbeen  abolished.   In  most  Latin  American  countries,  in
\nArgentina, Brazil, Columbia, Costa
\n367<\/span>
\nRica, Ecuador,\tMaxico, Panama, Peru and Uruguas, Venezuala,
\nin  European   countries,  in\tAustria,  Belgium,  Denmark,
\nGermany,   Italy,    Netherlands,   Norway,    Sweden,\t and
\nSwitzerland, in\t Iceland,  in  Israel,\tin  many  Australian
\nStates and  in many  of the  States in\tthe United States of
\nAmerica, death sentence has been abolished.\n<\/p>\n
     It is  in the  light of  the right\t to life  as a basic
\nconcept of  human dignity,  in the  context of\tthe unproven
\nefficacy of  the death\tpenalty as  a deterrent\t and in\t the
\nbackground of  modern theories\tof  criminology\t based\tupon
\nprogress in  the fields of science, medicine, psychiatry and
\nsociology and  in the  setting of  the march of the movement
\nfor abolition  of Capital  Punishment, that  Judges in India
\nare required to decide which sentence to impose in a case of
\nmurder, death or imprisonment for life?\n<\/p>\n
     Judges in India have the discretion to impose or not to
\nimpose the  death penalty.  It is  one of  the great burdens
\nwhich Judges in this country have to carry. In the past, the
\nreasons which  weighed in  the matter  of  awarding  or\t not
\nawarding the  sentence of  death varied widely and there was
\ncertainly room\tfor complaint  that  there  was\t an  unequal
\napplication of\tthe law\t in the\t matter of imposition of the
\nsentence of death. The varying outlook on the part of Judges
\nwas well brought out a few years ago by two decisions of the
\nAndhra\tPradesh\t  High\tCourt.\tIn  the\t first\tcase,  while
\nconfirming the conviction of certain “Naxalites” for murder,
\nthe judges  set aside the sentence of death and awarded life
\nimprisonment instead.  That  the  murder  was  not  for\t any
\npersonal motive but was in pursuit of some mistaken ideology
\nwas  the   reason  which   weighed  with   the\tjudges\t for
\nsubstituting the  sentence  of\tlife  imprisonment  for\t the
\nsentence of  death.  Within  a\tfew  months  this  view\t was
\nsubjected to  severe criticism\tby two other Judges, who, in
\nthe second  case confirmed  the sentence of death. Realising
\nthat  discretion,   even  judicial,   must   proceed   along
\nperceptive lines,  but, conscious,  all the  same, that such
\ndiscretion cannot be reduced to formulae or put into pigeon-
\nholes, this  Court has\tbeen at\t great pains eversince Ediga
\nAnnamma to  point the  path along  which to  proceed. In the
\nlatest pronouncement  of this  Court in\t Rajendra Prasad  v.
\nState of  Uttar Pradesh\t (supra) several relevant principles
\nhave been  enunciated to guide the exercise of discretion in
\nmaking the  choice between  the penalties of death and life-
\nimprisonment. I express my agreement with the elucidation of
\nthe principles in Rajendra Prasad v. State of Uttar Pradesh.
\n(supra).\n<\/p>\n
     Section 302 Indian Penal Code prescribes death or life-
\nimprisonment as\t the penalty  for murder. While so, the Code
\nof  Criminal   Procedure  instructs  the  Court\t as  to\t its
\napplication. The changes which
\n368<\/span>
\nthe Code has undergone in the last 25 years clearly indicate
\nthat   Parliament    is\t  taking    note   of\tcontemporary
\ncriminological thought\tand movement. Prior to 1955, Section
\n367(5) of  the Code of Criminal Procedure 1898 insisted upon
\nthe Court  stating its\treasons if the sentence of death was
\nnot imposed  in a case of murder. The result was that it was
\nthought that  in the  absence of  extenuating circumstances,
\nwhich were  to be  stated by the Court, the ordinary penalty
\nfor murder  was death.\tIn 1955,  sub-section (5) of Section
\n367 was\t deleted and  the deletion  was interpreted,  at any
\nrate by\t some Courts,  to mean\tthat the  sentence  of\tlife
\nimprisonment was  the normal  sentence for  murder  and\t the
\nsentence of  death could  be  imposed  only  if\t there\twere
\naggravating circumstances. In the Code of Criminal Procedure
\nof 1973, there is a further swing towards life imprisonment.
\nSection 354(3) of the new Code now provides:\n<\/p>\n
\t  “When the  conviction is for an offence punishable
\n     with death or, in the alternative imprisonment for life
\n     or imprisonment for a term of years, the judgment shall
\n     state the reasons for the sentence awarded, and, in the
\n     case of sentence of death, the Special reasons for such
\n     sentence.”\n<\/p><\/blockquote>\n
So, the\t discretion to impose the sentence of death or life-
\nimprisonment is\t not so\t wide, after all. Section 354(3) has
\nnarrowed the  discretion Death\tSentence is ordinarily ruled
\nout and\t can only  be imposed  for ‘Special reasons’, Judges
\nare left with the task of discovering ‘Special reasons’.\n<\/p>\n
     Let us  first examine if the Code of Criminal Procedure
\ngives  any   clue  leading  to\tthe  discovery\tof  ‘Special
\nreasons’.\n<\/p>\n
     Apart from Section 354(3) there is another provision in
\nthe Code which also uses the significant expression ‘special
\nreasons’. It  is Section  361. Section\t360 of the 1973 code
\nre-enacts, in  substance, Section  562 of  the 1898 Code and
\nprovides for  the release  on probation\t of good  conduct or
\nafter admonition  any person  not under\t twenty one years of
\nage who is convicted of an offence punishable with fine only
\nor with\t imprisonment for  a term of seven years or less, or
\nany person under twenty one years of age or any women who is
\nconvicted  of  an  offence  not\t punishable  with  death  or
\nimprisonment of\t life, if  no  previous\t offence  is  proved
\nagainst the offender, and if it appears to the Court, having
\nregard to the age, character or antecedents of the offender,
\nand to the circumstances in which the offence was committed,
\nthat it is expedient that the offender should be released on
\nprobation of  good conduct or after admonition. If the Court
\nrefrains from dealing
\n369<\/span>
\nwith an\t offender under\t Section 360 or under the provisions
\nof the\tProbation of Offenders Act, or any other law for the
\ntreatment,   training,\t or   rehabilitation   of   youthful
\noffenders, where  the Court could have done so, Section 361,
\nwhich is a new provision in the 1973 Code makes it mandatory
\nfor the\t Court\tto  record  in\tits  judgment  the  ‘special
\nreasons’ for  not doing\t so. Section  361 thus\tcasts a duty
\nupon the  Court to  apply  the\tprovisions  of\tSection\t 360
\nwherever it  is possible  to do\t so and,  to state  “special
\nreasons” if  it does  not do  so. In  the context of Section
\n360, the  “special reasons” contemplated by Section 361 must
\nbe such as to compel the Court to hold that it is impossible
\nto reform  and rehabilitate the offender after examining the
\nmatter with due regard to the age, character and antecedents
\nof the\toffender and  the circumstances in which the offence
\nwas committed.\tThis is\t some indication  by the Legislature
\nthat reformation  and rehabilitation  of offenders,  and not
\nmere deterrence,  are now  among the foremost objects of the
\nadministration of  criminal Justice  in our country. Section
\n361 and Section 354(3) have both entered the Statute Book at
\nthe same  time and  they are part of the emerging picture of
\nacceptance by  the Indian  Parliament of  the new  trends in
\ncriminilogy. We\t will not,  therefore, be  wrong in assuming
\nthat the personality of the offender as revealed by his age,
\ncharacter,  antecedents\t and  other  circumstances  and\t the
\ntractability of the offender to reform must necessarily play
\nthe most  prominent role  in determining  the sentence to be
\nawarded. Special  reasons must\thave some  relation to these
\nfactors.\n<\/p>\n
     Criminal justice  is not  a computer  machine. It deals
\nwith complex  human problems  and diverse  human beings.  It
\ndeals with  persons who\t are otherwise\tlike the rest of us,
\nwho work  and play,  who laugh and mourn, who love and hate,
\nwho yearn  for affection  and approval, as all of us do, who
\nthink, learn  and forget.  Like the  rest of us they too are
\nthe creatures  of circumstance.\t Heredity, environment, home
\nneighborhood, upbringing,  school, friends, associates, even
\ncasual\tacquaintenances,   the\t books\t that\tone   reads,
\nnewspapers, radio  and TV,  the economics  of the household,
\nthe  opportunities   provided  by   circumstances  and\t the
\ncalamities resulting  thereform, the  success and failure of
\none’s undertakings,  the affairs of the heart, ambitions and
\nfrustrations, the  ideas and  ideologies of  the time, these
\nand several  other ordinary  and extra-ordinary incidents of
\nlife contribute\t to a person’s personality and influence his
\nconduct. Differently  shaped and  differently  circumstanced
\nindividuals react  differently in  given situations. A Judge
\nhas to\tbalance the  personality of  the offender  with\t the
\ncircumstance the situations and the reactions and choose the
\nappropriate
\n370<\/span>
\nsentence to  be imposed. A judge must try to answer a myried
\nquestions  such\t  as  was   the\t offence  committed  without
\npremeditation or  was it  after due  deliberation ? What was
\nthe motive  for the  crime ?  Was it  for gain\t? Was it the
\noutcome of  a village  feud ?  Was it the result of a petty,
\ndrunken, street\t brawl, or  a domestic\tbickering between  a
\nhapless husband\t and a\thelpless wife ? Was it due to sexual
\njealousy ?  Was the  murder  committed\tunder  some  stress,
\nemotional or  otherwise ?  What is  the\t background  of\t the
\noffender ?  What is  his social and economic status? What is
\nthe level  of his  education or intelligence? Do his actions
\nbetray\ta  particularly\t callous  indifference\ttowards\t the
\nwelfare of  society or,\t on the\t other hand,  do they show a
\ngreat concern  for humanity and are in fact inspired by such
\nconcern\t  ?    Is   the\t   offender   so   perpetually\t and
\nconstitutionally at  war with  society that there is no hope
\nof ever\t reclaiming him\t from being a menace to society ? Or
\nis he  a person\t who is\t patently amenable to reform ? Well,
\nmay one\t exclaim with  Prof. Vrij “What audacity is involved
\nin these  three tasks:\tto interpret  life, explain  an act,
\npredict the latest inclination of a human mind.”\n<\/p>\n
     ‘Special reasons’,\t we may,  therefore say, are reasons
\nwhich are  special with\t reference  to\tthe  offender,\twith
\nreference to  constitutional and  legislative directives and
\nwith reference\tto the\ttimes, that  is, with  reference  to
\ncontemporary  ideas   in  the\tfields\tof  Criminology\t and
\nconnected sciences.  Special reasons  are those\t which\tlead
\ninevitably to  the conclusion  that the\t offender is  beyond
\nredemption,  having   due  regard  to  his  personality\t and
\nproclivity, to\tthe legislative policy of reformation of the
\noffender  and  to  the\tadvances  made\tin  the\t methods  of
\ntreatment etc.\tI will not attempt to catalogue and ‘Special
\nreasons’. I  have said\tenough and  perhaps more than what I
\nintended, to  indicate what  according to  me should  be the
\napproach to  the question.  Whatever I\thave said  is but to
\nsupplement what\t my brother Krishna Iyer has already said in
\nRajendra Prasad v. State of U.P.(1)
\n     Coming to\tthe case  before us,  our  brothers  Jaswant
\nSingh and  Kailasam, JJ.,  ordered ‘notice  confined to\t the
\nquestion of  sentence only.’  At the last hearing we granted
\nspecial leave  to appeal  on the  question of  sentence. The
\nappellant was  convicted by  the learned Additional Sessions
\nJudge, Alipore,\t for the  murder of his son and sentenced to
\ndeath. The  High Court\tof Calcutta confirmed the conviction
\nand sentence. The reason given by the learned Sessions Judge
\nfor giving  the sentence  of death  was that  the murder was
\n‘cruel and
\n371<\/span>
\nbrutal’ and  that the facts show the ‘grim determination’ of
\nthe accused to kill the deceased. The Sessions Judge made no
\nreference to the motive of the accused for the commission of
\nthe murder.  The High  Court while  confirming the  sentence
\nobserved that  the accused had previously murdered his wife,
\nsuspecting her\tinfidelity and\tsuspecting that the deceased
\nin the\tpresent case  was not his own son, that the sentence
\nof imrisonment imposed on him for the murder of his wife had
\nno sobering  affect and\t that he  had murdered\this own\t son
\nwithout\t any  mercy  or\t remorse  and  that  he,  therefore,
\ndeserved no  mercy. We do not think that either the Sessions
\nJudge or  the High  Court made\tthe right  approach  to\t the
\nquestion. The  Sessions Judge  was  wrong  in  imposing\t the
\nsentence of death without even a reference to the reason why
\nthe appellant  committed the  murder. The observation of the
\nHigh Court  that the  appellant deserved no mercy because he
\nshowed no  mercy smacks\t very much  of punishment  by way of
\nretribution. We have examined the facts of the case. We find
\nsome  vague  evidence  to  the\teffect\tthat  the  appellant
\nsuspected that\tthe deceased was not his own son and that he
\nused to\t get angry  with the  deceased for  not obeying him.
\nThere is  also vague  evidence that he had killed the mother
\nof the\tdeceased and  had suffered  sentence of imprisonment
\nfor that  offence. From the vague evidence that is available
\nwe gather  that the appellant was a moody person who had for
\nyears been  brooding over  the suspected  infidelity of\t his
\nwife and the injustice of having a son foisted on him. We do
\nnot think  that the  mere use  of adjectives like ‘cruel and
\nbrutal’ supplies the special reasons contemplated by Section
\n354(3)\tCriminal   Procedure  Code.  In\t the  light  of\t the
\nprinciples  enunciated\t in  Rajendra  Prasad  v.  State  of
\nU.P.,(1) and  in the  light of what we have said earlier, we
\ndo not think that there are any ‘special reasons’ justifying
\nthe imposition\tof the\tdeath penalty.\tWe accordingly allow
\nthe appeal  as regards\tsentence, set  aside the sentence of
\ndeath  and   impose  in\t its  place  the  sentence  of\tlife
\nimprisonment.\n<\/p>\n
     KRISHNA IYER,  J.-I have  had the\tadvantage of reading
\nthe Judgment  of my  learned brother, Shri Justice Chinnappa
\nReddy. I  wholly agree\twith his  reasoning and\t conclusion.
\nIndeed, the  ratio of Rajendra Prasad etc. v. State of Uttar
\nPradesh etc.(1),  if applied to the present case, as it must
\nbe, leads  to the  conclusion that  death sentence cannot be
\nawarded in  the circumstances  of the  present case. Counsel
\nfor the State, if I recollect aright, did state that in view
\nof the criteria laid
\n372<\/span>
\ndown in\t Rajendra Prasad’s case the State did not propose to
\nfile any  written submissions  against commutation  to\tlife
\nimprisonment. I\t concur with  my learned  brother and direct
\nthat the  appeal, confined  to sentence,  be allowed and the
\nalternative of life imprisonment imposed.\n<\/p>\n
V.D.K.\t\t\t\t\t      Appeal allowed\n373<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bishnu Deo Shaw @ Bishnu Dayal vs State Of West Bengal on 22 February, 1979 Equivalent citations: 1979 AIR 964, 1979 SCR (3) 355 Author: O C Reddy Bench: Reddy, O. Chinnappa (J) PETITIONER: BISHNU DEO SHAW @ BISHNU DAYAL Vs. RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT22\/02\/1979 BENCH: REDDY, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-148561","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBishnu Deo Shaw @ Bishnu Dayal vs State Of West Bengal on 22 February, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bishnu-deo-shaw-bishnu-dayal-vs-state-of-west-bengal-on-22-february-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bishnu Deo Shaw @ Bishnu Dayal vs State Of West Bengal on 22 February, 1979 - 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