BISHNU DEO SHAW @ BISHNU DAYAL versus STATE OF WEST BENGAL

BISHNU DEO SHAW@ BISHNU DAYAL v. STATE OF WEST BENGAL

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February 22, 1979

355

A

[V. R. KRISHNA IYER AND 0. CllINNAPPA REDDY, JJ.J

B

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 Reason:/', meaning of-Sec tion 354(3) 360. 361 of Crl. P.C.-Scope of.

The appellant was convicted by the Additional Session's Judge Alipore for the murder of his son 00.d sentenCed to death. The reason given by the C 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 com mission of the murder. The High Court while confirming the conviction and sentence observed that the accused had previously murdered his wife, suspect- ing her infidelity that the sentence of imprisonment imposed on him for the mur~er of his wife had no sobering effect, that he suspected that the deceased D 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 E

death penalty.

[3 71 Fl

(a) The Sessions Judge was wrong in imposing the sentence of death the

the appellant comn1itted

reason v"hy

without even a reference to the murder.

[371 CJ

(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 CJ

F

(c) From the evidence, it is clear that the appellant 'Whs 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 reasons contemplated by "cruel and brutal" does not supply section 354(3) of the Criminal Procedure Code, 1973. [3.710-E]

the special

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Rajendra Prasad v. State of Utrar Pradesh, [1979] 3 S.C.R. 78, applied.

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2. "Special reasons 1

' are reasons which are special with reference

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 which lead inevitably to the conclusion that the offender is beyond redemp· legislative tion, having due regard to his personality and proclivity, to

reasons

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SUPREME COURT REPORTS

[1979] 3 s.c.R,

policy of reformation of the offender and to the advances made 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]

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(a) Apart from Section 354(3), there is another prov1s1on 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 ~16 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 COn• victed 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 antec-e· dents of the offender, and to the circunlStances the offellce was committed, that it is expedient that the offender should be re1eased on proba· tion of good conduct or after admonition. If the Court refrains from den.I· ing with an offen<Jer under Section 360 or under the provisions of the Pro· bation 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 tnendatory 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 prov1s1ons of Section wherever it is possible to do so and, to state "special reasons" it it does not do so.

[368F-H, 369A-Bl

in which

(b) In the context of Section 360,

the "Special reasons" contemplat'd by Section 361 must be such as to compel the Court to hold that it is iin· possible 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 entere_d 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 crimino logy. Therefore, the personality of the offender as revealed by his age 1 character, antecedents and other circumstances and tractability of the offender to reform must necessarily play the most prominent role in determin~ ing the sentence to be awarded. Special reasons must have some relation to. these factors.

(369B-EJ

the

It deals with

3. Criminal justice· is not a computer machine.

con1plex-. human problems and diverse 1 human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, whe> 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 environment, home neighbourhood, upbringing, circumstances. Heredity, school, friends, associates, even casual acquaintences, the books that one reads, newspapers, radio and TV, the economics of the household, the· oppor-

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BISHNU DEO V. WEST BENGAL

357

tunities provided by circumstances and the calarnaties resulting therefrom the A 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 indivi· duals reaoet differently in given situations. A judge has to balance the personality of the offender with the circumstances the situations and the reaction~ and choose the appropriate sentence to be imposed. A judge must try tO 3.nswcr a myriad question such as was the offence comn1itted without premeditation \Va-s or was it after due deliberation ? What was the motive for the criwe '! 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 sexua-1 jealousy ? Was the n1u:·<ler com mitted under some stress, emotional or otherwise ? What is the background of the offende( ? 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 welfaire 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 \Var \Vith society that there is no hope of ever reclaiming him from being a n1enace to society ? Or is he a person who is patently amenable to reform ? [369 E-H, 370 A-CJ

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(a) Judges in India have the discretion to impose or not

the is one of the great burdens \Vhich judges in this country death penalty. In the past, the reasons which \veighed in the matter of awardin:; have to carry. or not awarding the sentence of death varied widely a-nd there was certainly room for complaint that there was unequal t:lpplication of the law in the matter of imposition of the sentence of death. {367C-D]

in1pose

to

(b) There cannot be any higher basic human right than the right to life and there ca·n 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 concf1'.()t of human dignity, in the conb!xt 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 ·!jeJds of science, medicine, psychiatry and sociology and in the setting of the ma·rch of the movement for abolition of Capital Punishment, that Judges in India arc required to decide \Vhich sentence to impose in a case of murder, death or imprisonn1ent fer life?

[3660, 367B-C]

Furman v. Georgia, 33 Lawyers Edn. 2nd Series 346 1eferred to.

( c) Realising that discretion, even judicial_, 1nust 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 be~n 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 U11ar Pradesh, several relevant principles have been enunciated to guide the exercise of discre tion in making the choice betv.·een the penalties of death ~:nd Jife-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.

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SUPREME COURT REPORTS

[1979] 3 S.C.R.

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 "'here the choice, is between death and life imprisonment las 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 [359H, 360AwB, 36!BJ

results.

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5. (a) The very nature Of the penalty of death makes it imperative that the

at every suitable opportunity life imprisonment should be preferred to death penalty.

[359E]

Furman v. Georgia, 33 L.ed. 2nd Edn. 346; relied on.

(b) AU studies made on the subject whether capital punishnlent is the most desirable and most effective instrument for protecting the community fr01:.1 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]

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( 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 dearh penalty. Human justice1 can never be infallible. The most conscientious judge is no proof against any mistakes. Cases are unknown where innocent persons haye 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 perscn 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 )s prevented from conviction by a possibility that a death penalty may otherwise be the result.

(365C-D]

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(c) Yet a more 'grievious injury' which the death penailty 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 spelaking through the voices of the Legislature of several countries of the world has accepted reforma•tion ard rehabilitation as among the basic purposes of Criminal Justice. Death penalty is the broOOing giant in the part of reform and treatment of Crime and tO Crimiilals, 'inequitably sabotaging any social or reformation'. It is the 'fifth column' in the administration of criminal justic:e. [365E-GJ

institutional programme

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( d) There is also the compelling class complexion of the death penalty. A tragic by-product of social and economic deprivation is th.Qt the 'have-nots'

BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)

359

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in every society always have been 5Ubject to grea¢:er pressure to commit crimes and to fewer constraints than their more afiluent fellow citizens. So, the burden -0f capital punishment falls more frequently upon the ignorant, the improverished and the underprivilege. [365 G-H]

CRIMINAL APPELLATE JURISDICTION : Crimihal 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 Appellaitt. G. s. Chatterjee for the Respondent. The following Judgments were delivered :

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CHINNAPPA REDDY, J.-"The murderer has killed. It is wrong to kill. Let us kill the murderer". That was how a Mr. Bonsall of Manches ter (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 D Death Penalty. The unsoundness of the rationale of the demand of discuss·~d and exposed by my brother -Oeath for murder has been Krishna Iyer, J., in a recent pronouncement in Rajendra Prasad v .. State of Uttar Pradesh('). bas been said there.

I would like to add an appendix to what

The dilemma of the Judge i'n 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 imprison- ment should be preferred to the death penalty. "The penalty of death differs from all other forms of criminal punishment, uot ih It is degree but in kind. unique in its rejection of rehabilitation of the convict as a basic pur- pooe of criminal justice. And, it is unique finally in its absolute re· nuhciation of all that is embodied in our concept of humanity" (per Stewart J., in Furman v. Georgia) ( 2 ). "Death is irrevocable, life im prii;onment is not. Death, of course, makes rehabilitation impossible, 1ife in Furman v. Georgia).

imprisonment doos not"

(per Marshall, J.,

It is unique in its

irrevocability.

total

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Theories of punishment, there are many reformative, preventive, retributive, denunciatory and deb~rre'nt. Let us examine which cap .fits capital punishment. The reformative theory is irrelevant where H

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(I) [1979] 3 S.C.R. 78. '(2) 33 Lawyers Edn. 2nd Series 346.

360

SUPREME COURT REPORTS

[1979] 3 S.C.R-

A 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.

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The retributive theory is incongruous in an era of enlightenment. It is inadequate as a theory sinoe it does not attempt to justify punish ment by any beneficial results either to the society or to the persons It is, however, hecessary to clear a common misnnder punished. standing that the retributive theory justifies the death penalty. Accord ing 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 It does not mean returning of evil for evii but the righting crime. It implies the imposition of a just but no more than a of a wrong. jnst penalty and automatically rules out execessive punishment and, therefore, capital punishment. According to a modern exponent of the v::tributive theory of justice "capital punishmeht . . . . . . 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 pro perly understood in terms of a concept of just law, undoubtedly does have a legitimate ro~e in punishment. However, neither requital nor punishment in general is a returning of evil for evil, and, theP::fore, 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 lifo". The Biblical injunctioh 'an eye for an eye and a tooth for a tooth' is often quoted as if it was a command to do retributive justice. 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 ?".

It was not.

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The d•::nunciatory theory of punishment is only a different shade of the retributive theory but from a sternly moral plain. Lord Den- ning advahced the view before the Royal Commission on Capital Punishment : "The punishment inflicted for grave crimes should ade quately reflect the revulsion felt by the .great majority of citizens for them- It is a mistake to consider the obj•::cts of punishment as being deterrent or reformative or preventive and nothing else. The ultimate justification of a'ny punishment is not that it is a deterrent but that it is th:: emphatic denunciation by the community of a crime, and from this point of view them are some murders which in the present state of opinion demand the most emphatic denunciation of all, namely the

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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)

361

death penalty" . . . . . . "The truth is that some crimes are so out rageous 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 th•c 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 dennncia tory 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 mar riage to the sexual appetite". The denunciatory theory is as inade-. quate as the retributive theory since it does not justify punishment by its results. As Prof. Hart points out the idea that we may puhish offenders not to prevent harm or suffering or even the reptition of the offence but simply as a means of emphatically expressing our con~ demnation, is uncomfortably close to human sacrifice as an expression of righteousness. And, the qu•ostio'n remains : "Why should denun ciation 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, hai;; deterrent effect on potential murderers but whether it deters more cffectively than other. penalties say, a sentence of imprisonment for a Is Capital Punishment the most desirable and the most long term ? 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 mad•c on the subject, as I will presently point out, appear to have led to the conclusion that the death penalty is inconsequential as a deterrerrt.

Sir James Fitz James Stephen, a great Victorian Judge and a vigorous expo'nent 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. Thi; 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 possi ble to display ingenuity in arguing against it, but that is all. The who'•' experie'nce 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

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SUPREME COURT REPORTS

[1979] 3 s.c.R.

matter the other way, was there ever yet a criminal who when sen tenced to death and brought out to die would refuse the offer ol' a commutati<in of a sentence for a severest secondary punishment ? It can only be because 'all that a man has Surely not. Why is this? will be given for his life''. In any secondary punishment however terrible, there is hope; but death is death; its terrors cannot be des cribed more forcibly".

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Stephen's statement was admittedly a dogmatic assertion since he himself stated that it was a proposition difficult to prove though accord ing 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 emotior: 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 premedit~,ted 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 deter rent to crime is not the fear of punishment, but the certainty of detection".

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Prof. Hart countered Stephen's argument with these observations: 'This (Stephen's) estimate of the paramount place in human motiva impressively but surely contaim a tion of the fear of death reads · 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 or 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 he compared with it. But the existence of the death penalty does not It means not very mean for the murderer certainty of death now. high probability of death in the future. And, futurity and uncertainty, the hope of an escape, the difference between death and imprisonment as deterrent, and may diminish to vanishing point ....... The way in which the convicted

rational or irrational lastly diminishes

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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)

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 Selec.t Committee appointed by the General Assembly of Connecticut and they reported "Your Committee do not hesitate to express their imprisopment, one which firm belief that a well devised system of 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 Punish ment. The Commission visited several countries of Europe and the United States, addressed qnestionnaires to many other couutries 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 fade the penalty 0f 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 unifonnly and there are many offenders on whom it is limited and may often be negligible. It is accordingly important ta view this question in just perspective and not ta base a penal policy in relation to murder an exaggerated estimates of the uniquely deterrent farce of the death penalty".

Prof. Thorsten Sellin who made a serious and thorough study of the entire subject in the United States on behalf of the American Law In,stitute 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 deterrenf'.

In 1962 statistics were compiled and a report was prepared at the instance Qf 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 avail total abolition of the death able appeared to confinn that neither penalty nor its partial abolition in regard to certain crimes only had

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[1979] 3 s.c.R.

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 Punish ment 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 unlikeli- hood 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 de ciding 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 It is a tragic irony that Prime Minister protracted imprisonment''. 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 resnlts 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(') 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 sup porting 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 than

the death penalty is a greater deterrent ·to murder 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.(') The pattern was most eratic but it can be boldly asserted that the fignres 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 inflict the complicating factors is the discretion given to 1udges

to

-·-------· (I) 49 L. Edn. 2nd 859. (2) Article in the Hindu, Madras, published in 1973.

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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)

365

·death penalty or imprisonment for life (about which more later) which A {!estroys the utility of any study based on statistics. The most reason- able 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 ls unproven.

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"The death penalty, rather than deterring murder, actually deters the proper administration of criminal justice".(') There is the abso lute finality and irrevocability of the death penalty. Human justice is no proof can never be infallible. The most conscientious judge 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 rehabili tation 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 It is the 'fifth column' in the adminis programme to reformation'. tration 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 pres- sure 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 underprivi ledged. In the words of Marshall, J., "Their impotence leaves them

(1) Frank-cYConnor quoted in 'Ready for the Defence' by Garbus.

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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 atten Ignorance is perpe tion to the problem and concern might develop. tuated and apathy soon becomes its ma.te and we have today's situa tion''. 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 experi mental 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 here . ditary peers of England, united in their determination to use their medieval powers to retain a medieval institution",(') 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 conforn1s to the current standards of 'decency'. Can there be any higher basic human right than the right to life and can anything bt; 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 to extinguishment of human life by the State is uniquely degrading human dignity ..... death for whatever crime and under all circums tances 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 loot the right to have rights''. Senor Tejera of Uruguay in the debate in the United Nations said "A death penalty is an anachronism iu 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 pre~ gress and to protect man from the prejudices and barbarity surviving from the past''.

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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 La'.in 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 tbe States in the United States of America, death sentence has been abolished .

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It is in the light of the r\ght to life as a basic concept of human B

dignity, in the context of tbe unproven efficacy of the death penalty as a deterrent and in tbe background of modern theories of criminology based upon progress in the fields of science, medicine, psychiatry ~n<l sociology and in the setting of the march of the movement for aboli- tion of Capital Punishment, that Judges in India are required to decide which sentence to impose in a case of murder, death or imprisonment 0 for life?

Judges in India have the discretion to impose or not to impose the It is one of the great burdens which Judges in this death penalty. country have to carry. In the past, the reasons which weighed in the matter of '!warding or not awarding the sentence of death varied widely and tbere was certainly room for complaint that there was an unequal application of the Jaw in the matter of imposition of the sen tence 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 tbe 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 mnrder was not for any personal motive but was in p.nrsuit of some mistaken ideo- logy was the reason which weighed with the judges for substituting the sentence of life imprisonment for the sentence of death. Within a few montbs tbis 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 cversince Ediga Annamma to point the path along which In the latest pronouncement of this Conrt in Rajendra to proceed. Prasad v. State of Utlar 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-imprisomnent. I express my agreement witb tbe elucidation of tbe principles in Rajendra Prasad v. State ofUttar Pradesh. (supra)

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Section 302 Indian Penal Code prescribes deatb or life-imprison- H

ment as the penalty for mnrder. While so, the Code of Criminal Pro cedure instructs the Conrt as to its application. The changes which 4-253 SCI /79

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the Code ha~ undergone in the last 25 years clearly indicate that Parliament i~ 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 sen tence 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 aggra- In the Code of Criminal Procedure of 1973, vating circumstances. there is a further swing towards life imprisonment Section 354(3) cf the new Code now provide8 :

"When the conviction is for an offence punishable with death or, in the alternative imprisonment for life or imprison- mcnt for a t_\lrm of years, the judgment shall ~tale 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-imprison ment 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 discover ing 'Special reasons'.

Let us first examine if the Code of Criminal Procedure gives any

clue leading to the discovery of 'Special reasons'.

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reasons'.

Apart from Section 354(3) there is another provision in the Code is which also uses the significant expression 'special Section 361. Section 360 of the 1973 code re-enacts, in substance, Section 562 of the 1898 Code and provides for the release on proba tion ot good conduct or after admonition any person not under twenty one years ot age who is convicted of an offence punishable with tine only or with imprisonment for a term ot 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 nnder Section 360 or under the provisions of the Pro bation 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 provi>ion 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 BJ do so and, to state "special reasons" if it does not do so. In the con- text of Section 360, the "special reasons" contemplated by Section 361 mnst 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 rehabilitation of indication by the Legislature that reformation and foremost offenders, and not mere deterrence, are now among the objects of the administration of criminal Justice in our country. Sec- tion 361 and Section 354i(3) have both entered the Statute Book at the same tin1e and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the perso~na!ity of the offender a. revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform !llust necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to thege factors.

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Criminal justice is not a computer machine.

It deals with ~omplex 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 neighbourhOQd; upbringing, school, friends, associates, even ca~ual acquaintenances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circums tances and the calamities r$Jsulting therefrom, the success and failure of one's undertakings, the affairs of the heart, ambitions and frustra tions, 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 different-

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Judge has to balance the: Pl!tsonality of the offender with the circums tance the situations and the reaction8 and choose the appropriate

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sentence to be imposed. A judge must try to answer a myried ques tions 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 eco nomic 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 ex· claim 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 any 'Special reasons'. I have said enough and perhaps more than what I intended, to indi· the question. cate what according to me should be the approach to Whatever I have said is but to supplement what my brother Krishna Iyer has already said in Rajendra Prasad v. State of U.P. (')

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Coming to the case before us, our brothers J aswant Singh and Kallas am, 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 learned Additional Sessions' Judge, Alipore, for the murder of his son and sentenced to death. The High Court of Calcutta confirmed the convic tion 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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(1) (1979] 3 S.C.R. 18.

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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 imrisomnent imposed on him for the murder of his wife had no soberii)g 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 the in imposing the sentence of death without even a reference reason why the appellant co=itted 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 retribu tion. 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 obeyini: 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 brood-· ing over the suspected iI\fidelity 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 princi ples enunciated in Rajendra Prasad v. State of U.P.,(') and in the light of what we have said earlier, we do not think that there are anv 'special reasons' justifying the imposition of the death penalty. W~ accordingly allow the appeal as regards sentence, set aside the sentence of death and impooe in its place the sentence of life imprisonment.

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KRISHNA IYER, J.-I have had the advantage of reading the Judg · I wholly ment of my learned brother, Shri Justice Chinnappa Reddy. agree with his reasoning and conclusion. Indeed, the ratio of Rajendra Prasad e~c. v. State of Uttar Prade•h etc.('), if applied to the present case, as 1t must be, leads to the conclusion that death sentence cannot be awarded in the circumstances of the present case. Coun5el for the State, if I recollect aright, did state that in view of the criteria laid

{1) [1979] 3 S.C.R. 78.

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A down in Rajendra Prasad's case the State did not propose to file any written submissions against commutation to life I concur with my learned brother and direct that the appeal, confined to sentence, be allowed and the alternative of life imprisonmer.t im posed.

imprisonment.

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Appeal allowed

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(l) (1979]3 S.C.R. 78.