TMI Blog1972 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ill-feeling between Chhotey Singh, on the one hand, and the appellant and Jagbir Singh, on the other. Both of them were minors at the time of the murder of Shivraj Singh. But by now they had grown up and it is plain from the evidence that Chhotey Singh's murder was the result of this ill-feeling. Chhotey Singh was murdered on September 10, 1969 at about 5.00 P.M. A day earlier, there was a quarrel between Jagmohan Singh and Jagbir Singh, on the one hand and Chhotey Singh, on the other, on the question of a right to irrigate their fields. However, the dispute was settled by persons who reached the spot at the time and nothing untoward happened. Next day, however, the appellant armed with a country made pistol and Jagbir Singh armed with a lathi concealed themselves in a bajra field and emerged from the same as Chhotey Singh passed by to go to his field for fetching fodder. The appellant asked Chhotey Singh to stop so that the matter between them could be settled once for all. Naturally Chhotey Singh tried to run away but he was chased by the appellant and shot in the back. Chhotey Singh fell down after running some distance and died. That is how the murder was committed. 3. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unreasonable and not in the interest of the general public. Secondly he contended, the discretion invested in the Judges to impose capital punishment is not based on any standards or policy required by the Legislature for imposing capital punishment in preference to imprisonment for life. In his submission this was a stark abdication of essential legislative function, and therefore Section 302-IPC is vitiated by the vice of excessive delegation of essential legislative function. Thirdly, he contended, the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution because two persons found guilty of murder on similar facts are liable to be treated differently one forfeiting his life and the other suffering merely a sentence of life imprisonment. Lastly it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life. The trial under the Criminal Procedure Code is limited to the question of guilt. In the absence of any procedure established by law in the matter of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.'' The responsibility of Judges in that reject is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is, therefore, essential that we approach this Constitutional question with objectivity and a proper measure of self restraint. 9. The arguments advanced by Mr. Garg against death penalty per se were practically similar to those which were addressed recently to the Supreme Court of America in the case of Furman v. State of Georgia (Nos. 69-5003, 69-5030 and 69-5031 decided on June 29, 1972) and obtained the assent of two Judges, Mr. Justice Brennan and Mr. Justice Marshall. In that case the Judges were invited to reject capital punishment on the ground that it violated the Eighth Amendment which forba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es by a majority of 5 to 4 set aside the sentences of death with which they were concerned, it was only Brennan and Marshall. JJ. who were prepared to outlaw capita! punishment on the ground that it was an anachronism, degrading to human dignity and unnecessary in modern life. The other three Judges namely Mr. Justice Dougla-. Mr. Justice Stewart and Mr. Justice White who formed the majority along with Brennan and Marshall, JJ. did not take the view that the Eighth Amendment prohibited capital punishment for all crimes and under all circumstances. Mr. Justice Douglas indeed held, that the death penalty contravened the Eighth Amendment. But his judgment is not capable of being read as requiring the final abolition of capital punishment. Mr. Justice Stewart and Mr. Justice White merely concluded that the death sentence before them must be set aside because prevailing sentencing practices did not comply with the Eighth Amendment. The minority of four Judges (Burger, CJ, Blackmun, Powell and Rehnquist JJs) held that death penalty did not contravene the Eighth Amendment. Mr. Justice Douglas in reversing the death sentence was of the view that the Eighth Amendment required legislatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply the due process clause. Indeed what is cruel and unusual may. in conceivable circumstances, be regarded as unreasonable. But when we are dealing with punishments for crimes as prescribed by law we are confronted with a serious problem. Not a few are found to hold that life imprisonment especially, as it is understood in U.S.A. is cruel. On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us, from ancient times right upto the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. For example, Article 72(1)(c) provides that the President shall have power to grant pardons, reprieves respites or remissions of punishment or to suspend remit or commute the sentence of any person convicted of any offence in all cases where the sentence is a sentence of death. Article 72(3) further provides that Nothing in Sub-clause (c) of Clause (1) shall affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very foundation. Such murders cannot be simply wished away by finding alibis in the social mal-adjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society. 15. We have grave doubts about the expediency of transplanting Western experience in our country. Social conditions are different and so also the general intellectual level. In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. We have not been referred to any large scale studies of crime statistics compiled in this country with the object of estimating the need of protection of the society against murders. The only authoritative study is that of the Law Commission of India published in 1967. It is its Thirty-Fifth Report. After collecting as much available material as possible and assessing the views expressed in the West both by abolitionists and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Judge or an Additional Sessions Judge with considerable experience in the trial of criminal cases. If the Sessions Judge, after trial, comes to the conclusion that the accused is guilty of murder and deserves to be sentenced to death, he is required Under Section 374 of the Criminal Procedure Code to submit to the High Court the proceedings before him and it is the High Court which has to review the whole evidence and consider whether the sentence of death passed by the Sessions Judge should be confirmed. The rule Under Section 378 is that this review of the evidence shall be made by a bench of not less than two Judges. If the sentence of death is confirmed, the accused can in appropriate cases appeal to the Supreme Court by special leave. In cases where the Sessions Judge acquits the accused of murder but the High Court in appeal sets aside the acquittal and sentences him to death, the accused is entitled under the Constitution to prefer an appeal as of right to this Court. It will be thus seen that there are inbuilt procedural safeguards against any hasty decision. 18. As is well known the subject of capital punishment is a difficult and controversial subject long and hotl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed its legislative function and this delegation of its power to the Judges is vitiated by the vice of excessive delegation. We think there is no merit in this submission. In this connection we have to take note of the policy of the law with regard to crimes and their punishments. The position in England is stated by Halsbury in Laws of England, Third Edition, Volume 10 at page 486. The relevant portion of para 888 is as follows : DISCRETION OF COURT AS TO PUNISHMENT In all crimes except those for which the sentence of death must be pronounced a very wide discretion in the matter of fixing the degree of punishment is allowed to the Judge who tries the case. The policy of the law is, as regards most crimes, to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit. The exercise of this discretion is a matter of prudence and not of law, but an appeal lies by the leave of the Court of Criminal Appeal against any sentence not fixed by law, and if leave is given, the sentence can be altere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sentence should be imposed or the lesser sentence, adding further that this procedure had worked quite well in India for generations and there was no reluctance on the part of the Judges to assume the responsibility to pass the death sentence. The Judges in England, however, unanimously refused to accept such a responsibility. The question then arose whether the responsibility for the death sentence may be given to the Jury as was done in some of the States in America. The Royal Commission fell in with this suggestion and expressed itself as follows (See para 595 of the Report). It is not questioned that the liability to suffer capital punishment under the existing law is rigorous to excess. We cannot but regard it as a reproach to our criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action. The law itself should mitigate it. We have been forced to the conclusion that this cannot be done by a redefinition of murder or by dividing murder into degrees. No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment . 23. In the whole code there is only one section (Section 303) where death is prescribed as the only punishment for murder by a person under sentence for imprisonment for life. There are several other sections in which death sentence could be imposed but that sentence is not mandatory. Under two sections namely Section 302-murder, and Section 121-waging war against the Government of India, alternative punishments of death or imprisonment for life are leviable. These are the two sections where the maximum punishment is death and the minimum is imprisonment for life. There are two other sections in the Indian Penal Code where the minimum punishment is prescribed-one is Section 397 which provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years and (2) Section 396 which provides that at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon the imprisonment with which such offender shall be punished s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn standards. Take, for example, the offence of criminal breach of trust punishable Under Section 409-IPC. The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day's imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that section, that would be an impossible task. All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence they should on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories-simple hurt and grievous hurt. Simple hurt is again sub-divided-simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence-Section 324. Where grievous hurt is caused by a lethal weapon, it is punishable Under Section 326 and is a more aggravated form of causing grievous hurt than the one punishable Under Section 325. Under Section 326 the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission to the view that discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. See : para 595 of the Commission's Report. 26. American experience is not different. In some of the States murder and rape were punishable with death. But that was not the only punishment. The Law gave the Jury discretion in capital sentencing, and the question arose recently before the Supreme Court of America in McGauthn v. California United States Supreme Court Report Lawyers Edition. 28. 713 whether in the absence of any standards for deciding when the accused should be sentenced to death or to life imprisonment the provision of law which gives the discretion to the Jury was Constitutional. Mr. Justice Harlan delivered the opinion of five Judges and Mr. Justice Black substantially agreed with that opinion in a separate judgment. The majority held that the infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury would need. The majority agreed with the view of the Royal Commission already referred to and observed those who have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. 28. It was next contended by Mr. Garg that uncontrolled and unguided discretion in the judges to impose capital punishment or imprisonment for life was hit by Article 14 of the Constitution. We do not find any merit in this contention also. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination since facts and circumstances of one case can hardly be the same as the facts and circumstances of another. It has been pointed out by this Court in Budhan Choudhry and Ors. v. The State of Bihar 1955 CriLJ 374 . can hardly be invoked in matters of judicial discretion. This Court observed at page 1054 : It has, however, to be remembered that, in the language of Frankurfcer. J. in Snowden v. Hughes, 'the Constitution does not assure uniformity of decisions or immunity from merely erroneous action whether by the Courts or the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces in so far as they are relevant to the crime and how it was committed and since at the end of the trial he is liable to be sentenced, all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Apart from the cross-examination of the witnesses, the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material facts. Again he and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence. In important cases like murder the court always gives a chance to the accused to address the court on the question of sentence. Under the Criminal Procedure Code after convicting the accused the court has to pronounce the sentence according to law. In a Jury trial if the accused is convicted the Judge shall (unless he proceeds in accordance with the provisions of Section 562) pass sentence on him according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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