Summary
(Per majority-Krishna Iyer and Desai, JJ.)
^1. The only question before the Court is as to when and why shall capital punishment be pronounced on a murderer and why not in other cases, within the confines of the Code.Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued resort to the death sentence mirrors the uncertainties and conflicts of values in the community itself. [89G & 90D]2. Section 302 of the IPC throws little light on when the court shall be the sentence of why the lesser penalty shall be preferred. Since law reflects life, new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental to be permitted except on the gravest ground and under the strictest scrutiny. [90F: 94C-D]3. To say that discretion of the Judge passing the sentence under s. 302 IPC is guided by well-recognised principles shifts the issue to what those recognised rules are. The big margin of, subjectivism. a preference for old precedents, theories of modern penology, behavioral emphasis or social antecedents, judicial hubris or human rights perspectives, reverence for outworn social philosophers-this plurality of forces plays a part in swining the pendulum of sentencing justice erratically. Until Parliament speaks, this Court cannot be silent. [95; 97G]4. Executive commutation is no substitute for judicial justice, at best it is administrative policy and at worst pressure-based partiality. The criteria for clemency are often different [99C]5. In so far as s. 302 IPC is concerned several attempts had been made to restrict or remove death penalty but never to enlarge its application. Parliamentary pressure has been to cut down death penalty, although the section formally remains the same. In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taking to life sentence. In other words, the legislative trend seems to be while formerly the rule was to sentence to death a person who is convicted for murder, it is now to impose a lesser sentence for reasons to be recorded in writing. Formerly, capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. After 1955 courts were left equally free to award either sentence. The 1973 Code has made an an mistakable shift in legislative emphasise under which life imprisonment for murder is the rule and capital sentence the exception for reasons to be stated. [101D:104B-C]79 6. Criminologists all the world over, however, argued that death has decisively lost the battle, and even in our Codes it has shrunk into a weak exception. What are the exceptional cases ? Personal story of an actor in a shocking murder, if considered, may bring tears and soften the sentence. He might have been a tortured child, an ill- treated orphan, a jobless man or the convict's poverty might be responsible for the crime. [106G: 107B]7. In the post Constitution period s. 302 IPC and s.345(3) of the Cr. P.C. have to be read in the humane light of Parts III and IV illumined by the Preamble to the Constitution. In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public order would be smashed irretrievably. Such extraordinary grounds alone constitutionally qualify as special reasons. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing may be. The searching question the Judge must put to himself is what is so-extra-ordinari- ly reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totality of facts. [121F; 110E-F]8. The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty reasonable as penal penacea. [122C]9. The current ethos, with its strong emphasis on human rights and against death penalty, together with the ancient strains of culture spanning the period from Buddha to Gandhi must ethically inform the concept of social justice which is a paramount principle and cultural paradigm of our Constitution [l22C-D]10. The personal and social, the motivational and physical circumstances, of the criminal are relevant factors in adjudging the penalty as clearly provided for under the Code of 1973. So also the intense suffering already endured by prison torture or agonishing death penalty hanging over head consequent on the legal process. [112D-El 11. Although the somewhat obsolescent Mc'Naughten Rules codified in s. 84 of the Penal Code alone are exculpatory, mental imbalances, neurotic upsets and psychic crises may be extenuatory and the sense of diminished responsibility may manifest itself in judicial clemency of commuted life incar- ceration. [l22F]12. The social justice which the Preamble and Part IV (Art. 38) highlight, as paramount in the governance of the country has a role to mould the sentence. If the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are-never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore social justice projected by Art. 38 colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14.This complex of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching menacing proportions, economic offenders profit killing in an intentional and organised way, are such categories in a Third World setting. [112D: 114C: 112G]80 13. Survival of an orderly society without which the extinction of human rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties in strategic situations. Those officers of law, like policemen on duty or soldiers and the like have to perform their functions even in the face of threat of violence, sometimes in conditions of great handicap. If they are killed by designers of murder and the law does not express its strong condemnation in extreme penalisation, justice to those called upon to defend justice may fail. This facet of social justice also may in certain circumstances and at certain stages of societal life demand death sentence.[123D-E]14. Special reasons necessary for imposing death penalty must relate not to the crime as such but to the criminal. [124E]Jagmohan Singh v. State of U.P., [1973] 1 SCC 20; Ediga Annama v. State of A.P., [1974] 4 SCC, 443; Sunil Batra v.Delhi Admn., [1978] 4 SCC 494 at 569 & 572; referred to.Capital punishment in India; The Impact of the Ediga Anamma, by Prof. A. R. Blackshield-(July 1977), referred to.Rajendra Prasad's case: The family to which the appellant and the deceased belonged were on inimical terms. The appellant who was the son of one of the families murder ed the deceased. After some years in the prison, he was released on Gandhi Jayanti day. On return some minor incident ignited his latent feud and he stabbed to death a friend of the opposite family, he was sentenced to death.The second murder is not to be confounded with the persistent potential for murderous attacks by the murderer.This was not-a menace to the social order but a specific family feud. Here was not a youth of controllable violent propensities against the community but one whose paranoid preoccupation with a family quarrel goaded him to go the rival. So long as the therapeutic processes are absent from prisons these institutions, for from being the healing hope of society, prove hardening schools to train desperate criminals. Desperate criminal is a convenient description to brand a person. Seldom is the other side of the story exposed to judicial view. There is nothing on record to suggest that the appellant was beyond redemption; nothing on record hints at any such attempt inside the prison. The appellant showed no incurable disposition to violent outbursts against his fellow-men. There is therefore, no special reason to hang him. He should be awarded life imprisonment.Kunjukunju's case: The appellant, a married man with two children, developed illicit sex relations with a fresh girl. In order to win her hand he murdered his wife and two children. There is no evidence to show that he was a desperate hedonist or randy rapist. He is not a social security risk altogether beyond salvage by therapeutic life sentence. Death sentence is commuted to life imprisonment.Dubey's case: The appellant, a young man, aged about 20, stabbed to death three members of the family with whom his family had a quarrel over partition of 81property. It is illegal in this case to award capital sentence without considering correctional possibilities inside prison. He was not a murderer born but made by the passion of family quarrel. He could be saved for society with correctional techniques and directed into repentance. A family feud, an altercation, a sudden passion, although attended with extraordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence-these catenate of circumstances bearing on the offender call fol the lesser sentence.Sen l. (Dissenting) 1. (a) It is constitutionally and legally impermissible for the Supreme Court while hearing an appeal by special leave under Art. 136 of the Constitution, on a question of sentence, to restructure s. 302 of the Indian Penal Code, 1860 or s. 354, sub-s. (3) of the Code of Criminal Procedure 1973, so as to limit the scope of the sentence of death provided for the offence of murder under s. 302. [131F-G](b) The question whether the scope of the death sentence should be curtailed or not, is one for the Parliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, therefore, properly the domain of the legislature, not the judiciary. [137E](c) In an appeal confined to sentence under Article 136 of the Constitution, Supreme Court has not only the power but as well as the duty to interfere if it considers that the appellant should be sentenced 'differently', that is, to set aside the sentence of death and substitute in its place the sentence of imprisonment for life, where it considers, taking the case as a whole, the sentence of death to be erroneous, excessive or indicative of an improper exercise of discretion; but at the same time, the Court must impose some limitations on itself in the exercise of this broad power. In dealing with a sentence which has been made the subject of an appeal, the Court will interfere with a sentence only where it is 'erroneous in principle'. The question, therefore, in each case is whether there is an'error of principle' volved.[134G-Hl (d) The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime. Mere compassionate sentiments of a humane feelings cannot be a sufficient reason for not confirming a sentence of death but altering it into a sentence of imprisonment for life. In awarding sentence, the Court must, as it should, concern itself with justice, that is, with unswerving obedience to established law. It is, and must be, also concerned with the probable effect of its sentence both on the general public and the culprit. Judges are not concerned with the morales or ethics of a punishment. It is but their duty to administer the law as it is and not to say what it should be. It is not the intention of the Supreme Court to curtail the scope of the death sentence` under s. 302 by a process of judicial construction inspired by the personal views [35B: 137D-E]2. It is also-not legally permissible for this Court while hearing an appeal in a particular case where a capital sentence is imposed, to define the expression "Special reasons" occurring in sub-s. (3) of s. 354 of the Code, in such 82See the full content of this document
Extract
Rajendra Prasad Etc. Etc. VS. State Of Uttar Pradesh
PETITIONER: RAJENDRA PRASAD ETC. ETC.Vs.RESPONDENT: STATE OF UTTAR PRADESHDATE OF JUDGMENT09/02/1979BENCH: KRISHNAIYER, V.R.BENCH: KRISHNAIYER, V.R.DESAI, D.A.SEN, A.P. (J)CITATION: 1979 AIR 916 1979 SCR (3) 78 1979 SCC (3) 646CITATOR INFO : R 1979 SC 964 (1,23,27,28,29)E 1979 SC1384 (2,10,11,13,14,15,20,22,23,24,O 1980 SC 898 (4,5,6,7,8,142,198,202)MR 1982 SC1325 (19,20,26,38,40,61,67,72,78)RF 1983 SC 361 ((2)10)ACT: Penal Code-5. 302-Scope of-death Sentence-When should be awardJUDGMENT: virtually has the effect of abolishing the death sentence.[137H](a) Under s. 354, sub-s. (3) of the Code of Criminal Procedure, 1973, the Court is required to state the reasons for a sentence awarded, and in the case of imposition of a sentence of death the Judge has to record "special reasons"for imposing death sentence. Punishment for murder as a rule should be life imprisonment and death sentence is only an exception. [l59A](b) It is neither feasible nor legally permissible for this Court to give a definite connotation to the expression"special reasons" occurring in s. 354 sub-s. (3) of the Code of Criminal Procedure, 1973. It is difficult to put "special reasons" in a straight-jacket. Each case must depend on its own particular facts. The question of sentence must be left to the discretion of the Sessions Judge trying the accused.Under the present Code, a trial for murder is divided into two stages. There is a bifurcated trial. The first part of the trial is directed solely to the issue of guilt or innocence, and concludes with the finding of the Sessions Judge on that issue. At the end of the trial when he comes to a conclusion of guilt, he has to adjourn the case for hearing the accused on the question of sentence. [159C-D]Section 235, sub-s. (2) of the Code specifically provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt is recorded against him. The burden is upon the prosecution to make out a case for imposition of the extreme penalty. Where a sentence of death is passed, the Sessions Judge has to make a reference to the High Court under s. 366, sub-s. (1) of the Code. Under s. 367, sub-s. (1) if the High court thinks a further inquiry should be made into, or additional evedence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Sessions. In a case submitted under s.366, the High Court under s. 368(a) may either confirm the sentence, or pass any other sentence, i.e. reduce the sentence of death into a sentence of imprisonment for life. thereafter an appeal lies to this Court by a special leave under Article 136 on the question of sentence. [159E-H]Failing the appeal, there is the President's power to grant reprieve and pardon under Article 72 (1), as well as the Governor's power of commutation under Article 161 of the Constitution which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute and to remit sentence of punishment. All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve, and the power to commute a death sentence is freely exercised, whenever there is some doubt as to the severity of the punishment. Under the present system the Prerogative of Mercy in the case , of persons under sentence of death works well and it produces results gene rally regarded as satisfactory. It helps in mitigating the rigour of the death sentence, particularly in case of those murderers whose execution would offend the public conscience. Very few persons under a sentence of death-may be one or two in a year, in a State are usually executed. It is, therefore, not proper for the Court to trench upon the President's or the Governor's perogative to grant pardon or reprieve under Articles 72(1) and 161 in taking 83upon itself the task of commutation of a death sentence, which is properly imposed, in the facts and circumstances of a particular case, merely because there is a doubt that the Executive may commute the sentence ultimately, or by one's views as to the utility of death penalty. [160A-E]Balwant Sing case [1976] 2 SCR 684; Ambaram's Case 11974] 4 SCC 298 and Sarveshwar Prasad Sharma's case 11978]1 SCR 360; referred to.(c) Judges are entitled to hold their own views, but it is the bounden duty of the Court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders. It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the powe...
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