Vol(1) And Vol(3)

[Cites 165, Cited by 0]
Law Commission Report

Vol(1) And Vol(3)

 

LAW COMMISSION OF INDIA

THIRTY-FIFTH REPORT

VOLUME I--III

(CAPITAL PUNISHMENT)

SEPTEMBER, 1967

'GOVERNMENT OF INDIA 0 MINISTRY OF LAW



CHAIRMAN,
Law Commission,

5, Jon Bagh, New Delhi-3.
December 19, I967.
Shxi P. Govinda Menon, A
Minister of Law.

New Delhi.

MY DEAR MINISTER,

I have great pleasure in forwarding herewith
the Thirty-ﬁifth Report of the Law Commission on
Capital Punishment.

2. The circumstances in which the subject was
taken up by the Law Commission for consideration
are stated in the ﬁrst few' paragra hs of the Report.
After the subject was taken up i r consideration, a

study of the voluminous material on the subject was
undertaken. In the meantime, the Commission was

asked to consider mgentﬁi; the qtiésﬁon of division of
murder into categories. A ,
the 42nd meeting of the Commission held on 17th, 18th'
and 19th December, 1962. and a! note recording the
views of the Commission. regarding the proposal to
divide murder into two categories was sent (under the
signature of the then Secretary to.,the Commission) in
December, 1962. .

3. Study of the main subject of capital punishment
was also proceeded with. A questionnaire on the sub-
ject was prepared. The Questionnaire was discussed
at" the Corr!_'nission's 44th meeting held on the 2nd and
3rd March, 1963 and approved with certain modiﬁca-
tions. Copies of the Questionnaire (as approved by
the Commission) were sent to State Governments, High
Courts, Members of Parliament, Members of State
Legislatures, High Court Bar Associations, District
Bar Associations, District and Sessions Judges, Zilla
Panchayats and other interested persons and bodies.
A Press Communique was also issued, informing mem-
bers of the public about the Questionnaire and invit-
ing them to express their-..view in the matter. --

e matter was considered at



(ii)

(At the 5rst meeting of the Commission held on the
4th November, 1963. it was decided that evidence may
be taken on the subject. But, having regard to the
voluminous replies received to the Questionnaire and
also on a perusal of the studies made in the Commis-

sion, it has been considered unnecessary to take oral
evidence).

4. A draft Report on the subject was prepared and
circulated to the Members.

The studies made on the subject and the replies
received to the Questionnaire (as tabulated) were also
circulated to the Members. At the 72nd meeting of
the Commission. a programme for the consideration
of the circulated materials was chalked out;

The circulated materials included a discussion of
the existing position, consideration of the arguments
for abolition or retention as formulated in various quar~
ters, including academic literature, precis of debates
in Parliament, Reports of Cornrnittees or Commissions
appointed in various countries, historical. comparative
and statistical studies. as well as tabulations of replies
to the Questionnaire, extending over thousands of
pages.

5. The above mentioned materials, including the
draft Report, were considered at the following meet-
ings of the Commission, and certain additions, dele-
tions, and modiﬁcations were directed to be made :---

73rd meeting .. 9th to rrth February, I966.
74th meeting .. 22nd to 26th March, 1966.

75th meeting .. rrth, Iath, 14th, rsth and
16th April, 1966'.

76th meeting . . 5th to 7th and gth and 10th
May, I966.

77th meeting .. 8th to 12th August, 1966.
78th meeting .. 5th to 7th September, 1966.

At the 78th meeting already mentioned above. it
was further decided (on the 7th September, I965), that
the draft Report may be revised in accordance with
the discussions that had been held up to that date.



(iii)

6. Accordingly, the draft Report was revised. The
revised draft was taken up, page by page, for consi-
deration at the 86th meeting of the Commission on
18th, Igth, 20th, 22nd and 23rd May, 1967 and ap-
proved with modiﬁcations. The summary of conclu-
sions (which also had been circulated to the Members)
was approved with modiﬁcations at the same meeting
on 23rd May, 1967. Further, at -the samemeeting, on
the 18th May, 1967, it was decided that important
points made in replies to the Questionnaire which could
not be dealt with in the draft Report owing to their
late receipt, etc., may be dealt with, so far as prac-
ticable, while further revising the draft Report.

(Copies or tabulations of these later replies were
separately circulated to the Members).

7. The draft Report was further revised, in accord-

ance with the decisions taken at the 86th meeting re-
ferred to above.

8. In the study of materials regarding this subject
and in drawing up the Report I have to acknowledge
the help the Commission received from its Secretary
who had to devote a great deal of time and energy in
collecting the materials and then putting them in
proper shape for discussion by the Commission and

ﬁnally in carrying out all the suggestions and correc-
tions.

Yours sincerely,

J. L. KAPUR.



REPORT ON CAPITAL PUNISHMENT

EXPLANATION OF ABBREVIATION

R.C. Report--Report of the Royal Commission on Capital
Punishment (1949-1953), Cmd. 8932

(iv)



REPORT ON CAPITAL PUNISHMENT
CONTENTS

PAnAcnApH ' SUBJECT-MArrm PAGE

CHAPTER 1
PRELIMIN§RY
Topic Nmvinitn 1
Reference to the Law 

-1-: Reference to the Law Commission . . . 4 . . I

Topic Nmvinm 2
Why subject taken upﬂpizrately
3 Why the subject taken up separetely . . . . 1 2

Topic Numaizn 3
Irtcrim Note
4-5 Interim Note, as to ctegorics of murders . . . 2-3

Topic Nuunm 4
Procedure followed
6-7 Procedure followed . . . . . . . 3

Topic NUMBER 5
Materials stuﬁed '
:8-'II Matcfials 3tudied o 0 o o D 0 o 0 3'4

CHAPTER II
MOVE FOR ABOIIITION
TOPIC NUMBER 6
History of the abolition move in Inﬁa
12-18 History of the abolition move in India . . . - 4-7

  



(Vi)

PARAGRAPH SUBJECT-MATTER PAGE

TOPIC NUMBER 7

Hittmy of abolition move in England

19 History _of the movement for abolition of capital punish- 7
ment in England . . . . . . .
20 Committee of 1750 . . . . . . 8.
21 Committee of 1770 . 8
22 Bentham . . . . . . . . 8
23 Romilly 8-9,
24 1819 Committee . . . . . . . . 9
25 Bright. Ewart . . . 9
26 1833 Commission . . . 9
27 1864-1866 Commission . 9-10

28--29 Public executions abolished. Bills for abolition. I886

Committee . . . 1o

0

3o~--31 1930 Committee and 1938 Resolution . . . . 10-12

32-35 English Act of 1965 . . .

TOPIC NUMBER 8

to

Abolition move {n United States of America and Central and
South America
36-49 Abolition move in U.S.A. . . . . . . I4-I7

5o--51 Central and South America and Mexico

TOPIC NUMBER 9
Capital Punz'5hment--Abolition in Europe, Australia and New Zealand
52-53 Capital Punishment----Abolition in Europe and Australia . 17--- 19
54-56 Capital Punishment in Russia . . 19-19
57 Abolition move in New Zealand . . . . . 2o
TOPIC NUMBER 10
Abolition move in Canada

58-59 Abolition move in Canada . . . . . . 20-24

TOPIC NUMBER 11
Abolition in Asia
6o--63 Abolition in Asia . i~,:__; \ . . . . . . 24

1



(Vii)

PARAGRAPH SUBJECT-MATTER PAGE

Tomc NUMBER 12
Abolition move 6: United Nation:
64-67 Abolition in United Nations . . . . . . 25-26

CHAPTER III
EXISTING LAW
TOPIC NUMBER :3

Existing provision: of the Indian Penal Code regarding Capital
Oﬁences

68 Existing provisions of the Indian Pmal Code regarding

Capital Offences . . . . . . 26

69 Sections quoted . . . . . . . . 27

70 Section 299, Section 3oo . . . . . . 27-29

71 Distinction between murder and culpable homicide . 29-31

72-73 Some fundamental propositions . . . . . 3!
74-76 Stages of approach in culpable homicide and mur-

der . . . . . . . . . . 31-34

77-80 Principle behind existing capital offences . . . 34-35

81-84 Bengal Amendment relating to section 307 . . . 35-37

85-86 Dacoity with murder . . . . . . . 37-38

Tomc NUMBER 14

Vicarious or constructive liability

87-90 Vicarious or constructive liability . . . . . 38-39
91-106 Section 34, Indian Penal Code . . . , , 39_45
IO7----II4 Section 149, Indian Penal Code . . . . . 46-50
115-121 Section 396-"in the Commission" . . . . 5o--52
CHAPTER rv
ABOLITION OR RETENTION
Topic NUMBER 15
Major question of abolition or retention
I22--125_ Major question of retentionblinked up yvith objects of capi-

tafpunishment . ' . . . . . . . ' 53

- --- ... _.. .i......_..

...u..



(viii )

PARAGRAPH SUBJECT-MATTER PAGE
Tome NUMBER 16
Arguments for retention
:26 Argument for retention 53
127 Deterrent eﬂect . . . . . . 54
123 Crimes of violence . . . . . . . 54
:29 Elimination of the criminal . . . . . . 54
130 Realism in the prevention of crime 54
131 Risk to oﬂicers . . . . . . . . 55
132 Possibility of repeated murder . . . . . 55
:33 Conditions in India 55
134-136 Reprobation by society . . . . . . . 55
137-138 Public opinion 55-56
:39 Prison administration 56
I40 Saving of funds . . . . . . . 55
141-142 P1-oportionate to cxime . . . . 56
I43 Avoidance of lynching . . . 56-57
144 Atonement . . . . ~ . . . . 57
:45 Death sentence more humane . . . . 57
145 No miscarriage of justice . . . . . 57
147 Discretion of court . . . . . . . 57
148--I49 No substitute . . . . . . . . 57-53
150 Time not yet ripe 58
151 Burden on abolitionists 58
TOPIC NUMBER 17
Arguments for abolition
152-153 Arguments for abolition 58
I General
154--155 General . . . . . . . . . 58-59
11. Immoral

Immoral . . . . . . . 59

:56-157



(iii)

PARAGRAPH SUBJECT-MA'l'1'BR PAGE
III. Inhuman
158-159 Inhuman . . . . . . . 59-6o
IV. Nan-violence
160-161 Non-violence . . . . . . 60
V. Imvoaabh
162-167 Irrcvocablc . . . . , . . . 60-61
168 Man not free . ' . . . . . 61
VL, Morbid
169 Morbid . . . . . . . 62
170 Hanging a mockery . . . . . 62
171 Brutalising eﬁect . . . . . 62
VII. Urjust
172 Injury to family . . . . . . 62
173 Unequal application . . . . . 62
174-176 Justice not possible . . . . . 62-63
VIII. Deterrent and other object: not aclciwad
A.--Deterrent eﬁiect not achieved
177 Deterrent eﬁect not established . . . 63
173 Not a unique deterrent . . . . 63
179-180 Crime curve and sentence not inter-related . 63-64
181 Examples of Indian States . . . . 64
182 Examples of other countries . . . 64
183 Experience in India . ~ . 65
184--185 Crimes committed in excitement 65
186 Infrequency of application . . . . 55
187 Secrecy of execution . . . . . 66
B.--Retributive object criticised
188--19o Criticism of retribution . . . . 55

.4,



(x)

PARAGRAPH SUBJECT-MATTER PAGE
IX. Counter--argument: for abolition
(in reply to retentionisz argumerm)

r9I----r93 Certainty of punishment better than severity 66-67
194-195 Sensationalism 67

196 Better living conditions in other countries 67
197-199 Public opinion 67-68

zoo Opinion of Judges and Police Oﬁicers not conclusive 68
201-202 Prison Administration 68-69

203 Sympathy for victim no justiﬁcation 69

X. Expat-imam of abolition worthmaking
204 Experiment should be made . , , 69
XI. Substitute possible

205-206 Reformation possible . . . . 69
207-209 No risk in abolition . 69-70
2ro~2II Death penalty a lazy answer 70

2x2 Other methods should be tried 70

XII. Onus
2:3 Onus 70
TOPIC NUMBER 18
Abolition or retentz'orz--RepIie.< to Question No. 1
214----245 Question I 70-75
245__z51 Arguments for abolition . . . 76-84
(advanced in the replies set out)
TOPIC NUMBER 19
Arguments for abolition considered

262 Arguments to be counter-balanced against each other 84
2g3__264 Conclusion regarding abolition or retention 84-85

265 Arguments for abolition considered in detail 85

266-275

TOPIC NUMBER 20
Irrevocability

Irrevocability



(xi)

PARAGRAPH Sohjncr-Mlcrrzx has

diAP'l'ER V
OBJECT S OF CAPITAL PUNISHMENT
TOIEIQNUMBE 3:
Object: of Capital Puaixhillent
276 Objects of Capital Punishment . . .

TOPIC Nummn 22
Obfect: of Capital Puni:hment--R¢plie: to Question 2 (a)
277-293 Question 2 (a) . . . . . . . .

Tome NUMBER 23

Conclusion regarding ob;'ecr--Dem-rem object strongest jum'ﬁ-
 object Jlaw relevant

294 Aspens of punishment as a deterrent . . . .
295-299 Deterrent object important . I . . . . .
3oo--3oz ' Cnicl murders ; L . . . . .

TOPIC NUMBER 24
'Deterrent :ﬂ"eet--D¢tailed discussion

I. Deterrent eﬁect-- ' of countries where capital
punishment aboli ed or abolished and restored.

303 Experience of other countries  it has. been abolished,

or abolished and restored . . . . . . I04
304 Preliminary observations . . . . . . I04
305 Abolition without restoration . . . . . . 104

II. Reasons for restoration in foreign countries
306-308 Reasons for restoration in foreign countries . . . 104-106

III. Comparison of ﬁgu-es of abolition and non-abolition
States for the same peri

309-310 Comparison of ﬁgures 'of abolition and non-abolition States
for the same period . . . . . . . I07



(xii)

PARAGRAPH SUBJECT-MATTER PAGE
IV.--Speeiﬁc illustrations of deterrent effect
311-313 Speciﬁc illustrations of deterrent effect . . . - 108
V. Special position in India
314-316 special position in India 108-110
VI. Punishment not the only deterrent
317 Punishment not the only deterrent . . . 11o--I11
VII. Deterrent use unjustiﬁed--W1-ong to punish A to deter B
318----322 Deterrent use unjustiﬁed--Wrong to punish A to deter B . 111-112
VIII. Other arguments regarding deterrent eﬂect
323 Argument for and against deterrent effect . . 112-113
IX. Some important points
324 Some important points . . . . 113
X. The basic argument
325-326 The basic argument . . . . . 113-114
XI. Discussion in other Reports
327-331 Discussion in other Reports . . . . 114-117
XII. Abolition in Indian States
332 Abolition in Indian States . . . . . 117-118
XIII. Result of U. N. Survey as to deterrent effect
333 Result of U. N. Survey as to deterrent eﬂ'ect . 118-119
TOPIC NUMBER 25
Deterrent effect how far achie2_1ed--Replies to Question 2 (b)
summamed
334-369 Replies to Question 2 (17) 120-131
TOPIC NUMBER 26
Conclusion regarding deterrent eﬂect

370-372 Conclusion regarding deterrent effect 131--133



REPORT ON CAPITAL PUNISHMENT
CONTENTS

Volume II '

PARAGRAPH SUIIECI'-MATIER Pace

CHAPTER V!
DETAILED ('DNSIDERATION OF OFFQICES
TOPIC Numam 27
Repies to Question No. 3(a)

373-335 Question 3(a) . . . . . . . . . 134-137
335 Section I2I--Waging war against the Government . '
337 Section 132----Abetmcnt of mutiny by a member of the Armed

Forces . . . . . . . . . I38"
338 Section I94, second paragt-aph--Falae evidence leading to execu-

tion of innocent persons . . . . . . 139
339-390 Section 3oz--Murder . . . . . . . .1 I39
391 Section 3o3--Murdcr by a life convict. . . . . . 139' _
392 Section 3o5--Abetment of suicide by child or insane per-

son . . . . . . . . . . . 140-
393 Section 3o7----Attempt to murder by life convict . . . 140-14:
394 Section 396---Dacoity with murder . . . . . .' I4r

TOPIC NUMBER 28
Retention or d>ol:'t:'on for each o_ﬁ'ence considered
395-403 Retention or abolition for each otfence considered . . . 141-144

404-412 Periury in other countries . . . . . . . I44-I45

TOPIC NUMBER 29 ,
Whether other aﬁ"enccs to be caps'tal---Replies to Question 3(b)

413 Question 3(b) . . . . . . . . . 146
414-428 Adulteration . . . . . . . . . . 146-148
429 Army . . . . . . . . . . . 149

430 Arson . . . . . . . . , . T 149

(xiii)



(xiv)

PARAGRAPH

SUBJECT-MATTER PAGE
431 Black marketing 149
432-435 Corruption 149-150
436-439 Espionage 150-1 51
440-444 Kidnapping 151-152
445--446 Homicide by negligence . 152
447-449 Rape 152-153
450-453 Sabotage 153
454-456 Secession I54
457 Smuggling I55
453 Treason I55
459 Untouchability 155
460-461 Other Offences 156
Top1c NUMBER 30
Other offences whether to be made capital
462 Other offences whether to be made capital 156
.463 Adulteration . 156
464 Armed Forces . . . . . . . . 156-157
465 Arson 157
466 Arson under English Law 157
467-471 Arson by explosives 157-159
472 Black marketing 159
7473-474 Espionage 159-160
475 Espionage in other countries 160
476 Hoarding and proﬁteering 160
477-480 Kidnapping and abduction 160-162
481-501 Negligence----homicide by 162-169
502 English law relating to homicide by negligence. Murder . 169
503 Manslaughter 169
5o4----51o Malice afore-thought 169-171
511-518 View of Russell and Stephens 171-173



(xv)

PARAGRAPH SUBJECT-MATTER PAGE
519-520 Causing death by reckless or dangerous driving I73-I74
521 Proﬁteering . . . . . . . . 174
522-527 Rape . . . . . . . . . . . I74---I75
528 Sabotage . . . . . . . . I76
529 Secession . . . . . . . 177
530 Smuggling . . . . . . . . . 177
531 Train robbery and wrecking . 177
532-533 Treason . . . . . . . . . 177
534-535 English law relating to treason . . . . . 177-178
536-538 Treachery . . . . . . . . . 178
539--540 Recommendation regarding treason . . I79
CHAPTER VII
DISCRETION OF THE COURT
Tqrlc Nuupy 310:)
Replies to Question No. 4
541-578 Question 4 . . . . . . . . . 179-187
Touc Numnut 31 (b)
New discrenbn exercised
579 Cue~---law . . . . . . . . 187
Tomc Numnn 31 (c)
Recommendation 1'-egarding liscreubn of the Court
580-585 Recommendation regarding discretion of the Court . . ' 187-139
Tomc Nummzn 31 (d)
Lesser sentence for offence: under sections 3:3; and '303
_c,§6----39I Laser sentence for offences undei-'sections 302 and 303 189-190
TOPIC Nvzvuazm 32 (a)
Considerations guiding the discretion of the Court
592 Cozlsiderations guiding the discretion of the Court . 190
.._._.. J_

2---122 MofLaw.



(Xvi)

PARAGRAPH SUB]'ECT--MA'I'TER PAGE
TOPIC NUMBER 32 (b)
Replies to Question No. 5
593-628 Question 5 191-201-
TOPIC NUMBER 32 (c)
Conclusion regarding codiﬁcation of considerations
629-531 Conclusion regarding cojiﬁcation of consideration 201-292
TOPIC NUMBER 33
Apprehension about discretion
632-534 Apprehension about discretion . . . . . . 202
CHAPTER VIII
CATEGORIES OF MURDERS
Tomc NUMBER 34 (a)
Dz'tr£sz'or: of murder:-Introalucrmy
635 Division of murders-Introductory . . . . . . 203'
TOPIC NUMBER 34 (b)
Categories of murder-Ge:1eIrgé7discussion and Homicide Act,
636 Introductory 203
637 1866 Commission 203
638 Subszquent Bills. Criminal Iustice Bill . . . . 293
639 Criminal Justice Bill 1948 204
640-541 Position in other countries-France 204-205
642 Position in other countries-U.S.A. 205
643 Canada. . . . . . . . - . 205
644-645 Other Countries-Australia 205-206
646 Royal Commission . 2o6-207
647-648 The Homicide Act 207-208
649 Criticism of the Provision in the Homicide Act 209
650-652 Position in Canada 209-211
653-662 Aggravated murder 212-215



(xvii)

PARAGRAPH SUBJECT-MA'l'1'ER PAGE

TOPIC NUMBER 34 (c)
Replies to Question Na. 6 (a) (b)
663-699 Replies to Question 6 (a) (b) . . . . . . 215'-224

TOPIC NUMBER 34 (d)
Categories suggested in the various replies considered.

700-703 Categories suggested in various replies considered a . . 224-226

TOPIC Numm 35
Ctmclusion as to categories of murders

704-705 Conclusion as to categories of murders . . . . . 226

TOPIC Ntmnnn 36
Premeditazion

706-716 Premeditation . . . . . . . . . 2z6--23o

Tome Numnim 37
Scheme 1' H the Burmese Code

717-721 Scheme in the Burmese Code . . . . . . 23°-'33!

Tome NUMBER 38
Intent to kill

722-725 Intent to kill . _. . . . . , . . 231--z34
CHAPTER IX

NORMAL SENTENCE
Tome NUMBER 39 ((1)

Replies wQuest£o" No. 7

726 Question 7 . . . . . . . . . 234
72.7----76I Replies to Question 7 (a) . . . . . . . 234-241
762-789 Aggravating circumstances . . . . . . . 241-246

Topxc Nummm 39 (b1
Whether Normal sentence should be imprisamnent for Izfe

790 Whether normal sentence should be imprisonment for life 246

. I
4,
l



(xviii)

PARAGRAPH

SUBJECT-MATTER PAGE
TOPIC NUMBER 40
Whether normal sentence should be death
79:-799 Whether normal sentence should be death . . . . 246-248
CHAPTERX
REASONS FOR SENTENCE
TOPIC Numam 41
Replies to Question Na. 8
8oo Question 8 . . . . . . . . . 249
801-819 Replica to Question 8 . . . 249--254
TOHC NUMBER 42
Conclusion regarding necessity of provision requiring reason: for
lesser xentence
820-822 Provision requiring court to state reasons recommended. Re-
commendntion . . . . . . 254-255



C  XI
EXEMPTION IN PARTICULAR CASES
Toprc NUMBER 43
Question Number 9

PARAGRAPH

SU8JE(.'r-MATTER PAGE

823 Question 9 256
824-836 Replies to question 9 256-258
837-851 Children . 258-260
852-856 Pregnant women 260-261
857-870 Women generally . . 261-264
871 Old persons . 264
872 Diminished responsibility . . 264-265
873 Other categories . . 265

TOPIC Numamz 4-4

Exempnon on the ground of young age

874-885 Exemption on the ground of young age 266-269
851.6 Recommendation regarding age 269
887 Recommendation . . . 269

TOPIC NUMBER 45

Exemption to women generally

888-890 Exemption to women generally 270

TOPIC NUMBER 46

Exemption for pregnant women

891-394 Exemption for pregnant women . . 27o-272

TOPIC NUMBER 47

Infanticide

895-898 Infanticide by women 272-275

(xi!)



(xx)

PARAGRAPH %UBJECT-MATTER PAGE

CHAPTER XII
DIMINISHED RESPONSIBILITY

TOPIC NUMBER 48

899-904 Diminished responsibility . . . . . . 275-277
905-907 Scot Law . . . . . . . . . 277
908-909 Irresistible impulse . . . . . . . 278-279
910 Illustrative Cases . . . . . . . 279-280
911 Negative illustrations . . . . . . . 280
912-924 Burden of proof of diminished responsibility . . 280-285

Tome NUMBER 49
Other exemptions considered

925 Other exemptions suggested . . . . . . 285

CHAPTER XIII
SOME PROCEDURAL QUESTIONS
TOPIC NUMBER 50(A)
Replies to question 10
926-956 Question 10, and replies thereto . . . . . 285-291

TOPIC NUMBER 50(3)
Scope of appeal in criminal cases where a sentetnce of death is in issue

957-959 Scope of appeal in criminal cases where a sentence of death
is in issue;

Sentence of death by High Court . . . . . 291
Appeal from sentence of High Court

960 Appellate jurisdiction of Supreme Court in regard to cri-
minal matters . . . . . . . .
96! Appeal from Court of Session . . . . .
962 Conﬁrmation
963 Revision
964 Appeals from acquittal . . . . .
965-974 Appeals from conviction . . . . . . 295-298
975 Cases not appealable at present without certiﬁcate,
etc. , . . . . . . . 298-299



(xxi}

1>AaAGnA1>H Sunjncr-Mann PAGE

976 Whether change required 299
977 Recomrnenation in Fourteenth Report . . . 299-300
978 Developments during last 10 years . . - . 3100-30:
979 Views of Canadian Committee . . . . . J 301
980 Canadien provision . . . . . . . 301-302
931 Position in other countries . . . . . . 30:
932-989 Question of enlargement considered . . . . 302-304

Tome Numm 51

Plea of guilty

990-996 Plea of guilty 304-307

Toprc NUMBER 52

Medical Exantinatian of the accused

997-1000 Medical examination of the accused . . . 307-308

<JlLAl'rIﬂR JIFV

BAIHRCIY
Toma Nvmnaz 53(A)
Existing powers of cmhtmctation

1001 Existing powers of cormnutation . ' . . . . 309-310

TOPIC NUMBER 54

Replies to question 11(a)

1002-1009 Replies to question u(a) . . . . . 310-312
1010-1011 Power . . . . . . . . . . 312
Tomc NUMBER 55
Dual prerogative
1012-1019 Dual power of commutation . 313-315
CONCLU$0N
'i'oP1c NUMBER 56
Need for retaining the power
1020 Need for retaining the power 315
1021--- 1024 Essential nature of the prerogative of mercy . 315~--317

xozs

Recommendation for retention of the power . . .

F317--318
1



(xxii)

PARAGRAPH

SUBJECT-MATrBR PAGE
TOPXC NUMBER 57 (A)
Principles and procedure for exercise of prerogative of mercy
1026 Question 11 (I7) 318
1027-1050 Principles-replies regarding 318-323
1051-1069 Procedure---rep1ies regarding . 323-327
To1>1c NUMBER 57 (B)
Principles for mercy-Whether codiﬁcation desirable
1070 Principles for mercy-Whether codiﬁcation desirable 327
1071-1072 Practice in England 327-329
1073 Practice in Canada . . . . 329
1074 Practice in Ceylon 329
1075 Considerations that may be taken into account 329
1076 Rigid rules not desirable 329-330
1077-1079 Questions about exercise of prerogative 330
TOPIC NUMBER 57 (c)
Procedure for exercise of mercy-whether any provisions needed

I080 Procedure for exercise of mercy-whether any provisions

needed . . . . . . . 331
1081-1085 Consultation with the Supreme Court or High Court 331-332
1086-1089 Advisory Board 332-334
1090 Publication of reasons . 334-335
109 1 Recommendation of the court whether to be a pre-requisite . 335
1092 Consultation with the Attorney-General . . . . 335-336

CHAPTER XV
EXECUTION OF SENTENCES
TOPIC NUMBER 58 (A)
Method of execution of death sentence

1093-1100 Method of execution of death sentence . 336-339

TOPIC NUMBER 58 (13)
Replies to question 12

1101-1148 Method of execution

339-345



(xxiii)

Pnxaoum SUB]ECI'-MATTER PAGE

TOPIC NUMBER 58 (c)
Conclusion as to method of execution

1149-1151 Conclusion as to method of execution . . . . 345-346-

Toplc NUMBER 58 (in)
Execution in public, and publicity to be given to execution

1152-1153 Execution in public, and publicity to be given to execu-

tion . . . . 346-347
CHAPTER XVI
MISCELLANEOUS
TOPIC NUMBER 59
Other points made in the replies to Questionnaire
1154 General suggestions made in the replies. . . . 347
1155-1158 Restitution , . . . . . . . . 347-348
TOPIC NUMBER 60
[mental to be allowed betw_een death serztenre and
execution
1159-1162 Interval to be allowed between death sentence and execu-
tion . . . . . . . . . 348----349
To1>1c NUMBER 61 V
Conduct of Prisoners after feleaxe and rules regarding
T€m1SS107l
1163 Conduct of prisoners after release . . . . 349-350
1164-1165 Rules regarding remission . . . . . . 35o
TOPIC Nuunut 62
Legal aid 10 persons comernad in capizal cases
1 166 Legal am [0 person: concerned in capital cases . . 35c-351
1167-1174 Position in America . . . 351--353
1175 Recommendation . . . 353-354

SUMMARY OF MAIN CONCLUSIONS AND
RECOMMENDATIONS



REPORT ON CAPITAL PUNISHMENT
CHAPTER I
PRELIMINARY
TOPIC NU1\IB'llR 1
Reference to the Law Commission

1. The subject of capital punishment has come to be

Reference to

considered by the Law Commission in the following cir- the Lgw
cumstances----

was forwarded to the Law Commission. That

Shri Raghunath Singh, Member, Lok Sabha, had
moved a resolution in the Lok Sabha for the abolition
of capital punishment'. In the course of the debate
on the resolution, suggestions were made that a com-
mission or committee should be appointed to go into the
question". Shri Harish Chandra Mathur moved an
amendment to the effect that the question of abolition
of capital punishment be referred to the Law Com-
mission". The Minister % State in the Ministry of
Home Aﬁairs (the late hri B. N, Datar) gave an
assurance that a copy of the discussions that had taken
place in the House would be forwarded to the Law
Commission "that is now seized of the question of
examining the Code of Criminal Procedure and the
Indian Penal Code with a view to' consider as to whe-
ther changes are necessary therein". He was conﬁdent
that this assurance would satisfy those honourable
members, who either desired that there ought be a
commission or a committee or who desired speciﬁcally
that the question should be referred to the Law Com-
mission. In view of this assurance, the resolution and
the amendments were withdrawn' by leave'.

2. Accordingly, a copy of the debates in the Lok Sabha
is the

genesis of this Report".

'I
2
3
4
S
6

' Hi

Lok Sabha ebatcs, 1962, Cola. 307 and 308 (2Ist April, 1962).
Lok Sabha Debates, 1962, Cols. 321 and 322'(21st April, I962).

Lok Sabha Debates, 1962,0013. 323, 334 and 335 (213: April, 196 2).

Lok Sabha Debates, 1962, Col. 354, (zxst April, 1962).
Lok Sabha Debates, 1962, co1s.§64 and 3§s;(2m April, 1952).

There had _been discussions on 'he subi , gqu-lier also. See under
story of abolition move in India , puragr is 12-18 iqfra_

Commission.



Why the
subject taken
up separate-
ly.

Interim
Note, as to
categories of
murders.

2

TOPIC NU'M'BER 2
Why subject taken up separately

3. The Law Commission considered it desirable to take
up this subject separately from the revision of the general
criminal law, in View of the importance of the subject, the
voluminous nature of the materials to be considered, and
the large number of questions of detail to be examined'.
It may be noted, that the matter has, in recent years, been
repeatedly debated in Parliament in some form or other,
and its consideration, therefore, seemed to be some-
what urgent as compared with other topics arising under
the Code of Criminal Procedure, etc. In other countries
also, this subject has been treated as one for separate and
full-ﬂedged study.

TOPIC NUMEBER 3
Interim Note

4. While the subject was under consideration, certain
proposals for the division of murder and other capital
offences into categories were forwarded to the Law Com-
mission for consideration.

It is not necessary, to discuss the details of the scheme
envisaged in those proposals. The opinion of the Law
Commission was urgently sought on those proposals, and
the Law Commission sent to the Ministry an Interim
Note" on those proposals.

5. On the materials available at that time, and as then
advised, the Commission could not agree with those pro-
posals". The main considerations that weighed with the
Commission were, (i) the absence of a general principle
at the root of the scheme, (ii) the need for caution before
following any law that might have been enacted elsewhere,
,ﬁi) the difﬁculty of the categorisation of murders, (iv) the
presence of many anomalous features in the actual scheme
in its details, (V) the absence of any strong necessity for
disturbing the existing law in India, under which the court
already possesses the discretion to award the sentence of
death or the lesser punishment of imprisonment for life,
and (vi) doubts as to whether the proposals revealed a
reasonable classification, which could stand the test of
article 14 of the Constitution.

I See the questionnaire issued by the Commission.

2 The note was sent, under the signature of the Secretary to the Law
Commission, to the Ministry of Home Affairs, on 27th December, 1962. The
note represented the views of all the then members of the Commission, except
shri Niren De, who could not attend the Commission's meeting of the 17th
December, 1962, at which the note was discussed.

3 Paragraph 4, supra.



3

The Commission, therefore, after emphasising that it
would have preferred to offer its opinion on the proposals
after collecting material on the large question of abolition,
expressed itself against the acceptance of the scheme of
categorisation-.

TOPIC Nmvmm -1
Procedure followed

6. The procedure which the Commission followed in its prwedm-¢
deliberations on this subject may be set out brieﬂy. followed.

On receipt of the copy of the debates in the Lok Sabina'
the necessary materials for a preliminary study were col-
lected. It was decided that a questionnaire should be
issued. The questionnaire2 was settled at the Commission':
meeting, and copies sent to State Governments, High
Courts, the Supreme Court Bar Association, High Court
Bar Associations, and other interested persons and bodies.
Copies were also sent to Members of Parliament and of
State Legislatures, every Judge of the High Court (indivi-
dually). District Bar Associations, Zila Parishads (as also
to other persons and bodies, who wished to express their
views on the subject). A great mass of material was re-
ceived, and the tabulation of the re lies, prepared in the
Commission, extended to several vo nines.

7. Further material for study had been collected in the
meantime. A draft Report ties also prepared. The sub-
ject was discussed at length in the meetings of the Com-
mission; The present Reportfis based on the conclusions
which the Commission has arrived at, after a consideration
oi the various issues, in the light of the materials collect-
e

TOPIC Norman 5
Materials studied

8. The Commission has, in its studyof the subject, re- Materials
ceived very valuable assistance from the reports of Com- Studied-
missions or Committees appointed in other countries to
consider this subject. Special mention must be made of
the comprehensive and thorough report of Royal Commis-
sion on Capital Punishment'. ' In addition, the report of
the Joint Committee of the Canadian Senate and House of
Representatives' on capital punishment, and the Report of

1 Paragraph 2, supra.

2 The questionnaire is given separately. '

3 Report of the R)Y3l Commission on Capital Punishment (1953), Cmd
8972.

4 Report of the Joint Committee of the Senate and House of Commons
(Canada) on Capital Punishment,-dated the 27th lune, 1956 (Third Session---
zznd Parliament). -



History of
the abolition
IHOVC In
India(1953-
1963).

4

the Ceylon Commission on the subject' brought out seve-
ral aspects which might otherwise have been missed.
The Commission had also before it the debates that took
place in our Parliament on the subject at various times, in
connection with Bills or resolutions for the abolition of the
death penalty, and the discussions in Parliament, bearing
on various aspects of the problem, have been instructive.

9. The (English) Homicide Act, 1957', the discussions
that took place in the House of Commons and the House of
Lords before the passing of the Act, the studies that have
been published as regards the working of the Act, and the
case law pertaining to several legal questions that arose
under the Act, were also gone into. In 1965, relevant pro-
visions of the Homicide Act were temporarily repealed
by the Murder (Abolition of Death Penalty) Act, 1965", and
we have considered the available material relating to the
latter Act also.

10. The replies received to the Questionnaire issued by
the Commission on the subject" not only furnished guid-
ance on many points, but supplied rich material, the value
of which was enhanced because of the practical experience
possessed by many of the persons who sent the replies.

11. Literature on the subject, which is abundant, has
been gone through. Available statistical material, contain-
ed in ofﬁcial publications, was before the Commission, and
ﬁgures on certain aspects have been obtained from the
Supreme Court, High Courts, State Governments, etc.
And, lastly, the excellent brochure brought out by the
United Nations on Capital Punishment5 has been of great
use to the Commission.

CHAPTER II
MOVE FOR ABOLITION
TOPIC NUMBER 6
History of the abolition move in India

12. The question of abolition of death sentence was
raised in the old Legislative Assembly in 1931, when Shri
Gaya Prasad Singh sought to introduce a Bill to» abolish
the punishment of death for offences under the Indian

I Report of the Commission of Inquiry on Capital Punishment (Ceylon
(September, 1959), (sessional Paper XIV----1959).

2 Relevant provisions of the Homicide Act, 1957 (5 and 6 Eliz 2 C. II
are temporarily repealed by the Murder (Abolition of Death Penalty) Act),
1965 (Chapter 71).

3 The Murder (Abolition of Death Penalty) Act, 1965 (Chapter 71). l
4 Paragraph 6, supra.

5 United Nations, Department of Economic and Social Affairs (1962)
Code No. STISOA/SD19, "Capital Punishment".



5

Penal Code. The Bill was introduced on the 27th January,
1931, and or: the 17th February, 1931', a motion for circu-
lation was made. The motion was negatived after the
reply of the then Home Minister Sir James Crerar. The
mover, in support of his motion, cited the examples oi
other countries which had abolished the death sentence,
pointing out that the abrogation of death penalty had not
landed human society into chaos, and argued that capital
punishment had a demoralizing effect on the human mind.
The dangers of conviction of innocent persons and the
misery caused to the wife and children of the condemned
man, were also dwelt upon. The following point was made
in this connection:---

"Every human judgment is liable to be mingled»
with error, and the torture of knowing that a man had
been hanged through what he believed was a blunder
is among the most vivid memories of Lord Carigmyle,
the famous Scottish Judge, better known as Lord Shaw
of Dunfermline, who became aconﬁrmed opponent of
capital Dpunishment. (Amrita Bazar Patrika, dated
12th June, 1930). Sir, in my own province of Bihar,
some time back, as many as ﬁve persons were con-
demned to death, and the sixth to be transported for
life, by the Sessions Judge of Shahabad, on a charge'
of murder in a case which was got up by a Sub~lns-
pector of Police. Subsequently, owing to the attitude
taken by the local public,' whose' oéiscience was shock-~
ed, an elaborate official inquiryjhad to be instituted,.,
which showed that the case whf it had ended in the
conviction of the accused for " urder was entirely
false. The Local Government w satisﬁed by evidence
which was subsequently .discovei_zed,that the case was
altogether false and concocted and directed the release-
of the condemned persons. The. Sub-{Inspector of
Police concerned and three othqiypersons, who were
found to be implicated in this remarkable conspiracy,
were hauled up before the Patna High Court, and com-
victed. (Searchlight, dated 22nd January, 1930).".

13. The Home Member, however, in his reply pointed':
out, first that in many countries death sentence had been
restored after abolition (He cited the examples of France
and Germany); secondly, th t in the abolition countries,
the enactments abolishing eath sentences were made
after a very long period of experiment; thirdly, that in his
experience as Home Member and from the familia-
rity he had gained with homicides throughout the length'
and breadth of India, he could recite to the House "crimes
of so dreadful a character that one is presented with the
very pressing question Whether in cases of that kind any
punishment other than capital punishment could on any
theory of crime be regarded as the proper punishment".

I Legislative Assembly Debates (1931), Vol. 1, page 949.



6

Fourthly, he also stated that the Indian law was more
elastic than the English law, as it empowered the Courts
to pass an alternative sentence. In this connection, he
stated " . . . . . . . . ..it is my experience, both as an ofﬁcial in
a Local Government and as an official and a Member of
the Government of India, that that discretion is very fre-
quently, and I think on the whole, very wisely and judi-
ciously exercised".

14. We may now brieﬂy trace here the history of the
abolition move in India in recent times.

15. We may first refer to the Bill introduced by Shri
l\/Iukund Lal Agrawal', in the ﬁrst Lok Sabha".

The first reading of the Bill was moved on the 24th
August, 1956, and the discussion was resumed and conclud-
ed on the 23rd November, 1956, when the Bill was reject-
ed on the opposition of the Government.

Numerous points were put forth in the speech of the
mover of the Bill", which included a review of the position
prevailing in other countries, and emphasised the futility

of capital punishment as a deterrent and its primitive-
ness5.

16. Thereafter, Shri Prithvi Raj Ka ur moved a Reso-
lution for the abolition of capital punis ment in the Rajya
Sabha, in 19585. The Resolution was withdrawn after
debate; the mover observing, "The purpose of my Resolu-
tion is served; the ripples are created and it is in the air.
By votes such delicate things are not decided. Let that
tomorrow be there which I have been promised.''.

1 Before this, on Shri M. A. Kazmi's Bill to amend section 302, I.P.C.

-Certain discussions took place in 1952 and 1954. and, in the course of the dis-

cussion, some members, e.g., Shri Venkataraman from T anjore, raised, the
question of abolition. See Bill No. 77 of I952, (withdrawn), Lok Sabha
Debates, 1952, Vol. III, Part II, No. 10, Cols. 391--3922, dated 16th

July, 1952 ; Vol. IV, Part II, No. 1, Ools. 4902-412, dated 30th July

1952 5 Lok Sabha Debates, 1954, Vol. II, Part II, dated 12th March, 1956,

C015. 2054-2058; and Vol. III, Part II, Cols. 3146-3160, dated 26th March

1954 -

2 Eli No. 24 of 1956 (Lok Sabha).See Lok Sabha Debates, 1956, Vol. I,
Part II, Col. 3538,dated 23rd March, 1956 ;Lok Sabha Debates, Vol. VII,
Part II, Cols. 4345----4388, dated 24th August, 1956; and Lok Sabha Debates
Vol. XI, Part II, Cols. 916--986, dated 23rd November, 1956.

3 For details, see Agrawal "Capital Punishment abolition move in
India", A.I.R. 1958 Journal 69, at page 73.

4 Shri M. L. Agrawal.

5 See also discussion in this Report, under "Arguments for Abolition"
paragraph 152 ct seq. infra.

6 See Raiya Sabha Debates, 25th April, I958, Cols. 431 I0 442 and 444

.10 528.



'1'

17. A Resolution for the abolition of capital punishment
was moved in 1961 in the Rajya Sabhal, by Smt. Savitry
Devi Nigam, but that was negatived after discussion.

18. After this, Shri Raghunath Singh's Resolution for
the abolition of capital punishment was discussed in the
Lok Sabha, in 19623. The Resolution was Withdrawn after
discussion. Shri Harish Chandra Mathur had moved an
amendment that the matter may be referred to the Law
Commission. The Government gave an assurance that a
copy" of the discussion that took place in the House would
be forwarded to the Law Commission, which was seized
of the question of examining the Code of Criminal Proce-
dure and the Indian Penal Code, with a View to consider-
ing as to whether any changes are necessary therein.

Thereafter, in 1963, a question was put in the Rajya
Sabha on the subject". In the answers to the supplemen-
taries on the question, Government gave an assurance that
a copy of the debates that had taken place in the Raiya
Sabha in 1961 on the resolution of Smt. Savitry Devi Nigam
would be forwarded to the Law Commission5.

I-I

TOPIC NUMBER 1
History of ab0lition move in England

19. We may trace the history of the move for abolition
in England. The number of capital offences in England
in the 18th century was very largef'. It is said7, that the
crusade against capital punishment may, (so far as the
modern period is concerned), be traced to the year 1764,
when Beccaria wrote his essay on Crime and Punishment.
His point of view, was? that since man was not his own
creator, he did not have the right to destroy human life,
individually or collectively. Capital punishment, he «said,
would be justiﬁed only if the execution would prevent a
revolutionagainst a popularly established government, or
was the only way to deter others from committing a crime.

I See Rajya Sabha Debates, 25th August, 1961, Cols. I68Ito 1784 and
8th September, 1961, Cols. 3780 to 3836.

2 Lok Sabha Debates, Aprilzt, 1962, Cols. 307 to 365, particularly
Cols. 354 and 355.

3 The copy was duly forwarded to this Commission.

4 See Rajya Sabha Debates, dated 19th December, 1963.

5 The copy was duly forwarded to this Commission.

6 See Radzindowicz, History of English Criminal Law (1948), Vol. I
pages 611-659.

7 See Elizabeth Turtle, "The Crusade against Capital Punishment"
(1961), page 2.

3-122 M 'of Law. , '1

History of
the move-
ment for
abolition of
capital
punishment
in England.



Committee
of I750.

Committee
of 1770.

Bentham.

Romilly.

8

20. In 1750, the House of Commons appointed a Corn-
mittee to inquire into the state of the criminal laws with
a View to their repeal or amendment. One of the recom-
mendations which the Committee made was to replace the
punishment of death for certain offences by "some other
adequate punishments". The Bill implementing the re-
commendations of the Committee about death penalty was
introduced and passed by the House of Commons, but
rejected by the House of Lords.

21. In 1770, on the motion of Sir Willian Meredith in
the House of Commons, a Committee was appointed to
consider the criminal laws so far as they related to capital
oﬁences, and the Committee, in due course. recommended
the abolition of the death penalty provided under eight
statutes then in force. Of these, two may be noted. There
was one statute which declared that the concealment of
the birth of a bastard child by the mother constituted a
presumption of the guilt of the mother having murdered
the child2, (unless the mother could prove that the child was
born dead). There was also another statute in force at
that time, whereunder, brieﬂy, carrying away a woman of
property against her will and marrying or deﬁling her was
a capital offence".

Some of the proposals were rejected by the House of
Commons, including the proposals relating to the two
statutes speciﬁcally mentioned above. The others were
embodied in a "Penal Laws Bill", which was passed by the
Commons; but was lost in the Lords by the prorogation of
Parliament".

22. Beccaria's views attracted the attention and support
of Bentham. Though he agreed5 that capital punishment
produced a greater impression upon the public mind than
any other mode, he maintained that this was not true in
the case of the worst criminals who might be much more
dismayed by perpetual imprisonment.

23. It was, however, Sir Samual Romil1y" who started
a serious campaign for abolition and devoted himself pri-
marily to attempting to inﬂuence Parliament to pass three
Bills designed to repeal the death penalty for theft.

I Radzinowicz, History of English Crimnal Lrw (1948), Vol. 1, pages
399. 419. 421» 422-

2 Concealment of Birth of Bastards Act, 1923 (21 ]éc., 1, c. 27).
3 Abduction of Women Act, 1486 (3 Hen. 7, c. 2).

4 For details, see Radzinowicz, History of English Criminal Law (I948),
Vol. 1, Pages 427 to 445.

5 For a summary of Bentham's views, see Radzinowicz, Criminal History
of English Law (1948), Vol. 1, pages 389, 392, 599.

6 For details of Romi1ly's efforts, see Radzinowicz, History of Englinl»
Criminal Law (1948), Vol. 1, pages 313 to 336 and pages 497 to 513.



9

His argument was, that if the law was much less severe.
juries would be more willing to convict. He could, how--
ever, succeed in getting the death ntence abrogated only
in three types of cases. The cam __ign was carried on by
Sir 'James Mackintosh after Romil 's death, and in March,
1819 his motion for a committee to study capital punish-»
ment was carried against the advice of Government by a

majority of 19.

24. Accordingly, in 1819, a Select Committee of the I8_I9 Com-
House of Commons was chosen to study the criminal law """°'~
relating to capital punishment. That Committee' recom-
mended the abrogation of 'the death penalty for many
crimes in respect of which the statutes imposing death
penalty had become obsol e. A number of Acts were
passed after the Report of . his Committee, abolishing the r
death penalty for several offences. '

25. Thereafter, there was a great campaign for the 3'18!"-
removal of death penalty for forgery.' In 1834,, John Bri ht A
began his attack on the' death penalty, arguing at
certainty of punishment wa more imbortantgthan severity,
and contended that by pra tising c pital unishmait man ;
was usurping a power belonging M €Go only. Another:
leader in the movement was Ewart,¢ ho became the lead- 5""-
ing advocate in the House Qf Com " __ of the abolition of '

capital punishment? --

I

26. In' 1833, a ﬁve-me ' her It ya] Commission was gifiogm'
appointed, which gave its feport , 1836. Its conclusion,
was, that the punishment o death Qiight to be conﬁned to
hightreason, or (with some exceptkms) tooﬁencesi' which
consist in or are aggravated? by acts of violence to the per-
son or which tend to enda er h life. In 1837, a Bill
was introduced in the Ho e of C njimons by Lord John
Russell, for the removal of eath p lty from 21 of the 37
offences which were capit when  Bill was passed.
But, in the debates, there wire someivioices raised in favour
of complete abolition of de pth penalty (even for murder);

27. In 1864, on a move itiadeb Ewart, a Commission 64-1866
on Capital Punishment wag appoi . The Commissifon minission.
had to consider the laws get W_ h the death penalty

  
   

was imposed and the met fof , pction, and to report
whether any changes were sirabl 'It sent questiomiair-
es regarding death penalty, to almost all countries in
Europe,_ and to some States in the United States, and took
oral evidence also. The Commissioners were unable to
agree upon the expediency of abolition or retention, but
they did recommend the division o£_ rnurder into degrees,

1Fordetailofth 8 C c' , Ru.' ' ' '
Criminal Laws (1946, xvi?' !,org'ni£2gc:oﬂg1iuowicz, History  English

péesﬁhzabeté to i: Turtle. fr CI'|1$_Id(3' - I J,' Punishment .v(z9?):g



Public exe-
cutions abo-
Ii shed.

Bills for
abolition.

1886 Com-
mittee.

1930 Com-
mittec

and 1938
Resolution.

10

and concluded that death penalty should be retained only
for murders in the ﬁrst degree, that is to say,------

(i) murder deliberately committed with express
malice afore-thought, such malice to be found as a fact
by the jury, and

(ii) murder committed in or with a View to per-

petation of speciﬁed felonies, namely, murder, arson,
rape, burglary, robbery and piracy.

28- After the Report of the 1866 Commission, some pro-
posals to divide murder were introduced, but without
success'. Only, public executions were abolished, as re-
commended by the 1866 Commission. Bills were introduc-
ed in 1869, 1872, 1873, 1877, 1878 and 1881 without
success, for the abolition of capital punishment. It is not
necessary to go into details of the efforts made during these
years in this connection. In 1886, a Select Committee of
the House of Lords touched on the subject, but did not
consider the feasibility of abolition".

29. So far as the 20th century is concerned, the first
legislative measure to be noticed is the Children Act of
1908, which prohibited capital punishment" for persons
under 16. But this was the only noticeable achievement
in the period preceding the First War. After the war a
noteworthy event was the Infanticide Act, 1922, under
which a woman charged with causing the death of her
newly-born child was to be punished for manslaughter
instead of murder". The most important event was the
foundation of the National Council for Abolition of Death
Penalty by a young man of 27, Roy Calvert, who educated
the public on the subject by newspaper accounts, articles,
radio broadcasts and books.

30. Roy Calvert's book "Capital Punishment in the
Twentieth Century" (1927) was the major factor in leading
to the appointment of the House of Commons Select Com-
mittee on Capital Punishment (1930). The Report of that
Committee (1931) stated, that capital punishment could be
abolished without endangering life or property or impair-
ing the security of society and recommended that for ﬁve
years capital punishment should be abolished as an experi-
mental measure5. It also made a number of recommenda-

I R. C. Report, pages 467 and 468.

2 See Elizabeth Turtle, "Crusade against Capital Punishment", (1961),
page 25.

3 See new section 53 (I) of the Children and Young Persons Act, I933
(23 and 24 Geo. 5 c. r2) prohibiting capital punishment on persons under
18 years, and section 16, Criminal Justice Act, 1948 (11 and I2 Geo. 6 c.
58).

4 See, now, the Infanticide Act, 1938 (1 and 2 Geo. 6 c. 36).

5 For details regarding the Committee .of 1930, See Elizabeth Turtle,
"The Crusade Against Capital Punishment (I961). pages 34 to 44-



11

tions (to be implemented if the main recommendation to
avoid death penalty was not implemented), regarding the
lvleNaghten rules, (relating to the defence of insanity)
death penalty for women and the restriction of death
penalty to those who were 21 years or older. Government
did not take any action on the report. Vyvyan Admas
moved a resolution in November, 1938, in the House of
Commons, for abolition of capital punishment for an
experimental period of ﬁve years, which was carried by a
majority of 114 to 89. But Government did not undertake
any legislation on the subject'.

31. So far as the period 1950 to 1959 is concerned, the
following extract from an article' gives an excellent
account of the history of the movement for abolition of
capital punishment in England.

In 1948, a clause was added to the Criminal Justice Bill,
then before the House of Commons. This clause would
have suspended the death penalty for ﬁve years. On any
matter of importance to the Government or to the opposi-
tion the Party "Whips" are put on, obliging the members
to vote in accordance with the decision of the Party. Capi-
tai punishment, however, has nearly always been regarded
as outside party politics, and it has been the custom to
leave any vote on the subject to the vote of all the mem-
bers. On the vote on this clause, the then Labour Govern-
ment advised members to vote against it, but it was carried
on a free vote of the House. The House of Lords, while
intimating that they would not have opposed a clause res-
tricting the death penalty to the worst grades or degree
of murder, rejected the clause. On the return of the Bill
to the House of Commons that House substituted a clause
limiting capital punishment to certain speciﬁed types of
murder, but the House of Lords thereupon also rejected
that clause. The Government then abandoned the clause,
but appointed a strong Royal Commission,---not to advise
whether capital punishment should be retained or abolish-

ed, but to advise whether it should be limited or modiﬁed,
and if so how.

The Royal Commission sat for four years, heard innu-
merable witnesses and themselves visited Norway, Sweden,
Denmark, Belgium, Holland and the United States to hear
further evidence in those countries. In 1955 they reported.
They said in their Report that "whether the death penalty
is used or not, and whether executions are frequent or not,
both death penalty States and abolition States show rates

1 "As the vote was taken on a private member's motion, there was no
way in the procedure of the Commons to compel Government to act on it".

Elizabeth Turtle, "The Crusade against Capital Punishment", (1961), page
53, foot-note 36.

2 Gardiner, "Capital Punishment in Britain", (1959) 45 American Bai-
Association Journal, 259.



12

which suggest that these are conditioned by other factors
than the death penalty". And their general conclusion was

as follows?-

"The general conclusion which we have reached
is, that there is no clear evidence in any of the ﬁgures
we have examined that the abolition of capital punish-
ment has led to an increase in the homicide rates or
that its reintroduction has led to a fall". They recom-
mended that the death penalty should be left to the
jury to decide in each case. They added, with refer-

» ence to this proposal, " . . . . ..its disadvantages may be
thought to outweigh its merits. If this View were to
prevail, the conclusion to our mind would be inesca-
pable that in this country a stage has been reached
where little more can be done effectively to limit the
liability to suffer the death penalty, and that the real
issue is now whether capital punishment should be
retained or abolished.".

The Report of the Royal Commission led to a much
wider knowledge in this country of the relevant facts and
to an increase in the demand for the abolition of capital
put-ishment. Many people here had not realised before
that outside British territory the only civilised countries
in Western world which retain capital punishment are
France, Spain and some of the United States and that all
other countries regard the imposition of death as a form
of punishment both unnecessary as a deterrent and an
anachronistic barbarity. Nor had they realised that the
universal experience of abolitioh countries had been that
the abolition of capital punishment does not in fact result
in any increase in the homicide rate.

The Death Penalty (Abolition) Bill

In February, 1956, a resolution calling on the Govern-
ient to introduce forthwith legislation for the abolition or
suspension of capital punishment Was carried in the House
of Commons. When, in' March, a private member intro-
duced a Bill in the House of Commons to abolish capital
punishment, the Conservative Government, in accordance
with precedent, left the matter to a free vote of the House,
while strongly advising the House, which had a Conserva-
tive majority, to vote against the Bill. The Bill was never-
theless carried on each of its three readings, and
in July went to the House of Lords, which rejected the Bill
on its second reading. Those who voted in favour on the
second reading, however, included four of the judicial
members of the House of Lords, the two archbishops and
eight out of the nine bishops present; and it became clear
that so many leading citizens of repute strongly felt that
some change in the law must be made that the Govern-
ment introduced its own Bill, which became the Homicide
Act, 1957, which was passed into law, contrary to preced-
ent, by means of the Conservative Party "Whips". It was

a compromise.



13

32. Subsequent history of abolition in England is well- English

known, and need not be given in detail. On the 4th Dec- Act 051965-
ember, 1964, the Murder (Abolition of Death Penalty) Act,
Bill was introduced by Mr. Sydney Silverman; after a long
discussion the Bill was passed by both the Houses. It re-
ceived the Royal assent on the 8th November, 1965. Under
the Act', no person shall suffer death for murder, and a
person convicted of murder shall be sentenced to imprison-
ment for lifez; where the person convicted of murder
appears to the court to have been under the age of eighteen
years at the time when the offence was committed, he is to
be sentenced to be "detained during Her Majesty's pleas-
sure", and if so sentenced, he is liable to be detained in
such place and under such conditions as the Secretary of
State may direct3.

33. On sentencing any person convicted of murder to
imprisonment for life, the court may, at the same time,
declare the period which it recommends to the Secretary
of State as the minimum period which (in its view) should
elapse before the Secretary of State may order the release
of that person on licence under section 27 of Prison Act
1952, etc}.

34. The Act" also provides, that a person convicted of
murder shall not be released on licence under section 27
of the Prison Act, 1952, etc.. unless the Secretary of State
has, prior to such release, consulted the Lord Chief Justice
of England or the Lord Justice General, as the case may
be, together with the trial judge if available".

:55. The Act shall continue in force until the 31st July,
1970, and shall then expire, unless Parliament by afﬁrma-
tive resolutions of both Houses otherwise determines. Upon
the expiration of the Act, the law existing immediately
prior to the passing of this Act shall, so far as it is repealed
or amended by the Act, again operate as if the Act had not
been passed, and as if the said repeals and amendments
had not been enacted7_

There are certain other detailed provisions, which are
not relevant for the present purpose.

r The Murder (Abolition of Death Penalty) Act, 1965 (Chapter 71).
2 Section I (I).

3 Section 1 (6), amending section 53 of the Children and Young Persons
Act, 1933 (Chapter 12).

4 Section I (2).
5 The Murrler (Abolition of Death Penalty) Act, I965 (ch. 71).
6 Section 2.

7 Section 4.



Abolition
move in
U.S.A.

.t-i

TOPIC NUMBER 8

Aboiition move in United States of America and Central
and South America

36. There has been a ﬂuctuating tendency towards
abolition in the United States. Most of the States have
retained it, but in some States it has been abolished, either
totally or for ail offences except for treason.

37. The following extract from one work' shows the
position in detail in the United States of America, in 1950.

"The States where death and death alone is the
penalty for murder; are Connecticut, Massachusetts,
Nebraska, New Mexico, and Pennsylvania. Among
other crimes punishable by death alone are: treason in
Delawarez, Maryland and New York; arson in Dela-
ware3, Maryland, and North Carolina, rape in Florida,
Georgia, North Carolina, and Tennessee; and burglary
in Delaware and North Carolina. It is to be observed,
however, that the death penalty is rarely, if ever,
inflicted for these crimes. Death or imprisonment are
alternative punishments for murder in Alabama,
Arizona, California, Colorado, Idaho, Illinois, Indiana,
Iowa, Kentucky, Louisiana, Mississippi, Missouri,
Montana, Nevada, New Hampshire, New Jersey, Ohio.
Oklahoma, South Carolina, Texas, Utah, Virginia, West
Virginia, and Wyoming; for treason in Alabama,
Arizona Georgia, Mississippi, Montana, New Jersey,
and West Virginia; for arson in Alabama, Louisiana,
Mississippi, South Carolina, Vermont, Virginia, and
West Virginia; for rape in Alabama, Delaware,
Kentucky, Louisiana, Maryland, Mississippi, Missouri,
Oklahoma, South Carolina, Texas" Virginia, and West
Virginia; for bulglary or robbery in Alabama,
Lousiana, and Virginia.''. . V

38. A brief summary of the existing position regarding
capital crimes in the United States of America is given in
one article? as follows:---

"There are six capital crimes under Federal law
(murder, rape, bank robbery, kidnapping, treason,
espionage) and some thirty under state laws (e.g.
aiding a suicide in Arkansas or burning a railway
bridge in Georgia), but in practice the death penalty
is seldom carried out in the United States for offences
other than (1) murder and (2) rape committed by a

I Scott, History of Capital Punishment, (1950), page 71.

2-3 Delaware abolished the death penalty (See U. N. Publication Table
II--page 74). but, in 1961, it re-instated it. See Clarence H. Patrick,
" The Status of Capital Punishment " (1965 December) 56 ].Cr. L. Crimino~
logy, 397, 41!.

4 "Capital Pun_ish.ment--A fading practice" published in "Time"
dated 21st March, 1963', reproduced in McClellan, Capital Punishment,
(1951) pages 24 and 25.



15

Negro in the South. Of the 97 men executed in the
United States in 1958-59 under State laws, 81 were
convicted of murder. 15 of rape (14 Negroes, one white,
all in southern states), and one of armed robbery (a
Negro, in Texas).".

39. The overall position regarding capital punishment
in the United States as in 1961 is summarised in one
article' as iollows:----

"The death penalty may now (February, 1956) be
imposed by forty-two States, the District of Columbia
and the Federal Government. Of these, thirty-ﬁve
States arid the United States provide that the Jury shall
determine when the death penalty is to be imposed;
four States provide that the jury may recommend the
death penalty, but the Judge is not bound by the
recommendation; and three States require capital
punishment. Twenty--six of the thirty-ﬁve States (and
the Federal Government) that allow the jury to
determine punishment, divide murder into degrees and
allow the death penalty only in the case of first-degree
murder. Nine States abolished the death penalty but
later restored it, with life imprisonment as an alter-
native. One State, Maine, abolished, restored and
again abolished the death penalty.".

40. The deliberations of the Royal Commission in
England also led to a renewed move for abolition in the
United States. The Society of Friends and the League to
abolish Capital Punishment led to a number ofinterested
groups which began to press for legislative action".

41. In the year 1958, abolition Bills were introduced
in 18 States of the U.S.A. and the State of Delaware
abolished capital punishment on 24th March, 1958. That
was as the result of the recommendation of a Committee

pt the Delaware Legislature, which recommended aboli-
1011 .

42. In the State of Massachusetts, a Commission of the
Legislature was appointed in 1957 to study the subject.
By a majority report, it urged abolition". But the pro-
posal for abolition seems to have been rejected5.

I Younger, " Capital Punis_hment--A Sharp Medicine Reconsidered,"
reproduced in McClellan, Capital Punishment (1961), page 14.

2 Bedau. "Death Penalty Today", Christian Century," March 18, 1959,
reprinted in McClellan, Capital Punishment (1961), page 99.

3 McClellan, Capital Punishment (1961) page 37. Reasons given by the
Delaware Committee are summarised at pages 41 to 43.

_4 Badau, "Death Penalty Today", Christian Century March 18, I959,
reprmted in McClellan, Capital Punishment (1961) page 99 (For minority
Report, McClellan, see page 72).

5 U. 8. News & World Report, 1960, March 7. pages 48 to 52, cited in
McClellan, Capital Punxshment (1961), page 11. '



16

43. In the State of Oregon, the Legislature passed an
abolition Bill which was endorsed by the Governor.
Under the Constitution, a public referendum was required
before abolition could be effected, and the Bill was placed
on the ballot in the November 1958 election, but the pro-
posal was defeated by 10,240 votes---about 2 per cent. of
the total '-2.

44. In the State of New Jersey, Bills were introduced
to abolish capital punishment in 1956, 1957 and 1958, but
"died in Committee" by adjournment of the Legislature3.

45. In the State of California, a special Commission was
established 'for investigating and studying the abolition
of the death penalty in capital cases'. Interest in the sub-
ject was accentuated by the famous case of Caryl Chess-
man, whose execution was stayed for 12 yeras before he
was ﬁnally executed on 2nd May, 19605,

46. The Judiciary Committee of the House of Represen-
tatives, California, it is stated", held a hearing of the
witnesses for and against capital punishmentfor 16 hours.
The proposal of the Governor of California (Mr. Brown)
to abolish the death penalty7 was rejected by eight votes
against seven. _

47. In 1963, Michigan; abolished the death penalty'.

48. In 1959 or 1960, besides the States mentioned above,
the States of Connecticut, Florida, New York, and Ohio
also seem to have considered moves for abolition".

I Bedau, "Death Penalty Today", Christian Century, March 18, 1959
reprinted in McClellan, Capital Punishment (1961), page II.

2 Later, however, some States including Oregon seem to have abolished

»or limited it. See Clcarences S. Patrick, " Status of Capital Punishment-

A world Perspective ", (Dec. 1965) 56 Journal of Criminal Law, Criminology
and Police Science, 397, 411, foot-note.

3 Bedan, "Death Penalty Today", Christian Century, March 18', 1959
reprinted in McClellan, Capital Punisrment (1961), page 101.

4 House Report No. 2575 (California).
5 Article in " Time ", 21st March, 1960, " Justice: The Chessman

Affair", reprinted in McClellan, Capital Punishment, (I961), prge 115;
also see ibid, pages 120 and I21.

15 Joyce, Right to Life (1962), page 33.

7 The Governor's Message is printed in the "Californian", May, I960
pages I, 11 and I2, reproduced in McClellan, Capital Punishment (r961
page I12.

8 See Clarence H. Patric, "The Status of Capital l_?unishment----1_\
World Perspective" (December 1965), 56 Journal of Criminal Law, Cri-
minology and Police Science, 397, 405, foot-note 4.

9 U. S. News and World Report, 1960, March 7, pages 48 to 52, cited
an McClellan, Capital Punishment (1961), page II.



17

49. It is understood, that recently the States of Oregon,
Iowa, West Virginia, Vermond, and New York have
abolished or limited the death penaltyl.

50. While several countries in Central and South Central and
America abolished capital punishment towards the end of S°"'h.
the 19th century, a few returned to it in the present ﬁggégf and
century.

Thus, Mexico, after abolition in 1928, re-introduced the
death penalty in 1943 for crime arising from highway
banditry'-'. Peru also, after abolition, re-introduced it in
1949, for crimes arising from highway banditry".

51. Amongst the other countries in Central and South
America which abolished the death penalty (except for
military offences or very unusual crimes) are Argentina
(1922), Dominican Republic (1924), Brazil (1946),
Colombia (1863), Venezuela (1864), and Uruguay (1877)".

TOPIC NUMBER 9

Capital Pum'shment--AbolitiOn in Europe, Australia and
New Zealand

52. The move for reform of the law relating to capital Capital
punishment in Europe may be regarded as having started §,')"(')'l'i:li'(')';"°i"I§"
with Beccaria, who published his famous Essay on crimes Europe and
and penalties in Italian in the latter half of the 18th Australia.
century. His main argument was, that man had no right
to dispose of a life which he had not granted to another,
and that this right did not belong even to society as a
whole. Death penalty amounted to a war declared by one
man over the whole nation, and if the penalty was neither V
useful nor necessary, as he sought to prove, then it must
be abolished. "Every act of authority of one man over
another, for which there is not an absolute necessity, is
tyrannicalﬂ". When he wrote, the modes of execution
which were prevalent in Europe were many and various,
and the main effect of his Writings was to humanise those
modes'. The move for abolition gathened momentum by
the efforts of de Sellon, a Swiss who pleaded before the
Geneva Grand Council to set an example to Europe by
abolishig death penalty. He also invited essays on the
subject. The essays submitted in response to his invita-

I Clarence H. Patrick, "The Status of Capital Punishment : A world
Perspective", (1965 December) 56 Journal of Criminal Law, Criminology
and Police Science 397, 411, foot--note 12.

2 Ioyce, Right to Life (1962), pages 76, 78 and 79. '
3 Based on lﬁyce, Right to Life (1962), pages 76, 78 and 79.

4 Beccaria, quoted in Scott, The history of Capital Punishment
([950), page xiv.

5 Joyce, Right to Life (1962), pages 70 and 71.



18

tion were numerouspof which those of Lucas (a future
Inspector General of French Prisons) and of Lamartine
deserve mention. The former regarded abolition as the
essential point of departure for any scheme of criminal
reform, while the latter put this question "Must society
and a criminal watch each other for ever to see which will
be the first to cease to shed blood"?" Considerable litera-
ture was published in 'Italy, France and Sweden' on the
subject. In the French Constitution of 1948, death penalty
was abolished for political cases, and in the French
Criminal Code of 1832 the number of capital crimes was
reduced and other reforms made. Reforms followed in
some Swiss Cantons also.

53. The 19th century may perhaps be described as an
era of great strides in the direction of abolition. The fol-
lowing quotation from Joyce2 gives a full picture of what
took place in that century.

This movement continued steadily until the end of the
century. Portugal, it may be surprising to discover,
appears to have carried out no executions since 1843 and
legally abolished Capital Punishment in 1867. This lead
was followed by Saxiny in 1868, the Netherlands in 1870,
Maine (U.S.A.) in 1887, Costa Rica in 1880, Italy and
Guatemala in 1889, Brazil in 1890, Nicaragua in 1892 and
Honduras in 1894. _

The Swiss experience will receive speciﬁc mention
later, but it can here be recorded in the general sequence
that the death penalty was abolished in Neuchatel in 1854,
Zurich in 1869, Tessin and Geneva in 1871, Basle in 1872
and Soleure in 1874. Moreover, by a declaration of prin-
ciple in the revised Federal Constitution of 1874 (Article
65), the death penalty was abolished, except in military
law in time of war. At the same time, it is to be noticed
that, in countries still retaining the death penalty, propo-
sals were frequently introduced for its abolition and it was,
in practice, applied less and less. For instance, while in
Germany it was still retained in the penal code' of 1871, the
proportion of executions before the First World War was
less than 1 per cent. of capital cases. In France, the President
regularly reprieved those condemned and, for the ﬁrst ten
years of the present century, nearly 90per cent. of sentences
were commuted. Professor Jean Graven comments on these
undoubted advances as follows: "It might seem that the
question was almost closed and that the guillotine and the
gallows would soon be relegated to the museum. . . .The
death penalty, even for the most atrocious murders, seem-
ed to be retreating before the advance of civilisation". 1

The movement was also gaining ground in the Nordic
countries, where there had been no executions for many
years. The abolition of the penalty in Norway, where it

I See Joyce, Right to Life (1962), page 73.
2 Joyce, Right to Life (1962), pages 76 to 77.



19

had not been used for over a century, occurred in 1905,
and was followed in Sweden in 1921, Denmark in 1930,
Iceland in 1944 and Finland in 1949. Incidentally, there
is no record of any condemned person having been execut-
ed in Finland since 1826, though the situation was radically
changed, of course, during the course of Russo-Finish War
in 1940. What happened in Norway, as a consequence
of the Second World War, is reserved for comment below.
In the case of Denmark, however, the death penalty was
recently re-introduced for treason.

It need hardly be stressed that the Second World War
and its aftermath of "retribution" played havoc with these
healthy trends. On that account, no conspectus of such
developments, covering the experience of so many coun-
tries, could possibly be presented in any logical or consist-
ent manner, so none is attempted. (The Table in the
Appendix1 attempts a bird's eye View of the position at the
present time, but is subject to explanations in the main
text).

For instance, the Netherlands, gave up the penalty in
1870, but re-introduced it at the end of the Second World
War; and, between 1945 and 1949, one hundred and twenty
death sentences were pronounced. Belgium has carried
out no non-military death sentences since 1863, but the
penalty has not been legally abolished by any Act of Par-
liament. Portugal, as already mentioned, renounced the
death penalty oiﬁcially in 1867 and Spain did the same in
1932. But would any conscientious observer care to dog-
matise on the practice of these two non-parliamentary
dictatorships«especially in the latter case--in View of the
serious inroads into personal freedom, associated with both
these States, which have been the subject of frequent
international concern or actual interventions?

In Italy--the birthplace and for many years the home
of the modern science of criminology---no serious increase
of crime was reported during the years from 1890 to 1926,
when the death penalty was abolished. It was re-intro-
duced by the Fascist regime, and abolition again decreed
in 1944 and embodied in the Republican Constitution of
1947, where Article 27 declares that the purpose of penal-
ties imposed by the courts shall be the re-education of the
condemned person and that his treatment shall be humane.
The death pemlty must not be imposed, except under
military law in time of war.

54. It would appear, that in Russia, death penalty was capital
abolished in the mid-eighteenth century except for political punishment
offences, and was allowed as a rare measure in the penal in Russia-
codes of 1922 and 1926. It was abolished again in 1927 for

r The Appendix in Joyce's Book is not reproduced here.



Abolition
move in
New Zea-
land.

Aboliti on
IIIOVC In
Canada.

20

common law offences except brigandage, but retained for
grave political and military offences; it was replaced in
1947 during peace time by temporary internment. In 1950,
traitors, spies and saboteurs were excepted from this
leniency'.

55. The broad policy on the subject can be ascertained
from the Principles of Punishment?-3.

In accordance with the federal legislation enacted
in 1958 and now in force, Capital Punishment--by
means of shootir.'g----is permitted as an exceptional
m;asur.- of punishment, before being completely
abolished, for the following crimes: treason to the
country, spying, "diversion", terrorist activities, burg-
lary, premeditated murder with aggravating circums-
tances, as these crimes are referred to in the provisions
of the penal law of U.S.S.R. and the Republics of the
Union which determine responsibility for premeditated
murder, and, in war-time or in war-circumstances, also
for other particularly grave crimes in cases specially
provided for by the legislation of U.S.S.R. Persons
who have not reached, before committing their crime,
the age of 18 years, cannot be put to death, nor women
who are with child during their crime or at the
moment of the judgment or on the day of the execu-
tion,

56. Position regarding Australia is this. Abolition took
place in Queensland, (Australia) in 1962 (there bei.ng no
executions since 1913), and in New South Wales in 1955
(there being no executions since 1939)".

57. Capital punishment has been abolished in New
Zealand, except for treason? The abolition came after a
"chequered history" of abolition and restoration''. "It has
been enforced and suspended and abolished, and reinstated
and suspended again----a weather cock varying with every
change of Government since 1935.7".

TOPIC NUMBER 10
Abolition Move in Canada

58. The history of the move for abolition in Canada and
the reasons for the recent decision of the Government are

1 Joyce, Right to Life (1962), pages 79 and So.
See translation of section 22, Principles of Punishment etc. (1958) in
Joyce, Right to Life (1962), page 96.
See also Appendix relating to Death Penalty in Russia.
Ioyce, Right to Life (1962), page 78. *
See section 74 (I) and X72, Crimes Act, 1961 (New-Zealand).
Detailed discussion about New Zealand will be found in this
Report elsewhere, under "Deterrent effect".

7 Mr. Hannan, Minister of Justice, in New Zealand H. R. Debates, dated
13th September, 1961, Col. 2206. _

N

0'LIIJ>~"'



21

well set out by Hon. E. D. Pulton, Minister of Justice, in
his speech on the second reading lit Bill No. C-92, to amend
the Criminal Code'. The relevant portion is quoted
below:---

"In Canada attempts to alter the death penalty for"

murder began at least as far back as 1914, when Mr.

Robert Bickerdike introduced Bills to abolish capital.

punishment in several sessions of the House of Com-

mons beginning in that year. Although they were

debated at length, none of them resulted in legislation.
In 1924, Mr. William Irvine introduced a similar Bill
which also failed of passage. In 1937 a Bill was intro-
duced by Mr. Blair to provide that the sentence of
death be executed in a lethal chamber rather than by
hanging. This Bill was referred to a special com-
mittee which reported unfavourably on the proposal.

In 1947 and again in 1958 the Canadian Institute of"

Public Opinion made two inquiries with almost identi-
cal results, 68 per cent. in favour of retaining capital
punishment against 23 per cent. -in favour of life
imprisonment.".

In 1950 and again in 1952 Mr. Ross Thatcher introduced
a Bill to abolish capital punishment. On the latter occa-
sion he withdrew it on the undertaking from the then
Minister of Justice that at the next session Parliament

would be asked to set up a committee to go into the matter
fully.

"The most authoritative recent exposition in
Canada has been report of the joint committee of the
Senate and House of Commons on capital punishment,
corporal punishment and lotteries which was set up
pursuant to the undertaking referred to. This Com-
mittee, which studied these matters for two years, in
1954 and 1955, recommended the retention of capital
punishment, and in this respect the Bill before the
house meets the recommendation of the committee.
The committee also recommended that there be no
degrees of murder. In this respect the Bill does not
follow the recommendation of the joint committee.".

The deep and continuing concern of Hon. members with
this subject is shown by the debates that took place
both last year and this year on certain private members'
Bills. Although these debates took place on one Bill only,
a Bill for the abolition of capital punishment for murder,

the fact is that last year at least three Bills were intro--»

duced all differing in their proposals. While these Bills
approached the subject from different directions, they did

have in common an assumption of dissatisfaction with the-

I Canadian House of Commons, Debates, Session 1960-61, Vol. 5,.
pages 5220, 5222 et seq. (23rd May, 1961).



22

present position and a desire to bring the law in this con-
nection in closer conformity with present day concepts of
crime and punishment.

"I believe we owe much to the members who spon-
sored those Bills, the hon. member for York-Scar-
borough (Mr. McGee), the hon. member for Burnaby-
Richmond (Mr. Drysdale) and the hon. member for
Vancouver East (Mr. Winch), quite apart from the
question whether or not we agreed with their speciﬁc
proposals. I believe the ensuing debate on this Bill
will be all the better for the thinking and formulation
cg id:::s about this subject which those Bills stipulat-
e .

"Although none of those Bills was adopted, an
analysis of the debates which took place, as well as
discussions with those who did not participate, show
quite clearly that the majority of members in the house
favour retention of capital punishment. It became
equally obvious, however, that even among those
opposed to abolition there are serious misgivings as
to the present law and practice governing the death
penalty. It therefore seems proper and desirable to
-bring about some modiﬁcation of the law and practice.

"There is another thing which, in my submission,
a review of these debates, as well as a study of all that
has beer: said and written elsewhere, makes quite
clear. It is that while the authorities are of some
assistance and the debates have been of help, never-
theless this is an area where views are held with such
depth of feeling that they are never going to be
changed by mere weight of aigument or statistics.
Indeed, on the question of the deterrent effect especial-
ly, statistics cannot give a satisfactory answer; there
are no statistics of murders not committed. But as in
the case of all such proble s_, there has to be some
ﬁnality, responsibility has to be taken and a decision
has to be made, and this the Government has done.

"We have accordingly approached the question on
broad grounds. We have ﬁrst been mindful of the fact
that the criminal law must endeavour to translate into
an enforceable code the highest concepts of the moral
and legal standards by which society desires to be
governed, while at the same time, since it must com-
mand respect if it is to achieve this purpose, it must
broadly reﬂect the actual state of public opinion.

"Second, we have taken account of the fact that
the country, as reflected by opinion in this house,
favours retention of capital punishment. Third, we
have also recognised that even among those who
favour retention there is a eneral feeling that the law
should be modiﬁed. Final y, we have taken account



23

of the feelings against the rather artiﬁcial division of
murder into degrees based on the means by which it is
committed or the class or" person who is killed.

"Thus While we have avoided the rather arbitrary
and rigid classiﬁcation found in the British homicide
Act. we have put more emphasis on the element of
deliberation as the requisite for capital murder than
has been the case generally in the United States. We
have also provided for an automatic review by the
court of appeal, and for an appeal as of right to the
Supreme Court of Canada. In short, we have applied
our own thinking to the mass of authority and opinion
available, and have produced a Bill which represents
our views of the kind of law by which Canadians would
wish to be and should be governed. On this broad

basis we take full responsibility for presenting this
Bill to the house".

59. The amendments made in 1961 to the Canadian Cri-
minal Code are in the nature of a division of murder into
capital and non-capital.' It may be noted, that the Joint
Committee" which had gone into the subject was opposed
to any scheme of "degrees of murder", because such a
scheme had been opposed by all the law enforcement om-
cers, and also because it shared the conclusion of the
Royal Commission on the point (that such a division
would not be satisfactory). The Government, however,
after taking into consideration several factors, thought it
desirable to bring about some modification of the law, and

introduced the Bill (to amend the Criminal Code), which
has now become law.

Recently, a Bill was moved in Canada to abolish capital
punishment. It will be sufﬁcient to quote a summary of
the debate":~~--

"The best debate of the sessions was on a Bill
introduced by a private member for the abolition of
capital punishment. Since the Government permit-
ted a rree vote, party lines were split on the issue and
a series of excellent speeches were delivered by sup-
porters and opponents of abolition before the Bill was
defeated by 143 votes to 112. One interesting feature
of the vote was that support for the retention of the
death penalty came mainly from members for the
rural constituencies, and urban members contributed
most of the minority. The verdict of the House of
Commons Leaves the Government in a difficulty as 1_8
out of 23 members-----including Mr. Pearson and his

I See comoarative macerial--~I961 amendments to the Canad5anCriminal
Code. \ 1

2 C'madiar1ReDort(R°,uort dated 27th Tune. 1955 Of 313,305" C9";
mine: of the Canadian Senate and House of Commons on Capital Punish"
mom), pages I7 and I8, oaragraphs 70 End 71-

3'1'he Round Table, (The Cmmonwealth Quarterly) (1111? 1955)'
Number 223, under Canada 296 and 307-

4--122 MofLaw.



Abolition in
Asia.

24

Solicitor--General, Mr. Pennel, a fervent abolitionist
who advises the Cabinet about appeals for commuta-
tions---voted in favour of abolition. There are 15 mur-
derers awaiting Cabinet decisionlf'.

TOPIC NUMBER 11
Abolition in Asia

_ 60. In a few countries of Asia, the abolition or limita-
tion of capital punishment has been formally considered.

61. In Ceylon, capital punishment was suspended by
the Suspension of Capital Punishment Act (20 of 1958)

for 3 years. (The period of suspension was subject to fur-
ther extension by resolution).

(In May, 1958, death penalty was temporarily pres-
cribed for certain offences against property). The ques-

tion of restoration was considered? by a Commission of
Inquiry".

The majority of the Ceylon Commission was opposed
to restoration of the capital punishment. But it was res-
toredi, by the Suspension of Capital Punishment (Re-

peal) Act (Ceylon Act 25 of 1959), assented to on the 2nd
December, 1959. M

62. In Japan, it is understood, proposals are under con-

sideration to limit the death penalty to a lesser number
of offences than at present5.

63. In Burma, the Penal Code (i.e. the Indian Penal
Code which is still in force there) has been amended so as
to limit the death penalty _(so far as hon;iic'id.'e is concem-
ed) to only certain categories of murders .

1 The Round Table, (The Commonwealth Quarterly) 0013', 1955
Number 223. under " Canada" pages 295 and 300-

2 Report of the Ceylon Commission of Inquiry on Capital Punishment
Sessional Paper XIV-1959, published on 14th Septﬁmbﬂi 1959-

C ' ' tituted of Professor Norval Morris (Chair-
n1aq?3'x¥;h§Edmf§'11r'%{'7Si?:;:c1raV:::  Bar-at-Law, and Professor T. Nadaraja
(Members). '

4 See comparative material, in this Report.
5 See " A Preparatory Draft for the Revised Penal Code 0_f 1313311.. 1951'
(Minjstry of Justice) (Japan) (1963), page 17 of the Introduction, and Draft

sections 192 204 213, as compared with the existing Penal C0d€ 0f 13133"-
9 5 _
sections m8, 119, I26.

6 See comparative material.



25

Tome NUIMBER 12
Abolition move in United Nations

64. The subject of Capital Punishment attracted atten- Abolitionin
tion in the United Nations also, towards the end of 1957, '."'i'°d N3'
when the Third Committee of the Twelfth U. N. General mm'
Assembly opened discussion on Article 6 of the Draft
Ccovexviant on Civil and Political Rights. The draft is quot-

e be oW':-----

"1. No one shall be arbitrarily deprived of his life.
Everyone's right to his life shall be protected by law.

"2. In countries where capital punishment exists,
sentence of death may be imposed only as a penalty
for the most serious crimes pursuant to the sentence
of a competent court and in accordance with the law.''.

65. The delegate for Uruguay moved an amendment,
the effect of which was to prohibit the taking of life under
any circumstances whatsoever, and this was supported by
the delegate for Colombia. A lot of discussion took place
on the drafting of the clause, and the Co1ombia--Uruguay
amendment to the effect that "The death penalty shall not
be imposed on any person" was voted down on 25th Nov-
ember, 1957 with nine in favour (Brazil, Colombia, Domi-
nican Republic, Ecuador, Finland, Italy, Panama, Uruguay
and Venezuela) and 51 against, with 12 absentions".

66. The Article as ﬁnaily approved by the Conhmittee
read as fO}10WSZ2---~

"Article 5-

1. Every human being has the inherent right
to iife. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the
death penalty, sentence of death may be imposed
only for the most serious crimes in accordance
with law in force at the time of the commission
of the crime and. not contrary to the provisions
of this Covenant and to the Convention on the
Prevention and Punishment of the Crime of Geno-
cide. This penalty can only be carried out pursu-
ant to a final judgment rendered by a competent
Court.

3. When deprivation of life constitutes. the
crime of Genocide, it is understood that nothing
in this articie shall authorise any State Party to

1 See Joyce, Right to Life, (1962), page 178.
2. Joyce, Right to Life (1962), page 196.



26

defiogati in any. Way from any obligation assumed
un er 13 9 P1'0V1S10ns of the Convention on the

Prevention and Punishment of the Crime of
Genocide.

I 4. Anyone sentenced to death shall have the
right to seek pardon or commutation of the sen-
tence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.

_ 5. Sentence of death shall not be imposed for
crimes committed by persons below eighteen

years of age and shall not be carried out on preg-

nant women. ,

6. Nothing in this article shall be invoked to
delay or to prevent the abolition of capital punish-
ment by any State Party to the Covenant.".

This was approved by 55 votes to none, with 17 absten-
tions. (India did not abstain. It voted in favour) 1.

67. Two years later, the same Third Committee discuss-
ed a draft resolution on Capital Punishment, the main
effect of which was to invite the Economic and Social
Council to request the Commission on Human Rights to
undertake a study of the question". This resolution was
moved by Austria, Ceylon, Ecuador, Italy, Sweden, Vene-
zuela and Uruguay. The resolution was adopted in subs-
tance, and on the 6th April, 1960 the Economic and Social
Council decided to initiate a review of the various aspects
of this question'.

CHAPTER III
EXISTING LAW .
TOPIC NUIVIBER 13

Existing provisions of the Indian Penal Code regarding
Capitall offences
Exist_i1_1g 68. So far as the Indian Penal Code is concerned, the
g§:Vff1'é';:,sn°f sentence of death can be awarded for certain offences"
Pmal code under the Code. In most of these cases, the sentence of
regarding death is permissive, and the court has a discretion to
°aP"al award the lesser sentence of imprisonment for life. It is
eﬂences' only in one case, namely, murder committed by a person
under sentence of imprisonment for life5, that the sentence
of death is obligatory.

I See Joyce, Right to Life (1962), page I97, foot-note i.
2 Joyce, Right to Life (1962), page 199.

3 The stud has since been published under the title " Capital Punish-
m.-,m"_ by the Llvnited Nations. Department of Economic and Social Affairs
New York (I962), Document No. ST/SOA/SD/9.

4 See paragraph 69, infra.
5 Section 303 Indian Penal Code.



27

69. The relevant sections of the Indian Penal Code and Sections
the offences concerned are as follows:--

quoted.
S°Cti°n 121 Waging War, etC., against the Government

of India.
Section 132 .

Abetment of mutiny by a member of the
armed forces.

Section 194, second para- False evidence leading to conviction of

graph. innocent person and his execution.

Section 302 . . . Murder.

Section 303 . . Murder by a life-convict.

Section 305 . Abetment of suicide of child or insane

person.

Section 307 . . . Attempt to murder by life-convict.
Section 396 . . . Dacoity with murder.

70. The offence of murder may be dealt --.-vitn in detail.
The offence is deﬁned in section 300 of the Indian Penal
Code. That section provides, that except in the cases
hereinafter excepted, "culpable homicide" is murder ii the
act by which the death is caused is done with the inten-
tion or knowledge set out in the section. The deﬁnition of
"culpable homicide" is given in section 299. The sections
are set out below', omitting the illustrations:--

"Section 299--Whoever causes death by doing an
act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of
culpable homicide.

Explanation 1.--A person who causes bodily in-
jury to another who is labouring under a disorder,
disease or bodily inﬁrmity, and thereby accelerates
the death of that other, shall be deemed to have caus-
ed his death.

Explanation 2.------Where death is caused by bodily
injury, the person who causes such bodily injury shall
be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment
the death might have been prevented.

Explanation 3.--The causing of the death of a
child in the mother's womb is not homicide. But it
may amount to culpable homicide to cause the death
of a living child, if any part of that child has been
brought forth, though the child may not have breath-
ed or been completely born.

I Sections 299 and 300, Indian Penal Code.



'28

Section 300----Excep_t in the cases hereinafter ex-
cepted, culpable hormcide is murder, if the act by
which the death 1S caused is done with the intention
of causing death, or--

2ndly.--If it is done with the intention of causing
such bodily 1l'1]1.1I'y as the offender knows to be likely
to cause the death of the person to whom the harm is
caused, or---

.3r'd.ly.---If it is done with the intention of causing
bodily 11'1]UJ.'y to any person and the bodily injury in-
tended to be inﬂicted is sufficient in the ordinary
course of nature to cause death, or-- .

4thtg.--If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability cause death, or such bodily injury as is
likely to. cause death, and commits such act without
any excuse for incurring the risk of causing death or
such injury as aforesaid.

Exception 1.----Culpable homicide is not murder if
the offender, whilst dep 'ved of the power of self-
control by grave and su den, provocation, causes the
death of the person who gavethe provocation or caus-
es the death of any other person by mistake or acci-
dent. '

The above exception is subject to the following
provisos:--

First-That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.

S'eco*ndly.--That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such
public servant.

Thirdly.---That the provocation is not given by
anything done in the lawful exercise of the right of
private defence.

E.7.~pl'arna.'t1'Jon..----Whetl1er the provocation was
grave and sudden enough to prevent the offence from
amounting to murder is a question of fact.

Exception 2.----Culpable homicide is not rmurder
if the oifender, in the exercise in 'good faith of the
right of private defence of person or property, ex-
ceeds the power given to him by law and causes the
death of the person against Whom he is exercising
such right of defence without premeditation, and
without any intention of doing more harm than. IS
necessary for the purpose at such defence. '



29

_ Exceptum 3.--.Culpable homicide is not murder
if the offender, being a public servant or aiding a
pu'bl1c servant acting for the advancement of public
]l1St1Ce, exceeds the powers given to him by law, and
causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due dis-
charge of his duty as such public servant and without
ill-will towards the person whose death is caused.

Exception 4.--Culpable homicide is not murder if
it is committed without pre-meditation in a sudden
ﬁght in the heat of passion upon a sudden quarrel and
without the offender's' having taken undue advantage
or acted in a cruel or unusual manner.

Expianationr-It is immaterial in such cases

which party offers the provocation or commits the
ﬁrst assault.

Exception 5.--Culpable homicide is not murder
when the person whose death is caused, being above
the age of eighteen years, suﬁers death or takes the
risk of death with his own consent".

71. It is not necessary, for the present purpose, to enter Distinction
into any lengthy discussion of the ingredients of each of between

the offences. Broadly stated, the distinction between the mud

er and

two offences has been very well put by Melville J. in a 'f,':,'P""'°

Bombay case'. In that case, the accused knocked his wife
down, put one knee on her chest and struck her two or
three violent blows on the face with the closed ﬁst, pro-
ducing extravasation of blood on the brain. The wife died
in consequence. The court held, that since there was no
intention to cause death and the bodily injury was not
sufﬁcient in the "ordinary course of nature" to cause
death. the offence committed was not murder, but culpa-
ble homicide. The following analysis of the two sections
is contained in the judgment:----

Section 299 Section 300
A person commits culpable Subiect to Cﬁftaln _eXC€Dfi011-S, culpable
homicide, if the act by which homicide is murdei.-_if the act by which
the death is caused is the death is caused is done----
don<,-

(a) with the intention of (I) With the intention of causing death ;

causing death ; _ _ _

(2) With the intention of causing such
bodily injury as the oﬂender knows to
be likely to cause the death of the person
to whom the harm is caused;

(b) with the intention of
causing such bodily in-
jury as is likely to
cause death ;

(3) With the intention of causing bodily
injury to any person, and the bodily
injury intended to be inﬂicted is suﬁicient
in the ordinary courxe of nattkre to cause.
death 5

I Reg. v. Govinda, (1876) I.L.R. I  344, 346,

micide.



30

(c) with the_ knowledge that (4) with the knowledge that the act is so
the act 18 likely to cause zmminently dangerous aha: it must in

d3ath- all _ probability cause death, or such
ED411111)? Injury as is likely to cause
eat .

"I have underlined here the words which appear to
me to mark the differences between the two offences.

_ " (a) and (1) show that Where there is an inten-
tion to kill, the offence is always murder.

"(Cl and (4) appear to me intended to apply (I
do not say that they are necessarily limited) to cases
1n.which there is no intention to cause death or bodily
injury. Furious driving, ﬁring at a mark near a pub-
lic road, would be cases of this description. Whether
the offence is culpable homicide or murder, depends
upon the degree of risk to human life. If death is a
likely result, it is culpable homicide; if it is the most
probable result', it is murder. '

"The essence of (2) appears to me to be found in
the words which I have underlined here. The offence
is murder, if the offender knows that the particular
person injured is likely, either from peculiarity of
constitution, or immature age, or other special circums-
tances to be killed by an injury which would not ordi-
narily cause death. The illustration given in the sec-
tion is the following.

'A knowing that Z is labouring under such disease
that a blow is likely to cause his death, strikes him
with the intention of causing bodily injury. Z dies in
consequence of the blow. A is 'guilty of murder, al-
though the blow might not have been sufficient in the
ordinary course of nature to cause the death of a
person in a sound state of health.'

"There remains to be considered (b) and (3),
and it is on a comparison of these two clauses that
the decision of doubtful cases must generally depend.
The offence is culpable homicide, if the bodily injury
intended to be inﬂicted is likely to cause death; it is
murder, if such injury is' sufficient in the ordinary
course of nature to cause death. The distinction '.lS
ﬁne, but. appreciable. It is much the same distinction
as that between (c) and (4), already noticed. It is a
question of degree of probability. Practically, I think,

it will 'generally resolve itself into a consideration of ,

the nature of the weapon used. A blow from the ﬁst

b t' should be takerras referring only to clause fourth'
If t1-,IeyT:'::engtScsr(¥atd1(:::1, the criticism in I-{en Khudu v. Emp: A.I.R. I939
Sind 57' 50 (per Davis c,],) that they may mislead, may be valid.



31

or a stick on a vital part may be_1ikely to cause death;
a wound from a sword in a vital part is sufficient in
the ordinary course of nature to cause death.".

72. Certain propositions, though they may appear to be
elementary, are well worth an emphasis in this context:----

(i) Culpable homicide is a generic offence. It will
amount to murder if the conditions laid down in sec-
tion 300 are satisﬁed.

(ii) "It does not follow that a case of culpable
homicide is murder because it does not fall within any
of the Exceptions in section 300. To render culpable
homicide murder, the case must come within the
pggvisions of clauses (1), (2), (3) and (4) of section

(iii) Culpable homicide may, therefore,
murder----

(a) where, notwithstanding that the mental
state is suiﬁcient to constitute murder, one of the
Exceptions to section 300 applies, or

not be

(b) where the mental state, though within
the description of section 299, is not of the special
degree of criminality required by section 300.

(iv) Even where the case clearly falls under sec-
tion 300, Indian Penal Code, and does not fall within
the exceptions to that section, the sentence of death
is not mandatory; it is one of the alternative sen-
tences'.

73. For the present purpose, it is unnecessary to dis-
cuss the position under the old section 367 (5), Code of
Criminal Procedure, 1898 (as it stood before the Amend-
ment of 1955) whereunder, in the'case of a capital oﬁfence,
if the court sentenced the accused to any punishment
other than death, it had to state its reasons for not passing
the sentence of death. That provision has now been re-
pealed".

74. The four stages to be observed in an approach to
the question of culpable homicide and murder, were point-
ed out in a Rangoon case". The discussion there is a use-
ful one, and may be surrunarised as follows:--

(i) The accused must have done an act by doing
which he has caused the death of another person.

I Peacock C. I. in Queen v. Sheikh Bazu, (I867) 8:W.R. (Criminal) 47,
51 (F.B.).

2 Section 302, Indian Penal Code.

2 As an example of the controversy which was caused by this provision

see Emp. v. Dukari ChandraKarmalear, A.I.R. 1930 Cal. 193.
Nga Chit Tin v. The King, A.1.R. x939 Rangoon 225 (Sharpe I).

Some
fundaniental
propositions.

Stages of
approach in
culpable
homocide
and murder.



32

(ii) His act must amount to culpable homicide.

(iii) It must further be established, that the act
was done with one of the three intentions or with the
knowledge set out in section 300.

(iv) It must then be considered whether on the
facts of the particular case, it is brought down from
the higher piano of murder to which it has been rais-
ed, to the lower plane of culpable homicide not
amounting to murder, by reason of the act falling
within any of the Exceptions to section 300.

75. The sections relating to culpable homicide and
:murder were thus ana1ysed':--~--

"Stage 1: The first stage requires that it shall be
established to the satisfaction of the Court that the
accused person has done an act by doing which he has
caused the death of another person. There is, of
course, no difﬁculty in appreciating that that is the
starting point, but that is almost the only step in such
cases which is invariably taken correctly. Even this
first stage may give rise to diﬁiculties, and such cases
as 193'? I.L.R. 384.-'*'------I refer to the Full Bench decision-
may have to be considered. But difﬁcizlties at this
first stage are infrequent. From the very next stage
onwards however difficulties frequently appear to
creep in, as they have done in all the cases now under

appeal.

"Stage 2: The trial Court must next consider whe-
ther that act on the part of the accused amounts to
culpable homicide. More than one Judge of a Court
'of Session has considered that the second step is im-
mediately to address his mind to the question whether

the accused is guilty of murder as deﬁned in section ,

"300, Indian Penal Code. That almost invariably leads
to confusion. Section 299 deﬁnes culpable homicide
and section 300 says that. except in certain speciﬁc-ii
cases, culpable homi 'dc 'is. in certain events, murder.
'In fact it is not out of place to describe the two offen-
ces deﬁned in sections 299 d 300 as "culpable homi-
cide not amounting to mu: r" and "cu1psbie homi-
cide" as deﬁned in'sect.ion 299. Therefore it is neces-
sary in every case of the class with which I am now
dealing to inquire, as the second step in the proceed-
ings. whether culpable homiciﬂe has or has not been
committed by the accused, for unless it has been, no

r Nga Chit Tin v. 271:; King, A.I.R. I939 Rang 225-

: TheK£ng v. Abar Ahmed, (:93?) 24 A.I.R. Rang. 396 : :7: LC. 574 :
33 Cr. L. I. 1097 2 1937 1.1.1:. 384 (FJBJ.



33

question of murder can arise. Therefore I will at
once make clear what culpable homicide is.

"Sect1on 299 enacts that the doing of an act which
causes death is culpable homicide if it is done either
(1) with one of two intentions, that is to say, with the
intentio_n_of causing either (a) death or (b) such
bodily injury as is likely to cause death, or (ii) with
thehknotwledge that death is likely to be caused by
suc ac .'

"My headings (i) and (ii) are, it will be noticed,
alternative, the one to the other so that it follows that
culpable homicide may be committed without any in-
tention on the part of the accused, if he has the know-
ledge indicated under my heading (ii). Section 304
lays down what shall be the punishment for culpable
homicide not amounting to murder; if the act is
meiiely done with the knowledge that death is likely
to be caused thereby and without either of the inten-
tions mentioned in my heading (i), supra, [that is to
say, if the case falls under my heading (ii), supra] a
lesser punishment is provided under the latter part of
section 304. If it is not possible to hold in any given
case that the act which caused death was done either
with one of the two necessary intentions or with the
necessary knowledge, culpable homicide (and, a forti-
ori, murder) has not been committed, and other sec-
tions of the Indian Penal Code (for example, sections
321 and 322) must be taken into consideration with a
View to seeing what (if any) other offence the accus-
ed has committed.

"Stage 3: Section 300 now, and only now, comes
into operation. If it is established that an act which
caused death was done either with one of the two in-
tentions or with the knowledge necessary to cause
that act to amount to culpable homicide, then, and
only then, section 300 comes into operation, and there-
fore the next thing to do is to ascertain whether such
act was done either (i) with one of three intentions,
that is to say, with the intention of causing either (a)
death, or (b) such bodily injury as the offender knew
to be likely to cause the death of the person to whom
the harm was caused, or (e) such bodily injury as
was suﬂicient in the ordinary course of nature to
cause death, or (ii) (A) with the knowledge that the
act was so imminently dangerous that it must, in all
probability, cause either (a) death, or (b) such bodily
injury as was likely to cause death, and (B) without
any excuse for incurring the risk of causing either
(a) death or (b) such bodily injury as was likely. to
cause death.", '



Principle
behind exist-
ing capital
offences.

34:

_ 76. The judgment'
dients as lollows:---

"It will have been observed that an intention to
cause death is a part both of section 299 and also of
section 300. Therefore if in the earlier part of the
inquiry, under section 299, which I have called the
second stage, it appears that the act was done with
the intention of causing death, than stage 3 will pre..
sent no difficulties, for, it at once amounts to murder,
under section 300, unless the case comes within one
of the exceptions in the latter section. But if the act
is not done with the intention of causing death, but
is done either with what may be called the alterna-
tive intention----my heading (i) (D) under section
299----or with the knowledge mentioned in section 299
---my heading (ii) under that section----then it must
be ascertained whether it was done either with one
of the intentions wnichlhave marked as (i) (b) and
(i) (c) under section 300, or with the knowledge, but
without the excuse, mentioned in that section. Hence,
it will be seen that intention is not a necessary ingre-
dient of murder. If the act is done with the know-
ledge that death is likely to be caused thereby, it is
culpable homicide: and if it is done with the further
knowledge that the act was so imminently dangerous
that it must, in all probability, cause either death or
such bodily injury as was likely to cause death, then
that culpable homicide is murder. Thus knowledge is
sufficient to establish murder without any intention
whatever being proved.".

then proceeds to analyse the ingi~e_

77. The principle behind existing capital offences may
be considered. At first sight, the capital offences listed
above? may not show any common element; but a close
analysis reveals that there is a thread linking all these
offences, namely, the principle that the sanctity of human
life must be protected. It is the "wilful exposure" of_ life
to peril that seems to constitute the basis of a provision

for the sentence of death".

78. This principle is' evident in the case of offences
under sections 302 and 303, and is reflected in t1;§10'§h91'
is a

offences also. Thus, the offence under section
capital one, because it threatens the very existence of an
organised Governnment, which is essential for the protec-
tion of human life. The oﬁence under section 132 is, again,

I Paragraph 75, supra.

2 Paragraph 69, supra.

3 Compare the discussion in the Royal Commission'; Report, page 161,
para aph 470, and the quotation there from the Fourth Report of the Com-
missioners on the Criminal Law, though the discussion there is conﬁned to the

offence of



35

a capital one, because it aims at the destruction of the very
forces which are intended to protect the machinery of the
State in the last resort. Again, the offence under section
194, second paragraph is punishable with death, on the logic
that the person concerned gave false evidence with the
intention of. or knowledge of likelihood of, deprivation
of innocent human life. In the case of the oﬁence under
section 305, the crime is really one of homicide, but com-
mitted indirectly; the offender does not take the life With
his own hands, but encourages a person Who cannot look
after his own interests, to end his life. The hand that does
the actual act of killing is merely a tool in the hands of
another. The person killing himself is one around whom
the law is compelled to throw its special cloak of protec-
tion.

79. The offence under section 307, 'Indian Penal Code
is one where the attempt is not successful; the disregard
of the sanctity of human life is, however, apparent here
also, as is re--inforced by the requirement that the act must
be such that if the offender by that act caused death, the
offender would be guilty of murder (ﬁrst paragraph of
section 307). The sentence of death, however, can be
awarded only where hurt is caused and the person offend-
ing is already under sentence of imprisonment for life
(second paragraph, section 307). This last requirement is
merely an illustration of the proposition that the law has
not ruled out a consideration of the "individual". Thus,
if A. after loading a gun, ﬁres it at Z, intending to murder
Z, A has committed the oﬁence of an attempt to murder;
if, by such ﬁring, A'wounds Z, then hurt has been caused;
and it' A is a person under sentence of imprisonment for
life. he may be punished with deathl.

80. The ingredient that the offender should be under
sentence of imprisonment for life is common to sections.
303 and 307, a special feature in section 303 being that the
act of murder is complete and the sentence of death is
mandatory.

81. By local amendment in Bengal, an oﬁence under Bengal
section 307, Indian Penal Code, first paragraph is, in certain a";'°'!dme"'
cases, punishable with death. Sections 6(1) and 7 of the ::c:ti$,g3t:7_
Bengal Criminal Law Amendment Act? are quoted
below:--

"6(1) The Commissioners may pass upon any per- powers of
son convicted by them any sentence authorised by law C_ommis-
for the punishment of the offence of which such person 310nm-
is convicted;

I This is a stronger case than that put in illustration (c) to section 307
Indian Penal Code.

2 Bengal Criminal Law Amendment Act, 1925 (made by the Governor
under section 72E, Government of India Act) (as amended) (No number
given).



Application
of Code of
Criminal
Proeedureto
proceedings
of Commis-
sioners.

36

Provided that where the Commissioners con-
victed any person of any offence punishable under
the ﬁrst paragraph of section 307 of the
Penal Code, committed after the commencement of

the Bengal Criminal Law Second Amendment Act, 11 of 1932.

1932, they may pass on such person a sentence of
death or of transportation for life.

7. The provisions of the Code, so far only as they
are not inconsistent with the provisions of, or the
special procedure prescribed by or under, this Act
shall apply to the proceedings of Commissioners
appointed under this Act, and such Commissioners
shall have all the powers conferred by the Code on a
Court of Sessions exercising original jurisdiction".

82. The offence under section 396, Indian Penal Code
is a special case of vicarious liability in respect of the
sentence of death, but even here it would not be difficult
to discern. the principle of protection of human life; the
section requires that there must be ﬁve or more persons,
who are conjointly committing "dacoity" (as deﬁned in
section 391 read with section 390), and that one of such
persons must commit murder in so committing dacoity.
Joint liability under this section does not arise unless all
the persons are conjointly committing dacoity and the
murder was committed in so committing a dacoityl-2.

83. The distinction between culpable homicide (sec-
tion 299) and murder°' (section 300) can also be utilised to
show the principle behind the sentence of death, which is
permissible only where the offence falls under the latter
section. Leaving aside a detailed discussion of the points
of difference between the two sections, which is unneces-
sary for the present purpose, it can be broadly stated, that
in most' cases, the gravity either of the mens rea or of the
bodily injury caused or the higher probability of death
would be found to be of great help in determining whether
the offence falls under the one or the other. And it must
be added, that even when the offence falls under "murder".
(section 300), the court is not bound to impose the penalty
of death; the lesser penalty can be imposed. This is only
intended to leave room for the exercise of the discretion of
the court, having regard to the peculiarities of' the case
and of the individual.

84. The various Exceptions to section 300, Indian Penal
Code" take out cases which would otherwise fall within the
category of murder. from that category, and put them back
in the category of culpable homicide not amounting to

I On this point, see Mathura Thakur, (x9oI) 6 C.W.N. 72.

2 See also discussion relating to vicarious liability; paragraphs 87 meg
Infra.

3 Paragraph 70, supra.

Indian 45 of wéo-i



37

murder. They also seem to illustrate the concern of the-
law to ensure, that death sentence is imposed only where
the disregard of human life is evident. In Exception 1 to
section 300, this principle is shown by the ingredients of
deprivation of the power of self-control by grave and
sudden provocation. In Exception 2, it manifests itself in
the requirement that the offender must have acted in good
faith, and in private defence, and the death must have been
caused without pre--meditation and without any intention
of doing more harm than is necessary for such defence. In
Exception 3, the requirement is that the offender must be
a public servant or a person aiding a public servant acting
for the advancement of public justice, and death must have
been caused while the act was done in good faith and in the
belief that it was lawful and necessary for the due
discharge of the duty of the public servant and without
ill-will. Though this may be treated as a special case. the
requirements of good faith and absence of i1l--wi11 show,
that regard for human life is still an important criterion.
Exception 4, in each of its ingredients, exhibits this prin-
ciple; the requirements of (i) absence of pre-meditation,
(ii) sudden ﬁght, (iii) the heat of passion upon a sudden
quarrel, and (iv) the absence of undue advantage, etc. are
intended to bring down the punishment in view of these
special features. '

Exception 5.---Murder of a person above the age of 18
years, who suffers death or takes the risk of death with his
own consent----is another special case, but is still in harmony
with the general proposition stated above; it requires the
consent of the victim, and the consent must be a full and
free consent of a normal human being (this being a propo-
sition resulting from section 90). If the consent is not full
and free, or is giver; by a person who is below age or other-
wise abnormal, the Exception would not be satisﬁed, and
the case would continue to fall under main section 300.
The sentence of death would then be permissible, and the
situation would be analogous to that dealt with in sec-
tion 305, though not identical with it.

85. Some consideration of the offence of dacoity with Dacoity with

murder seems to be desirable. An elaborate discussion on muldeh

the subject is contained in the draft Report of the framers

of the Penal Code'. Provisions on the subject were con-

tairred in Bengal Regulation 53 of 1803. The Bombay
Regulation of 18271 also contained provisions on the sub-

ject. But, as a matter of fact, the germ of these provisions

is contained in the elaborate provisions for highway

robbery prescribed by the Muslim law of Crimes as
administered in India".

I See historical discussion.

2 See historical material.

3 See also Beaufort's Digest of Criminal Law (1846). P386 37. Para-
graph 129.



Vicarious or
constructive

2' iability.

38

86. The crime of Sariqa (larceny) was, under Muslim
law, aggravated into highway robbery (Sariqa-i-kubra),
and highway robbers were classiﬁed into four categories--
ﬁrst, those who were seized before they had robbed or
murdered any person. Secondly, those who had committ-
ed robbery only. Thirdly, those who had committed mur-
der without robbery, and lastly, those who had committed
both robbery and murder. Robbers of the ﬁrst class were
to be imprisoned until they showed repentence, robbers
of the second class were to suffer amputation of the right
hand and left foot, if the share of each robbers amounted
to ten dirhms. Robbers of the third class were to suﬁer
punishment of death with or without amputation. Regard-
ing robbers of the fourth class, the Ruler could order
amputation and death, or death immediately, or cruciﬁca-
tion. If any one among a gang of robbers committed
murder, all were liable to the penalty (of death), subject
to certain exceptionsf'.

TOPIC NUIVIBER 14
Vicarious or constructive liability

87. Liability to death sentence may arise in certain
situations though the actual act of killing was done by
another person. These cases may be referred to as cases
of "vicarious" or "constructive liability", (though these
terms may not be strictly accurate). Such cases fall under
two categories; the ﬁrst comprises those where "A" be-
comes liable for the offence committed by B, when A him-
self has not committed any substantive offence; the second
comprises those where. both A and B are guilty of some
substantive offence. but, by reason of some special feature
in the action of B, A becomes liable for the higher sentence
of death. In the former case, the substantive offence is
attributed to A, while in the latter case, the liability for
the sentence of death travels to A.

88. The important cases of such liability"
Indian Penal Code seem to be these----

under the

Section 34, Indian Penal Act done by several persons in furtherance
Code (See also section Of common z'ntentz'on.
35)-

Scctions 109 to 115, In-
dian Penal Code.

Section 120B, Indian r'e--
nal Code.

Section 149, Indian Penal Every member of unlawful assembly guilty
Code. of offence committed in prosecution of
common object.

Section 396, Indian Penal Dacoity with murder (Under section 396,
Code. if any one of ﬁve dacoits commits murder
in committing dacoity, every one of them

is punishable with death, etc.).

Abetment.

Punishment of criminal conspiracy.

I Bengal Revenue Consultations, December 3, 1790.
3 Paragraph 87, supra.



S5 9

89. The vicarious liability in all these cases' is justified
on the ground that the person concerned is a party to the
offence, though his physical participation is indirect. The
mens rlea, in this context. is represented by the require-
ment of "common intention" or of aid, conspiracy or insti-
gation which constitutes "abetment" or of conspiracy
simpliciter, or of "common object" or "conjoint" commis~
sior; of a dacoity.

90. There is one section? whereunder vicarious liability
arises in a case of house-breaking, etc., because another co-
offender has caused death, etc. But here the person so
vicariously liable is not sentenced to death.

91. Some discussion of two special cases of constructive
liability seems to be called for. in View of their importance.
The iirst is that under section 34, Indian Penal Code, which
reads as follows:~--

"Section 34--When a criminal act is done by seve-
ral persons in furtherance of the common intention of
all, each of such persons is liable for that act in the
same manner as if it were done by him alone.".

The question may be raised whether the application of
this section in relation to murder leads to any hardship or
injustice. Section 34 does not come into operation, unless
there is a common intention and a criminal act is done by
several persons in furtherance of that common intention.
Joint liability, under section, is, therefore, the liability
resulting from what has been called "the unity of criminal
behaviour". The causing of death of one person at the
hands of several by blows and by stabs, under circums-
tances in which it can never be known which blow or blade
actually extinguished life, is common in criminal experi--
ence as has been pointed out by the Privy Council*
Though the section, as originally enacted, did not contain
in the words "in furtherance of the common intention of
all", _they were added in 1870, simply to make the object
clear". The section does not postulate identity in act. But
it requires a common intention and participation in crime.
If several persons, set out together upon one common
design be it murder or other crime, and each takes the part
assigned to him, some to commit the act and others to
watch at proper distance. etc., they are all (if the offence
be committed), in the eye of the law "present at it", because

I Paragraph 88, supra.
2Section 460, Indian Penal Code.

3 This phrase was used by Lord Summer in Barendra Kumar V.K:ng
Emperor, 52 Ind. App. 4,0 ; I.L.R. 53 Cal. 197 ; A.I.R. 1925 RC. 1, 9.

4 Barendra Kumar v. I<zTng Emperor, A.I.R. 1925, P.C. 1, 5.

5 See discussion in King Emperor V. Barendra Kumar, A.I.R. 1924 Cal.

.257, 273 (Mookerii 1.).
5-122 MofLaw.

Section 34,
Indian Penal
Code.



40

it was made a common cause with them, each mar: operat-
ing in his station at one and the same instant towards the
same common endl.

92. Further, in a combtruatiotn of this kind, the "mortal
stroke", though given by one of the parties, concerned, is
"in the eye of the law, and for sound reasons too, regarded
as given by every individual present and aiding". The per-
son actually giving the stroke, is "no more than the hand
or instrument by which the others strike". The part each
man takes, tends to give couritenence, encouragement and
protection to the whole gang to ensure success of their
common enterprise". It is suiﬁcient to hold a party as
principal, if he acted with another in pursuance of the
common design, and operated at one and the same time
for the furtherance of the same pre-concerted end and was
so situated as to be able to furnish aid to his associates
with a View to ensuring success in the accomplishments
of the common enterprise.

93. For the present purpose, it is not necessary to elabo-
rate the meaning of each ingredient of the section, or to
make an attempt to show how the section differs from
other cognate sections dealing with abetment, unlawful
assembly and so on"-5-".

94. "Common intention" in section 34, Indian Penal
COCIE, PT?-SUPPOSES a pre-concerted plan, i.e., a prior meet-
ing of minds, though it is not necessary that there should
be a 10118 interval between the plan and the act7. The
common intention may even be developed on the spot3.
Of course, the act must be "done". Some of the points
geigarclioing section 34 have been developed in the case noted

e ow .

I  Foster, Discourse on Crown Law (1809), page 350 cited by
Mookerll J. in A.I.R. I924_Ca1. 257,274 (Full Bench). The Flill Bench
case was approved by the Privy Council in A.I.R. 1925 P.C. 1,.

2 Foster, Discourse on Crown Law (1809) page 3 , 't d b M k 'i
J. in A.I.R. 1924 Cal. 257, 275 (Full Bench). ) S1 C1 C Y 00 er'

3 Foster D'co o C L 8 , ' db "
J. in A.I.R.'1921:  3;:W2F.;?§: <1 °9>=  35°  yM°°'<°~'

4 As to the distinction between section 34 and section II4, see Barendra
Ku_mar v.Km_g Emperor, 52 Ind. App. 40 ; I.L.R. 53 Cal. 197 ; A.I.R. 1925
Privy Council I.

5 As to the distinction between section 34 and section 149, see Nanak
Chand V. State of Punjab, A.I.R. 1955 Supreme Court 274, and Om
Prakash V. State, A.I.R. 1956 All. 241.

6 As to the meaning of "common intention", see A/ia]1bubShah V,
Emperor 52 I.A. 340 ; I.L.R. 52 Cal. 197 ; A.I.R. 1945 P.C. 118.

7 Generally as to common intention, see Rishideo, V. Szare of U.P.
A.I.R. 1955 S.C. 216 ; Pandurang, V. State of Hyderabad, A.1,R_ 1955 s_c
216 glbra Akanda V. Emperor, A.I.R.1944 Cal. 339.

8Krz'pal V. State of U.P., A.I.R. I954 S.C. 706

9 Ramayya V. State of Bombay, A.I.R. 1955 S.C. 287.

. io Bashir V. State, A.I.R. 1953 All. 668, 670 to 676, paragraphs 8-24
(discuss English cases also) (Desai J.).



41

95. Persons liable under section 34, Indian Penal Code
would, at common law also, be liable for the substantive
offence committed in pursuance of the common design. If
several persons act together in pursuance of a common
intent, every act done in furtherance of such intent by each
of them is, in law, done by all'. A participation in an
offence which is the result of a concerted design to commit
a speciﬁc oﬁence, is sufficient to render the participant a
principal in the second degree?

96. This" is the general rule. So far as murder is con-
cerned, a modiﬁcation in respect of sentence was made by
section 5(2) of the Homicide Act". But, as provisions of
that Act relating to "capital murder" are now temporarily
repealed by the Murder (Abolition of Death Penalty) Act,
1965, it is unnecessary to discuss the 'earlier Act, in detail.
It would sufﬁce to quote the relevant provisions-5 which
are as follows:--

"5. (1) Subject to sub-section (2) of this section, Deathpenal--
the following murders shall be capital murders, that 'Y for Serial"
is to Say'_ murders.

(a) any murder done in the course or further-
ance of theft;

(b) any murder by shooting or by causing an
explosion;

(c) any murder done in the course or for the
purpose of resisting or avoiding or preventing a
lawful arrest, or of affecting or assisting an escape
or rescue from legal custody;

(d) any murder of a police officer acting in
the execution of his duty or of a person assisting
a police oﬁicer so acting;

(e) in the case of a person who was a prison-
er at the time when he did or was a party to the
murder, any murder of a prison oﬁicer acting in
the execution of his duty or of a person assisting
a prison ofﬁcer so acting.

(2) If, in the case of any murder falling within
the foregoing sub-section, two or more persons are
guilty of the murder, it shall be capital murder in the
case of any of them who by his own act caused the
death of, or inflicted or attempted to inﬂict grievous

I Macklin (18383 2 Lewin 225;
Law (19643. pages 232 am: 233.

2 55¢ Aychbold. Criminal Pleadings, etc. (1962). Paragraphs 4123 and
4127.

3 Paragraph 95, supra.

4 Homicide Act, 1957 (5 and 6 Eliz. 2 c. 11).

5 sections 5 (1) and 5 (2), Homicide Act,



42

bodily harm on, the person murdered, or who himself
used force on that person in the course or furtherance
of an attack on him; but the murder shall not be
capital murder in the case of any other of the persons
guilty of it.".

97. Even as regards manslaughter, if two men concerted
together to ﬁght two other men with their fists, and one
struck an unlucky blow causing death, both would be
guilty of manslaughter. But if one used a knife or other
weapon without the knowledge or consent of the other,
only he who struck with the weapon would be responsi-
ble for the death resulting from the blow given by itl.

98. The net result, therefore, under section 34 is that the
common intention and participation in the crime make
the person concerned guilty of the offence. Whether, how-
ever, he should be punished with the highest punishment
provided for the particular offence is not a matter on
which section 34 has the ﬁnal say. The question of sen-
tence is entirely in the discretion of the court. On the one
hand, the mere fact that the person liable by virtue of
section 34 did not actually inﬂict the fatal blow, may not be
conclusive. On the other hand, if, on the facts of the case

the moral culpability of the offender held to be liable b}. '

virtue of section 34 is lower than that of the actual assail-
ant, a lesser sentence would be appropriate. Fortunately,
the Indian law does not contain any rigid provisions on
the subject.

99. In a recent Calcutta case2, the evidence did not
make it clear which of the two appellants gave the fatal
blow or did the last act of strangulation. While the con-
viction for murder was upheld, the sentence was altered
to life imprisonment. The court followed the principle
laid down by the Supreme Court in Dalip Singh's case3,
where the following observations had been made:--

"This is a case in which no one has been convict-
ed for his own act but is being held vicariously res-
ponsible for the act of another or others. In cases
where the facts are more fully known and it is possi-
ble to determine who inﬁicted blows which were fatal
and who took a lesser part, it is a sound exercise of
judicial discretion to discriminate in the matter of
punishment. It is an equally sound exercise of judi-
cial discretion to refrain from sentencing all to death

I R, v. Caron, (I874) 12 Cox 624 (Lush 1.); Turner and A1-mirage,
Cases in Criminal Law (1964), pages 178, 179-

2 Arun Kumar v. State, A.I.R. 1962 Cal. 504, 509, paragraph 42 (P. B.
Mukharii and N. K. Sen JD.

3 Dam; Sgngh v_ State of Punjab. A.I.R. 1953 S.C. 364, 368, para-
graph 40.



43

when it IS evident that some would not have been if
the facts had been more fully known and it had been
possible to determine, for example, who hit on the
head or who only on a thumb or an ankle; and when
there are no means of determining. who dealt the
fatal blow, a judicial mind can legitimately decide to
award the lesser penalty in all the cases . . . . ..".

No single rule can, thus, be laid down for all cases.

100. We may discuss here a case which evoked some
interest in England. That is the case of Bentley and
C7'a2.</'*~*'-". A London policeman was killed on November
3, 1952 in a gun battle while attempting to apprehend two
youths who had broken into a warehouse. The youths
were Craig, aged 16 and Bentley, aged 18. The shot that
killed the constable was ﬁred by Craig, ﬁfteen minutes
after Bentley had been already taken into custody by an-
other policeman. Both were found guilty of murder.

Craig was sentenced to imprisonment for life, being
under the age of 18 years. But Bentley was sentenced to
death. Efforts to obtain reprieve for him failed, and he
was executed in 1953. Now, it was not Bentley who had
ﬁred the actual shot, and, further, he had actually been in
the hands of the police for a quarter of an hour. These
facts, coupled with his age and the fact that the actual
perpetrator received a lighter sentence, caused shock and

indignation'.

It would appear, that though Bentley was in the cus-
tody of the police, yet he encouraged Craig to shoot after
he himself had been seized by the police oﬂ"1cer5. The posi-
tiim in lndia would not be different. if encouragement is
proved, coupled with the other facts as in this case.

101. An English case on the border-line is that of Betts
and Ridley'. In that case. both the accused--Betts and
Ridley--Were held to be rightly convicted of murder,
where they had a common design to commit robbery with
violence on the person of the deceased, though the evi-
dence was that Betts alone was the man who actually

I R. v. Craig and Bentley, (The Times, December 10-13, 1952).
See the summary in Christoph " Capital Punishment and British Politics ",
(1962), page 98-

2 For a detailed statement of the facts, see Pager and Silvermanr
"Hanged--and Innocent P" (1953), pages 89 to no.

3 See Also Russell on Crime (1964), Vol. 1, page 146 and foot-note
25.

4 See Hollis, The Homicide Act, (1964), pages 42-43, and 68.

5 See the facts stated in Russell on Crime (1964), Vol. I, pages 146-147,

6 R. v. Betts qnd Ridley, (r930) :44 Law Times 526 ; 22 Cr. App. Rep'
148, discussed in Russell on Crime, (1964) Vol. I, pages I44 and 488, See
R. C. Report, page 389 ; see also Bashzr v. State, A.I,R. I953 A11, 668, 574,
675, paragraphs 7-23-



44

committed the violence, while Ridley remained in a car at
the corner on the street nearby, where Betts after commit-
ting the robbery immediately ran. We are not concerned
with the doctrine of "implied malice" or "constructive
malice" as was then known to the English Law; what is
important is, that the appeal of Ridley was dismissed,
because he was a party to the agvfeement that the deceased
man should be robbed, and "he anticipated that he would
at least be pushed down", and was thus a principal in
the second degreek'-'.

102. A somewhat similar case is a Lahore one". In that
case, the common intention of the culprits was to commit
robbery, and one of them, S, went to fetch the owner of
the house from his ﬁelds, to threaten him to surrender
the property. While S was thus temporarily absent, one
of the other culprits shot down the son of the owner of
the house. It was held, that S, though temporarily absent,
was participating in the joint criminal action in the course
of which the murder was committed, and that the murder
was committed in furtherance of the common intention
of the culprits to commit robbery, and that he was there-
fore rightly convicted of murder by virtue of section 34.
As regards the sentence, though his liability was cons-
tructive, yet the fact that all the four culprits were armed
with guns showed that they all intended to use the gun
when necessary in furtherance of their common object.
The sentence of death on S was therefore held to be justi-
ﬁed.

103. That the question of sentence is one of discretion
has been stressed more often than once in the decisions.
The following observations of Roberts C. J. are helpful".

"The conclusion at which the learned Judge has
arrived is that because in some cases the_ lesser
penalty may be given when it is not certain who
struck the fatal blow, the lesser penalty should 'al-
ways be awarded in such cases; this is far from being
correct. When once the guilt of murder is proved, the
proper penalty to be awarded is a matter for discre-
tion of the learned Judge and it is by no means true
to say that merely because there IS doubt as to which
of several of the attackers inﬂicted the fatal blow this
is a sufficient ground for withholding the death sen-
tence in the case of any or all of them. On the other

I Ridley was not, however, executed. .

2 For 3 discussion of the legal propositions on which the case was based ,
see Glanville Williams, Criminal Law, The General Part, (1951): P3365 353 to
354, and 396 to 397.

3 Indar Singh v. Emperor, I.L.R. I4 Lahore 814 ; A.I.R. 1933 Lab. 819

'CD- 3)

4 Tun Khine v. The King, A.I.R. I938 Rangoon 331, 333 (Roberts C-J-)



45

hand, it is, of course, clear that there are cases in
which once it has been established that one person
out of several took a leading part and the others a
comparatively subsidiary part, the greater penalty
may be inﬂicted upon the ring-leader and the lesser
penalty upon those who took a comparatively subsi-
diary part. That is a matter of discretion entirelyf'.

104. How far the application of section 34 would be
justified in cases where the actual persons participating
are named or unnamed is a point which has received de-
tailed consideration at the hands of the Supreme Court in
recent cases', which contains a helpful analysis. A simi-
larly helpful analysis in relation to cases under section
149 is also contained in another Supreme Court case".

105. In many cases, sections 34 and 149 may overlap;
nevertheless, the common intention which is the basis of
section 34 is different from the common object which is
the basis of unlawful assembly. Section 34 applies where
the facts disclose an element of participation of action on
the part of the accused persons. The acts may be differ-
ent, and may vary in their character, but they are all
actuated by the same common intention".

106. The act which caused the death of the victim may
have been committed by another person. But, since the
said act was done by the other person in furtherance of
the "common intention". shared by that person and by
the person who is to be liable under section 34, in law the
act must be deemed to have been committed by the person
to be liable under section 344. It may be noted, that as
observed by the Royal Commission5, when two or more
persons are concerned in a crime which involves the use
of unlawful violence, there may be substantial differ-
ences in the degree of moral guilt, but it is obviously un-
justiﬁable to assume that the man who does the killing
must always be more guilty than any of the others; he may
be the agent of a stronger personality who has planned
and instigated the crime. It was on this principle. that the
Royal Commission", even while recommending the aboli-
tion of the doctrine of constructive malice as known in
England, took care to record its strong View that no change
should be made in the existing liability of "principals in

I Krishna v. State or Mazzara;/gm, (I964) z S.C.R. 678; A.I-R- 1963
S. C. 1413, 1415 (Paragraph 6).

2 Mohan Singh v. State, (1962) Suppl. 3, S.C.R. 848; A.I.R. 1963
S.C. 174.

3 Mo/721:: Singh v. Szace of Punjab, A.I.R. I963  174, 178,179,
paragraphs 9 to II.

4 Mahabir Gope v. State of Bihar, A.I.R. I963 S.C. II8.
5 Royal Commission's Report, pag€ 44» Paragraph 113-

6 Rayal Commission's Report, pages 44 and 45, paragraphs I20 and
12:.



Section I49,

46

the second degree. In its view, considerations both of
equity and of public protection demand the maintaining
of the principle of the existing law that when two or more
persons are parties to a common design for the use of un-
lawful violence and the victim is killed, all the parties to
the common design should be held responsible and all
should be liable to the same punishment." The Commis-
sion also pointed out" that it may often be impossible to
prove which of the two struck the blow or ﬁred the shot
when two persons are concerned, for example, in a rob-
bery with violencez.

107. Section 149 of the Indian Penal Code is the second

Indian Penal speciﬁc case' which deserves some detailed discussion. The

Code.

section" runs as follows:----

"I49. If an offence is committed by any member
of an unlawful assembly in prosecution of the common
object of that assembly, or such as the members of
that assembly know to be likely to be committed in
prosecution of that object, every person who, at the
time of the committing of that offence, is a member
of the same assembly, is guilty of that offence.".

The main ingredients of the section are, ﬁrst, the exist-
ence of an unlawful assembly; secondly, the formation of a
common object; thirdly, the commission of an offence by
one of its members; and fourthly, the requirement that the
offence must be committed in prosecution of that common
object or must be such as the members of that assembly
knew to be likely to be committed in prosecution of that
object. It is only when these ingredients are satisﬁed that
the constructive liability under the section arises, namely,
that every other member of the assembly is guilty of that
offence. Before the section can be called in aid, the court
must ﬁnd with certainty that there were at least ﬁve per-
sons sharing the common object5.

108. The central fact on which the liability of the per-
son other than the actual doer of the act depends is the
"common object", coupled with the requirement expressed
by the expression "knew to be likely to be committed".
This expression imports, at least, an expectation founded
upon facts, known to the members of the assembly, that
an offence of the particular kind committed, would be
committed. Courts have not overlooked this requirement.
The leading case on the subject is that of Sabid Ali°_ In
that case, there was a dispute about land between S and

I Royal Comrnission's Report, page 44, paragraph I20. See also page
389, Appendix 7 (:1).

2 See, however, section 5 (2), Homicide Act, 1957.

3 As to the first case, see paragraph 91, supra.

4 Section 149, Indian Penal Code.

5 Dalip Singh v. State of Punjab, A.I.R. I953 S.C. 364, 366.

6 Queen v. Sabid Ali, (I873), Ir Bengal Law Reports, 347 ; 2o W_R_
Cr. 5 (F.B.).

Every men..-
ber of unlaw-
ful assembly
guilty of
oﬂjence com-
mltted in
prosecution
of common
object.



47

F, which ended in a riot, in the course of which T fired a
gun and killed X. T was a member of an unlawful assemb-
ly, of which the appellants were also members, and it
was found that S had directly invoked the aid of the as-
sembly, among whom was this T armed with a gun. S
and other appellants were held guilty of murder under
section 302 read with section 149, and sentenced to trans-
portation for life. It was held, that it was not satisfactorily
made out by the evidence that the taking of life was
immediately connected with the common object of the
assembly, or that the prisoners knew that this offence was
likely to be committed in prosecution of the common
object. It was pointed out, that the common object
was to drive F off the land and to prevent him
from cultivating it. But it was not proved that the
members of the assembly were prepared and intended to
accomplish that object at all hazards of life. They did not
think that the gun would be used in the particular manner
in which it was used by T.

109. The provision in section 149, Indian Penal Code'
is not peculiar to India. Even in England, the rule at
common law is, that where several persons are engaged in
the pursuit of a common unlawful object, and one of them
does an act which, the others ought to have known, was
not improbable to happen in the course of pursuing such
common unlawful object, all are guiltyz. The test of
common purpose is applied in England also3. It is
important to bear in mind, that members of an assembly
may have a community of an object only up to a certain
point, beyond which they may differ in their objects; and
the knowledge possessed by each member of what is likely
to be committed in prosecution of the common object will
vary not only according to the information at his command,
but also according to the extent to which he shares the
community of objects. If knowledge of the likelihood of
the particular offence cannot be reasonably attributed to
the other members, then their liability does not arise.

110. The impact of section 149, Indian Penal Code",
lies in this; that the person whose case falls Within the
terms of the section cannot put forward the defence that
he did not commit the offence with his own hands".

I Paragraph I07, supra.

2 cf. Russell on Crime, (1954): Vol. I, page 144.

3 See discussion in Glanville Williams, Criminal Law, (1961), Vol. 1,
pages 396 to 397, paragraph 133 and foot-note 3.

4 Paragraph 107, supra.

6 (Est T. Gounder, in re. (1924) I.L.R. 47 Mad. 746; A.I.R. 1925 Mad. I,
. .).

6 Q. E. V. Bisheshar, (1887) I.L.R. 9 All. 645, 650, 653 (section 395
also discussed).



48

Section 149, "so to speak, takes him out of the region of
abetment, and makes him responsible as a principal for
the acts of each and all, merely because he is a member of
an unlawful assembly'.".

111. For the present purpose, it is not necessary to dis-
cuss A11 detail the various ingredients of the section, which
has received interpretation at the hands of the Supreme
Court more than once*-"-4-5.

112. Next comes the question of sentence, in cases to
which section 1419* applies. This is a matter of discretion.
Here again, no hard and fast rule can be laid down. It may
be that on the particular facts of the case, the person cons-
tructively liable under section 149 deserves a lesser sen-
tence". But the facts may be such that all deserve the
highest penalty.

As has been observe.d7, it would not be correct to lay
down a broad proposition that in no case can the highest
penalty be given because the person who inﬂicted the
actual blow cannot be ascertained.

113. That the matter is one of discretion, has been
stressed by the Federal Court also''. In a proper case", the
lesser sentence may be imposed on the person vicariously
liable.

114. The following observations made in a recent deci-
sion of the Supreme Court may be quoted".

"That leaves one question still to be considered
and that has relation to the sentence of death imposed
on 10 persons. Mr. Sawhney argues that in conﬁrming
the sentence of death imposed by the trial Court on 10
accused persons in this case, the High Court has adopt-
ed a mechanical rule. The High Court has held that
the 10 persons who carried fire-arms should be ordered
to be hanged, whereas other who have also been con-
victed under section 302/149, should be sentenced to
imprisonment for life. It is true that except for
Laxmi Prasad, the charge under section 302/149 rests
against the other accused persons on the ground that
ﬁve murders have been committed by some members

Emp. v. Ram Pratab, (I883) I.L.R. 6 A11. 121, I23 (Straight J.).
Ram Bilas v. State of Bihar, (1964) 1 Cr. Law Journal 573 (S.C.).
Mizaji v. State of U. P. A.I.R. 1959 S.C. 572.
W. Slaney V. State of M. P., A.I.R. I956 S.C. II6.
Lakhan Mahto v. State of Bihar, (1966) 8 S.C.N. item 139.
6 cf. Emp. v. Ramli Lal, A.I.R. I941 Lab. 117, 120 (Young C. J.
and Sale J.).
7 cf. Parshadi V. Emp., A.I.R. 1929 A11. 160, 161 (Boys and Banerjee
JJ.)-
8 Rajagopalan V. Emperor, (1944) F.C.R. I69 ; A.I.R. 1944 F.C. 35.
9 See Masalti v. State of U. P., (June, 1964) I S.C. J. Notes of Recent
'Cases, page 75 (S-C->-
Io Masalti v. State of U. P. (1965) I S.C.]. 605, 613.

VI-3?-'))NH



49

of the unlawful assembly of which they were members,
and the argument is that unless it is shown that a
particular accused person has himself admitted the
murder of one or the other of the victims, the sentence
of death should not be imposed on him. In other words,
the contention is that if a person is found guilty of
murder under section 302/149 and it is not shown that
he himself committed the murder in question, he is
not liable to be sentenced to death. In suport of this
argument, Mr. Sawhney has relied on certain observa-
tions made by Bose, J. who spoke for the Court in

Dalip Singh and others V. State of Punjab'. In that
case, what this Court observed was that the power to
enhance a sentence from transportation to death
should very rarely be exercised and only for the
strongest reasons; and it was added that it is not
enough for the appellate Court to say or think that if
left to itself it would have awarded the greater penalty
because the discretion does not belong to the appellate
Court but the trial Judge, and the only ground on
which the appellate Court can interfere is that the dis-
cretion has been improperly exercised. These observa-
tions have no relevance in the present case, because
we are not dealing with a case where the High Court
has enhanced the sentence imposed by the trial Judge
at all. In fact. both the trial Court and the High Court
are agreed that the sentence of death imposed on 10
persons are justiﬁed by the circumstances of the case
and by the requirements of justice. As a mere
proposition of law, it would be diﬂicult to ac-
cept the argument that the sentence of death can be
legitimately imposed only where an accused person,
is found to have committed the murder himself.
Whether or not sentences of death should be imposed
on persons who are found to be guilty not because
they themselves committed the murder, but because
they were members of an unlawful assembly and the
offence of murder was committed by one or more of
the members of such an assembly in pursuance of the
common object of that assembly, is a matter which
has to be decided on the facts and circumstances of
each case. In the present case, it is clear that whole
group of persons belonged to Laxmi Prasad's faction,
joined together armed with deadly weapons and they
were inspired by the common object of exterminating
the male member in the family of Gayadin. 10 of these
persons were armed with ﬁre-arms and others with
several other deadly weapons, and evidence shows
that ﬁve murders by shooting were committed by the
members of this unlawful assembly. The conduct of
the members of the unlawful assembly both before and
after the commission of the offence has been consider-
ed by the Courts below and it has been held that in

I (I953) S.C.J. 532 ; I954 S.C.R. I45.



$ccti0n 396
lnlthe com-
mission.

50

order to suppress such fantastic criminal conduct on
the part of villagers it is necessary to impose the sen-
tences of death on 10 members of the unlawful assem-
ly who were armed with ﬁre-arms. It cannot be said
that discretion in the matter has been improperly
exercised either by the trial Court or by the High
Court. Therefore, we see no reason to accept the
argument urged by Mr. Sawhney that the test adopt-
ed by the High Court in dealing with the question of
sentence is mechanical and unreasonable.

"There are, however, three cases in which we
think we ought to interfere. These are the case of
accused No. 9 Ram Saran who is aged 18, accused No.
11 Asha Ram who is aged 23, and accused No. 10 Deo
Prasad who is aged 24. Ram Saran and Asha Ram are
the sons of Bhagwati who is accused No. 2. Both of
them have been sentenced to death. Similarly, Deo
Prasad has also been sentenced to death. Having
regard to the circumstances under which the unlawful
assembly came to be formed we are satisﬁed that
these young men must have joined the unlawful as-
sembly under pressure and inﬂuence of the elders of
their respective families. The list of accused persons
shows that the unlawful assembly was constituted by
members of different families and having regard to the
manner in which these factions ordinarily conduct
themselves in villages, it would not be unreasonable
to hold that these three young men must have been
compelled to join the unlawful assembly that morn-
ing by their elders, and so, we think that the ends of
justice would be met if the sentences of death imposed
on them are modiﬁed into sentences of life imprison-
ment. Accordingly, we conﬁrm the orders of conviction
and sentence passed against all the appellants, except
accused Nos. 9, 11 and 16 in whose cases the sentences
are altered to these of imprisonment for life. In the
result, appeals are dismissed subject to the said modi-

ﬁcation.".
115. Section 396 may be brieﬂy dealt with. Sec-
tion 396, of course, does not require that the
murder should be committed with the consent

or acquiescence of the other dacoits; the section would
be almost superﬂuous if that were the correct inter-
pretation. It does not also require that murder must have
been within the contemplation of all or some of them'-2.
But it does require, that there be some connection between
the dacoity and the murder. If the transaction of the

I Punjab Singh v. Emperor, I.L.R. I5 Lah. 84; A.I.R. 1933 Lahore
977 to 985 (Tek Chand and Monroe JJ.).

2 Samundar Singh v. State,,A.I.R. I955 Cal. 598, paragraphs 58 and 14.



D1

dacoity has ended before the transaction of murder has
commenced, the section would not applyl.

116. It is true, that under section 3916 questions may
arise as.to whether the murder was committed "in so
committing dacoity". Thus, when the murder is committed
but the dacoity is not successfully accomplishedf, the
question may arise whether the case falls under this sec-
tion; the question cannot be answered without a study of
the facts of the case. The under-mentioned decisions may
be seen on this point"'-"-''.

117. Again, when one dacoit, while making good his
9360139 with the booty obtained in the dacoity, commits
murder, the liability of the others will depend on the
facts. The underinentioned"--7--3-"' decisions may be seen
on this point.

118. Similarly, it is a question depending on the facts
of each case whether the murder can be regarded as com-
mitted "in the commission of a dacoity", when the person
sought to be made liable is absent. As was observed" ". . . .
. . . . .. it matter not, when in the commission of a dacoity
a murder is committed, whether the particular dacoit
charged under section 396 was inside the house or outside
the house, or whether the murder was committed inside
or outside the house, so long only as the murder was com-
mitted in the commission of that act.".

It may be, that on the facts of a particular case, per-
sons who were absent from the scene, may be regarded as
falling outside the section".

I Cf. discussion in S/zyam Behari v. State as U_ttar Pradesh, A:I.R
I957 S.C. 320, 322, 323, paragraphs 8 to 14. (The Pomt was not decided
in that case).

2 See section 39r, which mzntions "attempt to commit robbery" 3180.
3 Sirajuddin V. State, A.I.R. 1951 A11. 834, 835, paragraph 8.

4 Qteen Empress V. Sale/zaram, (1990) 2 BombaY Law Reporter 325
(Jenkins C.].). (Retreat not separated by time or space from the offence which
formed the common obiect of the assembly).

5 .1/Iorzoranja/z B/zattacharya V. Einparor, A.I.R. 1932 Cal. 818, 820
33 Cr. L. J. 722 (F.B.).

6 Kzrim B1ki;lV. Cwzuv, A.I.R. 1923 Lah. 329 (1).

7 Lashkvr V. Crown, I.L.R. 2 Lab. 275 $ A.I.R. 1921 Lab. 115 (Shad
Lal C. I. and Harrison J.).

8 Sunder v.I<. Emp., A.I.R. I925 Lah. 142 (Shadi Lai C. I. and Fforde

1-)-

9 Emperor V. Chandar, (1906) A.W.N. 47 ; 3 Cr. L. J. 294 discussed in
Sirajuddin v. State, A.I.R. I95I A11. 834: 835, paragraph 5.

10 Q. E. v. Teja, (1895) I.L.R. 17 All. 86, 87 (Sir John Edge and P'
C. Banerii IL).

II The decision in_Q. E. v. Umrao Singh, (1894) I.L.R. 16 A11. 437
can be explained On this ground.



52

The matter has been dealt with also in a recent Cal-
cutta case'.

119. Where the murder is committed before the dacoity
actually takes place, the answer to the question whether it
was still committed "in the commission of the dacoity",
depends on the facts of each case"-".

120. All these' are questions of application of the sec-
tion, and do not detract from the soundness of the prin-
ciple on which it is based.

Moreover, it is not a general rule that the sentence of
death must necessarily follow on a conviction under sec-
tion 396. The facts of the case may justify the highest
sentence')-"-7, or the lesser one".

121. If the section is applied with discrimination,--and
we believe that it has been so applied in the past,--we do
not think that the provision can be regarded as too harsh.
The question whether the murder was committed in the
commission of dacoity must always be a question of fact
and of degree, on which the Legislature cannot lay down
a general rule". Factors of time and place, of objects and
intention, of preparation and participation, may or may
not be relevant in a particular case. But the crucial test,
indicated by the words "in so committing dacoity" appears
to be basically sound, so far as a justification for the
highest penalty is to be sought for.

I Samzmder Singlz v. The State, A.I.R. 1965 Cal. 598, paragraphs 5
and 74.

2 Mathura Thakur, 6 C.\V.N. 72 (Assault resulting in death as com-
mitted by one person; case held to be outside the section, because tl"e assault
not only preceded the theft, but was not committed for the purpose of rob-
bery).

3 Sim Ramv. Emperor A.I.R. 1925 Oudh 723 (Shot ﬁred to keep off

the rescue party and, thus, to allow the theft to be committed, held to be act

committed in course of dacoity).

4 Paragraphs 116 to 119, supra.

5 Emperor v. Nga Tha, Hmwe, A.I.l_{. I935 Rang. 504 (Murder commi-
tted wantonly to intimidate villagers during dacoity; knowledgc that mufdéf
was likely to be committed).

6 Punjab Singh v. Emp. I.L.R. I5 Lah. 84; A.I.R. 1933 Lah. 977, 985
(Tek Chand and Monroe 1].),

7 Emperor v. Sheo Shankar, I.L.R. 32 Pat. 243 ; A.I.R. 1954 Fat. 109
(Imam and Narayan ]J.).

8 Akeila S/zeiklz V. The State, A.I.R. I953 Assam 45, 46, paragraph

9 See Q. E. v. Sakharam, (1900) 2 Born. L.R. 325 (Jenkins C. L).



53
CHAPTER IV
ABOLITION OR RETENTION
TOPIC NUMBER 15
Major question of abolition or retention

122. The major question of abolition or retention has to Mal"

be considered ﬁrst. It must be remembered, that this §';1§§,',',-'f,'§, of
question is linked up with the topic of objects of capital linked up
punishment; if the objects of capital punishment are Wm' °1?l°°'5
commendable and if they are achieved in a fair measure, g,fuS:§,',:::,t
then only its retention will be justiﬁed. If they are not '
commendable or not achieved in fair measure in practice,

abolition of capital punishment would have to be consi-

dered.

123. It should be borne in mind, that the arguments
against retention have to be considered in the light of con-
ditions in India. Arguments that may be Valid in respect
of other countries may not necessarily be valid for India.
India is a Vast country. The position regarding mainten-
ance of law and order may vary from State to State, and,
even within a State, there are districts which are notori-
ously criminal.

124. A large mass of the population is illiterate. The
majority of the people live in villages, scattered wide and
apart and looked after by a police force which is not uni-
formly adequate. There are, in some parts of the coun-
try, sectional feuds marred by fanaticism. The extra--legal
factors that act as a check on murder in Western coun-
tries---education, prosperity, homogeneity and Viabi1ity---
are sadly absent in many parts of India, or, are in times
of emergency, overpowered by other and more violent
factors.

125. In this situation, criminal law and punishment cons-
titute practically the only major safeguards for the protec-
tion of society, and the only barriers against the upsurge
of violence by individuals and groups.

TOPIC NUMBER 16
Arguments for retention

126. The arguments for retention or abolition of capital Argument
punishment have been stated times out of number on vari- 3'; men'
ous occasions. For convenience of reference, the im- n'
portant arguments on either side are summarised below.

We begin with the arguments for retention.



D eterrent
eﬁect,

Crimes of
VI olence.

Elimination
of the cm.
minal.

Realism in
the preven-
tion of
crime.

54

127- Capital Punishment acts as a deterrent'.

t' if death Sentence is removed, the Sear that comes in
'fie W33' Of PEOPLE COmrrutt1ng murders will be removed.
no we want more of murders in our country or do we
want less of thern2?".

All sentences are awarded for security and protection
oi society,' so that every, individual, so far as it is~poss1'ble,.
may live in peace. Taking a realistic view, so long as the
society does not become more reﬁned, death sentence has
to be retained".

The security of the society as well as individual liberty
of every person has to be borne in mind. Capital punish-
ment is needed to ensure this security".

128. Experience of other countries would not be con-
clusive for India. Need for deterrent control provided by
capital punishment is greater in various classes of society.
There is greater danger in India of increase in Violent
crimes if capital punishment is abandoned, particularly in
respect of professional criminals5--".

Moreover many Countries or States had to re--introduce
capital punishment after abolition.

129. When the public peace is endangered by certain
particularly dangerous forms of crime, death penalty IS
the only means of eliminating the offender'.

130. A particularly potent weapon is needed for dealing
with dangerous criminals and individuals not only for pro-
tecting human life and cultural values but even to safe-
guard certain social property, which is placed under the
protection of the law".

I The question of deterrent effect is discussed in detail separateli'
paragraphs 3o3--~372 mfra.

2 Late Shri Govind Ballabh Pant, Minister of Home Affairs, Raiya
Sabha Debates, 25-4-I958, col. 458.

3 Late Shri Gmfind Ballabh Pant, Minister of Home Affairs, Rajya Sabha
Debates, 25th April, 1958, cols. 45%, 459. '

4 Late Shri Datar, Minister of State in the Ministry of Home Affairs

Lok Sabha Debates, 21st April, I962, col. 356. \

5 cf. the argument put forth before the Canadian Committee-----Canadian
Report, page 11, paragraph 35 and conclusion at page 14, paragraph 54.

6 In this connection, it may be notedthat in India cases of dacoity
and goondaism,_ accompanied With murder or attempt to murder, are
frequent in certain areas.

7 U. N. Publication, page 59, paragraph 216.
8 U. N. Publication, (1962), page 60, paragraph 217.



55

131. There will be increased risk to police officers it
murderers are not sentenced to death. Very often, there
have been cases when murderers, after they come out of
prison, pursue the man who got them convicted.'

132. Society must be protected from the risk of a
second offence by a criminal who is not executed and who
may be released subsequently or may escape'-'.

After release, the murderer may well kill again".

133. In countries where capital punishment has been
abolished, the ﬁgure of homicide is very low; four in a
million, or even less than that".

134. Capital punishment marks the society's detesta-
tion and abhorrence of the taking of life and its revul-
sion aguinst the "crime of crimes". It is supported not
because of a desire for revenge, but rather as the society's
reprobation of the grave crime of murder?

135. As also observed by the Royal Comrnissioné, there
is a strong association between murder and death penalty
in the popular imagination, and "it is reasonable to sup-
pose that the deterrent force of capital punishment opera-
tes not only by affecting the conscious thoughts of indivi-
duals tempted to commit murder, but also by building up
in the community, over a long period of time, a deep feel-
ing of peculiar abhorrencie for the crime of murder.".

136. By emphasising the gravity of murder, capital
punishment tends to foster the community's abhorrence
-of the crime. This decreases the incidence of murder in
the long run?

l3'7. Public opinion is substantially in favour of capital
punishnient, and it would be unwise to abolish capital
punishnint contrary to the wishes of the majority of the
citizens'.

I Smt. Violet Alva, Rajya Sabha Debates, 8th September, r961, col.
3827.

2 U. N. Publication, page 59, paragraph 215.

3 Ceylon Report, Summary of Arguments, page 4o,ur1der "Alternative
Punishment ".

4 Smt. Violet Alva. Raiya Sabha Debates, 8th September, 1961, col.
3824.

5 Canadian Report, page I0, paragraph 30-
6 R.C. Report, page 20, paragraph 59.

7 Ceylon Report, Summary of Arguments, page 39, under "Long-term
Effect".

8 Cf. Canadian Report, page 10, paragraph 31.
6-122 M. of Law.

Risk to
oﬁcers.

Possibility
of repeated
murders.

Conditions
in India.

Reprobati on
by society.

Public opi~-
ni on.



Prison ad-
ministration.

Saving of
funds.

Proportion-
ate to crime,

Avoidance of

lynching.

56

138. Since Publlcioprnion believes in the effectiveness
of death 'penalty, this sincere belief should be respected,
and possible victims should be protected by maintaining
the penalty of death. In other words. even if its deter-
rent effect should be debatable, for reasons of public
safety, those concernd ought to be encouraged to believe
in it'.

139. If all convicted murderers were imprisoned, addi-
tional administrative problems would arise. Safety of the
prison staff and the general public from the dangerous
prisoners would be at risk, as a further sentence of im-
prisonment would have no deterrent effect on the dan-
gerous prisoners-'.

Keeping murderers alive in the prison greatly compli-
cates the work of prison administration'.

140. The taxpayers should not be called upon to pay
for the maintenance of anti-social criminals for an indeﬁ-
nite or for a very long period".

Money of the citizens should not be spent on maintain-
ing people who cause great harm5.

1-11. Punishment should bear a just proportion to the
crime. Therefore, capital punishment is the only ﬁt puni-
shment for those who have deliberately violated the same-
tity of human life''.

142. If a eold--blooded murder is committed, there is no
other way by which society can be recompensed than by
taking a life for a life. Cruel murders and mutilation of
children still go on; and it is not yet time to do away with
capital punishmentl.

143. Execution avoids certain popular reactions, which
must be expected in cases of heinous crimes if an over-
excited public opinion were not aware that the criminal
can be sentenced to death".

1 U. N. Publication, page 60, paragraph 218.
2 cf. Canadian Report, pages IO and 11, paragraph 32.

3 Ceylon Report, Summary of Arguments, page .10, under "Prison
Administration ".

4 U. N. Publication, page 60. paragraph 220.

5 Kumari Shanta Vashist, Rajya Sabha Debates, 8th September, 1961,
col. 3817.

6 Ceylon Report, Summary of Arguments, page 39 under "Life fora
Life".

7 Smt. Violet Alva, Rajya Sabha Debates, 8th September, 1961, co].
3822.

8 U. N. Publication, (1962), page 60, paragraph 220.



57

When a murderer is placed before the court and he is
either not convicted (because of want of evidence) or is
given a lighter sentence, and the persons aggrieved think
that they have not got justice according to their desire,
they take the law into their own handsl.
144. Death penalty is the only just punishment for the A'''""'"'*'"''
gravest of crimes, or the only one capable of effacing an
unpardonable crime".

145. Capital punishment in a painless and humane form l3"""h
sentence

is less cruel than imprisonment for life. more human

146. If there is miscarriage of justice in one or two No }nis- V
cases. the higher courts can be approached. The whole .°""'lag° °'
machinery of the Government would be there to protect 'uSt1ce'
the life of a person who is really innocent. We should not
be misguided by a single instance of erroneous conviction,
especially when the Supreme Court is there looking very
carefully into all such cases'.

147. In India, formerly, in capital cases, a lesser Discretion
sentence could not be imposed except for special grounds. °f °°'~1"-
The Judge was thus expected to justify the lesser sent-
ence, but this has now been amended4. Hence the matter
is completely in the discretion of the Judge.

Formerly, it was provided that Whenever an accused
person was convicted of murder, capital punishment was
the rule; that provision has now been taken away, and it is
I-AOW open to the judge to give the reduced punishment
even without giving reasons5.

148. It is impossible to replace the death penalty by any No substi-
effective substitute. lmprisonment even for life is inade-- We
quate. particularly because of the practice of earlier
release':

There is no satisfactory alternative to capital punish-
mentl.

I Late Shri D-atar, Minister of State in the Ministry of Home Affairs
Lok Sabha Debates, 21st April, 1962, col. 363.

2 U. N. Publication, page 59, paragraph 216.

3 Late Shri Datar, Minister of State in the Ministry of Home Affairs
L01»: Sabha Debates, 21st April, 1962, cols. 361, bottom and 362.

4 Late Shri Govind Ballabh Pant, Minister of Home Affairs, Raiya Sabha
Debates, 25th April, 1958, col. 460.

5 Late Shri Datar, Mnister of State in the Ministry of Home Affairs
Lok Sabha Debates, 21st April, 1962, col. 357.

6 U. N. Publication, page 60, paragraph 219.

7 Ceylon Report, Summary of Arguments, page 40, under "Alternative
Punishment ".



Time not
yet ripe.

Burden on
Abolitionist.

Arguments
for abolition.

General.

58

149. The majority of murders in India are committed
by poorer and backward classes. Prison conditions are
often better than conditions prevailing in their homes; and
for such person, death is the only deterrent'.

150. Even if the principle of abolition is accepted, the
time is not yet ripe in India. Present day society is not
ripe for this reform, and the community has not reached
such a stage?

151. Those who advocate the abolition of capital punish-
ment must prove their case before any change carrying
risk to the lives of innocent people is introduced".

TOPIC NUMBER 17
Arguments for abolition

152. Arguments for abolition of capital punishment, as
put forth in various quarters, may now be summarised.

153. The arguments for abolition are numerous. To
facilitate their consideration, it may be convenient ﬁrst
to classify them. First, there is the general argument
against retention, based mainly on religious, moral and
humanitarian grounds. Next is the group of arguments
which emphasises its evil features, namely, that it is immo-
ral, inhuman, irrevocable, and morbid, and leads to
injustice. Next in order is a group of arguments, which
tries to point out, that its deterrent object is not achieved
and its other objects are not praiseworthy. Then, there
are arguments which try to meet some of the contentions
advanced by retentionists. Next comes the argument that
an experiment of abolition is worth-making, and the argu-
ment which takes pains to point out that the substitution
of other punishment for the death penalty is worth attempt-
ing and desirable, and involves no risk. Lastly, there is the
argument that the onus for retention lies upon the reten-
tionists, who have not discharged that onus.

We now proceed to state these arguments in 'detail.

I. General

154. ''Capital punishment should be abolished because
it is a legalised, revengeful and cruel destruction of God's
most wonderful creation, the human being.''''.

I cf_. Ceylon Report, Summary of Arguments, page 41, under "Present
Social Circumstances of Ceylon".

2 Smt .Violet Alva, Rajya Sabha Debates, 8th September, 1961, col. 3827,

.3 C_eylon Report, Summary of Arguments, page 41, under "Present
Social Circumstances of Ceylon ".

_ 4 cf. the resolution notiﬁed but not moved _by Srnt. Savitry Devi Nigam.
This was referred to in her speech on Shri Prithvi Raj Kapoor's resolution,
Rajya Sabha Debates, 25 th April, 1968, cols. 483, bottom and 484,



59

It will be the greatest of dharma to do away with that
which does away with life and thus give people a chance to
become better, to become improved, giving a chance to
people to live in amity, brotherhood, love and affection?

155. The question of capital punishment is a question
of values, the values we put on human life'.

11. Immoral

156. Capital punishment is morally indefensible.
Society has no right to take the life of any person. This
is a consideration which is paramount to all other conside-
rations.

It is morally wrong for the State in the name of the
law to take life deliberately".

Capital punishment is morally wrong because it is
barbarous and out of step with modern morality and
thought".

157. In eliminating the criminal, it is stated, the State
does not erase the crime, but repeats it5.

III. Inhumarz
158. Capital punishment is essentially inhuman.

Death penalty is a form of cruelty and inhumanity un-
worthy of a humane civilization; even the most eﬂicient
methods of execution do not result in instantaneous and
painless death".

Humanity demands that capital punishment comes to
an end7.

159. Capital punishment is most inhuman. Those who
have witnessed the tortuous process know it. The prison-
er, if he is to be executed tomorrow morning, is informed,
the previous evening,--"Tomorrow morning at 6 o'clock
you will be hanged". This is the first torture. Then his
entire family is brought there, even the youngest kid to
weep there. Then there is the remaining 12 hours in the

I Shri Prithvi Raj Kapoor, Rajya Sabha Debates, 25th April, 1958, col.
435-
2 Shri Jaipal Singh, Lok Sabha Debates, 21st April, 1962, col. 324.

3 Ceylon Report, page 38, ez seq, Summary of Arguments, under
"Long-term effect".

4 Canaiian Report, page 12, paragraph 37, stating the argument.
5 U. N. Publication (1962), page 61, paragraph 222.
6 U. N. Publication (1962), page 61, paragraph 227.

7 Shri Raghunath Singh, Lok Sabha Debates zrst April, 1962, C01-
308 (in Hindi). .

Immoral.

Inhuman.



Tlon-violence.

Irrevocable.

60

Eight; that kills hm; hour by hour. in the last half an

<i_U_r_, he 18 killed minute by minute. If the law abolishes
W ripping because it is inhuman, how can it permit this
legal murder'?

IV. Nonmiolence

163. Indian ideology is based on non-violence. This is
the Ureatideal which the'Father of the Nation kept before
us, and if we have any regard and respect for him, death
s'cn'.en~:e must be immediately removed-'_

If "a country physically and morally in shambles, as
was Germany in 1948, could abolish the death penalty
without any ill effects, this country of ours, the land of
Lord Mahabir and Buddha--and of Mahatma Gandhi; the
apostles of peace and of Ahimsa . . . . . . . . ..should need the
continued protection of the hangrnan3?".

161. Indian tradition is based on reformation of the
mind and spirit Capital punishment was discarded by
Gandhiji, who, regarded it as a negation of non--vio1ence,
and was of the opinion that only God could take away life
given by him", "I do regard death sentence as contrary to
Aliimsa. Only He takes life who gives it. All punishment
is repugnant to Ahimsa. Under a State governed accord-
ing to the principles of Ahimsa. therefore. a murderer
would be sent to a penitentiary and there given every
chance of reforming himself. All crime is a kind of
disease and should be treated as such.5".

V. irrevocable

If an innocent

162. Capital Punishment is irrevocable.
the greatest

person is sentenced to death and executed,
injusticc results?

163. Several cases of erroneous conviction are known.
An innocent person was once hanged for murder, While
the person who actually committed the offence later on

1 Shri Umanath. Lok Sabha Debates. 2Ist.April, 1962, C01. 332.
7 Smt. Savitry Devi Nigam. Raiya Sabha Debates. 25th August

196r:co1. 1692.

3 Shri M. L. Aerawal, Lok Sabha Debates, 24th August, 1956, cols.
4345 to 4333-

4 Shri Raghunath Singh. Lok Sabha Debates. 21st April. 1962: C015-
3Io and 311 (in Hindi).

5 This view of Gandhiii, referred to by Shri M. L. Agrawal, Lok Sabh
Debates. 24th August' 1956. cols. 4345 to 4388, is quoted in N. B. Sen
(Bd.) Wit and Wisdom of Mahatma Gandhi (1960), page 67 (New Book Socie-
ty of India, New Delhi).

6 See also Canadian Report, page 12, paragraph 40 stating the argu-
ment. _



61

spent Ll' years in the Andamans for an attempt tn the lite
oi the Lzovernor of Bengal'.

164. in one case the man who really cgmmmed the
murder was never prosecuted and a man who was inno-
cent of the crime was sentenced to death. In the Punjab,
3 or 4 persons were prosecuted for the alleged murder of
a woman, and while the case had been going on for over
a year there, the alleged victim--the woman--~appeared in
some coui't in U.P., and thereafter the cases against the
alleged murderers were withdrawng-9'.

165. A case in which error might have ensued is cited.
In the Mehboob Nagar district in the Andhra Pradesh,
when the trial of a person for the murder of 'A' was about
to begin in the Sessions court, 'A' who was alleged to have
been murdered was walking alive in the court room".

166. Capital punishment is irrevocable. When as a re-
sult of an erroneous conviction, a man is sent to prison,
he can be compensated. "But death admits of no compen-
sati0n.5".

167. Sometimes there may be a mistaken View of the
law. Thus, (it is argued). a person was sentenced to death
in one Madras Full Bench case, on a confession made by
him. to an investigating ofﬁcer. Ten years later, the Privy
Council, in a similar case, held, that this case was wrong-
ly decided, and that the confessions ought not to have
been admitted in evidence".

l68 The penalty of death is based on the postulate of
hijiman freedom. while actually the offender does not
ttenerally enjoy complete freedom. Absolute justice.
therefore. is an illusion. and full atonement a ﬁCt1Ol'17.

1 Shri Bliupesli Gupta. Raiya Sahha Debates, 25Yh Aufztlst 1961. C015. 170K
and 1702.

2 Shri B, K. P. Siiiha. Riiya Sibhu Dsdates, 25th August, I96I, C01.
1717.

3 See also cases cited by M". _l'.lsClCc B. N. Baneriee, "Abolition of
Capital Puiiishrnent" Law Quarterly (Journal of the Indian Law Institute
West B33211 State Unit). June 1965, pages 123 and 128.

4 Sliri Urrimath. Lok Sabha Debates, 21st Apri, 1962, col. 333 (cites also
his o.vn case of being falsely implicated on a murder charge).

5 Shri M. L. Agrawal. Lok Sabha Debates. 24th August 1956, c01s.4343
to 4388.

6 Shri M. L. Agarwal, Lok Sabha Debates, 23rd November 1958, cols.
016 to 986. The reference is to

(2') Atlzaopci Gozzizdmz v. Enzp., I.L.R. 1937 Mad. 695 3 {\.I.R. 1937
M151. cm, 629 (F. B.) (Confession made under section 27, Evi-
dence Act).

(ii) 74 I. A. 65 -, A.I.R. 1947 P. C. 67, 71, paragraph I2.

7 U. N. Publication (1962), page 6:, paragraph 225.

Man not
lree.



.vl0t bi d..

Hanging a
mockery.

Brutalizing
eﬂect.

Injury to
family.

Unequal

application.

Justice not
possible.

62
VI. Morbid

169. By giving rise to sensationalism, capital punish-
ment deflects potential offenders towards violence.

The curiosity aroused by the execution is morbid, and
the penalty of death itself may have the eﬁect of leading
to crime, particularly in respect of abnormal individuals'.

'One murder breeds another murder. After every sen-
sational execution, there comes a wave of crimes?

170. Hanging is a mockery of punishment. "Real crimi-
nals do not look like guilty people at that moment. If you
go and see there, it is the oiﬁcers who look guilty. They
are huddled together, they are afraid, they are ashamed,
they know that they are doing something ghast1y.3".

171. Capital punishment has a brutalizing effect not
only on the prisoners and the staff of the prisons, but on
society at large'.

VII. Unjust

172. The sentence of death injures the family of the
offenders, and thus imposes suffering on persons who
have done nothing to deserve the suffering. "Have you
ever tried to visualise the feelings of a mother on the
night. before her boy is to be hanged? . . . . ..The agony and
horror which you and I representing the State must in-
flict on this perfectly innocent woman must be more ter-
rible than any pain the murderer can inﬁict on his vic-

tims 5"

173. Death penalty is applied unequally. Some per-
sons who have not suiﬁcient ﬁnancial means to defend
themselves. or are morally unable to do 50, Suﬁelﬁ The
penalty. therefore, which should be the expression of
absolute justice, often leads in practice to injustices against
individuals.

174. It has become difficult to obtain justice in the
present judicial system in 'India. The standard of investi-
gation has terribly deteriorated. Further, until total sepa-
ration of the judiciary from the executive is carried out,
death sentence should be suspended. Thirdly, persons who

U. N. Publication (1962), page 62, paragraph 229.
Smt. Savitry Devi Nigam, Lok Sabha Debates, 1st April, 1962, Co]. 339
1 Shri Prithvi Raj Kapoor, Rajya Sabha Debates, 25th April, 1958,
co . 525.

4 Canadian Report, page I2, paragraph 39, stating the argument.

5 Stacey Aumonier, cited by Shri M. L. Agrawal, Lok Sabha Debates,
24th August 1956, cols. 4343 to 4388.
s_ 6 U. N. Publication (1962), page 62, paragraph 229.

I
3



63

cannot afford to engage a good lawyer, are unable to ﬁght
the case to the last. Counsel provided by the State are
paid low, and they cannot be expected to devote their
whole heart to the case'.

175. Since human beings are imperfect, the system of
administration of justice will always remain imperfect.
Therefore, from the point of View of justice, the assump-
tion behind capital punishment that justice can be meted
out to another person only by killing him, cannot be
supported?

176. Even in those States of United States of America
where death sentence has been retained, the matter is left
to the jury and not to the Judge3.

VIII. Deterrent and other objects not achieved.

A.-Deterrrest eﬁect not achieved

177. The deterrent effect of capital punishment is not Detﬁfrmt

- effect not
established'. established"

In England, Very petty offences were previously capital.
They are no longer capita15.

178. The question is, to what extent capital punishment Not a uni-
has a greater impact on the mind, compared with life que deter-
imprisonment. It has not been settled yet, for example, *5"-
that "90 degrees" of deterrence will be created by impri-
sonment for life, and "100 degrees" by capital punishment".

"It is no doubt a deterrent, but we have to see if it is
a deterrent which is unique and which cannot be replaced
by any other punishment?"

179. The crime curve and the existence on the Statute crime curve
Book of the capital punishment are not related in any way. and sentence

The two things are virtually independent of one anothers. ;'§;tie'(','°"

I Shri Raghunath Singh, Lok Sabha Debates, 21st April, 1962, cols. 318 to
320 (in Hindi). (Quotes discussion from Law Commission's 14th Report
V0' 2, pages 736 and 738, paragraph II about standard of in\'es1ig9tiOn)

w.::::Shri Yogendra Jha, Lok Sabha Debates, 21st April, 1962, col. 351 (in
Hindi).
'3 Shri Raghunathﬁsingh, Lok Sabha Debates, 21st April, 1962, cols. 314 (in
Hindi).
4 The topic of deterrent effect will be discussd in detail separately,
paragraphs 303 to 372, infra.
5 Shri Bhupesh Gupta, Raiya Sabha Debates, 25th August, 1961, C01.
1699.
6 Shri Bhupesh Gupta, Raiya Sabha Debats, 25th August, 961, col. 17oo_
EK7 Shri M. L. Agrawal, Lok Sabha Debates, 24th August, 1956, cols.
4345 to 4388.
8 Dr. W. S. Barlingay, Rajya Sabha'Deba1es, 25th August, 1961, col. 1706.



Examples of
Indian
States.

Examples of
other
countries.

64

180. If capital punishment had any deterrent value,
murders would be less and less, since capital punishment
has been on the statute book for many many years. The
crime curve would be a declining one; but it is not actually
so'.

181. In the old State of Hyderabad, for the last forty
years, no death sentence was executed. Every sentence of
death was commuted by the Nizam of Hyderabad; and
there had been no instance to show that it required the
revival of execution of death sentence in Hyderabad'.

[We understand that in the old State of Hyderabad the
death sentence was not executed. In individual cases the
Nizam used to commute it to life imprisonment. There
were no standing orders in this regard, but individual cases
were being considered'.]

In the States of Cochin and Travancore, capital punish--
ment was not in existence for a number of years; the inci-
dence of crime in those years was no higher there than
in other parts of India'.

182. Numerous countries have abolished capital punish-
ment, and have not thought of going back to it againi'.

"If you drive a motor car and it runs exactly at the
same speed whether the brakes are off or on, surely it is
an indication that the brakes are not working."".

In countries where capital punishment has been abolish-
ed, the incidence of crimes has not gone up7.

For many crimes which were capital in England pre-
viously. the death sentence has been abolished, and yet
there has not been any increase in the incidence of those
crimes in that country".

In those countries of Europe where death sentence has
been abolished--for example, Austria, Belgium, Denmark,
Finland, Iceland, Netherland--and also Norway, Portugal
and Sweden--abolition has led not to an increase but to a
decrease in homicide".

1 Shri Bhupesh Gupta. Raiya Sabha Debates, 25th August, 1961, col-
I699.

2 Shri V. K. Dhage, Raiya Sabha Debates, 25th August, 1968, col. 468
top.
3 Based on letter of Government of Andhra Pradesh, dated 27th January,
1966, to the Law Commission.

4 Shri P. N. Nair, Raya Sabha Debates, 25th May, 1958, C01. 469, top.

5 Dcwan Chaman Lao, Rajya Sabha Debates, 25th August, 1961, cols.
174x.

6 Shri M. L. Agrawal, Lok Sabha
4346 to 4388.

7 Shri P. N. Nair, Raiya Sabha Debates, 25th April, 1958, col. 472.

8 Shri B. K. P. Sinha, Rajya Sbha Debates, 25th April, 1958, col. 447.

9 Shri Raghunath _Singh, Lok Sabha Debates, 21st April, 1962, cols.
314 and 315 (In Hindi).

Debates, 24th August, 1956, col.



65

183. As far as ordinary crimes are concerned, capital
punishment has not achieved its objective. Under the
British, capital punishment had been used, and yet murd-
ers have gone on increasing and dacoity has become in
some places the order of the dayl.

184. The deterrent theory does not hold good, on a close
analysis. 70 per cent of those who go to the gallows are
men who had committed the crime in the course of a heat-
ed argument, in a tit of insane jealousy. or robbers who.
when they were fearful of discovery. unwillingly pulled
the trigger and became murderers. When such people
commit the crime, they do not think of the consequences.'-"'.

Serious crimes are committed only in a state of men-

tal excitement, and in such a. state punishment never acts
as a deterrent to such a person".

"Mostly people get suddenly provoked by passion and
without considering the consequences commit murder."'.

185. The arguments that capital punishment does not
deter the various categories of persons who commit homi-

cide can be thus elaborated. Offenders fall into following
categories:---

{i)- Those who carefully plan a murder or a crime
like r.:'i=b:ry;~»--tl1ey deliberately plan to avoid detec-

tion. and are not therefore inﬂuenced by the threat of
the death penalty;

(ii) Those who meet the test of the legal defence
of "insanity; they can never be deterred;

(iii) Those who do not meet such test, but are yet
not fully responsible for their actions. They also can-
not be restrained by the threat of any punishment;

(iv) Thus, there remains only the normal law-
abiding citizens, who would not murder in any case').

186. Capital punishment is not an effective deterrent.
On the planned murder, it has no effect. On the unplanned
murder committed in the heat of passion, etc., it has no
effect. Further, its effect is weakened by the comparative
infrequency of its application due to diﬁiculties of detec-
tion, apprehension and conviction, and by the exercise of
the power of reprieve after conviction".

I Shri Bhupesh Oupta, Raiya Sabha Debates, 25th April, 1958, cols. 492
and 493.

2 Shri B. K. P. Sinha. Rajya Sabha Debates. 25th April, 1958, col. 447
3 Shri Yogendra Ilia, I_.0l< S xbha D3ba'es, 1st. April. I962, col. 352 (Hindi)
4 Shri M. L. Agrawal, Lok Sabha Debates,
4345 'O 4388-
5 Canadian Report, page II, paragraph 36, stating the argument.

6 Ceylon Report, page 38 et seq. Summary of Arguments, under
crrence'

24th August, 1956, cols-

ac De_

Experience
in India.

Crimes
committed
in exci IC-
ment.

Infrequency
of applica-
ti on.



Secrecy of
executi on.

Criticism of
retribution.

Certainty of
punishment
better than

severity.

66

187. There is a contradiction in claiming that the death
penalty has a deterrent effect and at the same time sur-
rounding the execution with secrecyl.

B. Retributive object criticised

188. Capital punishment is cold-blooded murder.
Crime cannot be replied by crime. Stealing or prosecution
is not replied by stealing and prosecution in return. The
basis of jurisprudence for retaining capital punish-
ment----death for death--requires to be changed?

The retributive aspect of capital punishment is not in
conformity with modern theories. "It is theoretically
primitive and it ignores social responsibility and disregards
the possibility of reformation.3".

189. Revenge is a very primitive and barbaric instinct.
With intellectual renaissance and progress, such notions
should disappear'.

190. The old, ancient society was based upon violence,
and the entire object of that society (to maintain its own
existence) was to put an end to or minimise violence. It
is because of this approach that when a person committed
a murder, the relatives of the murdered person could take
revenge, and if they did not do so, the society would take
revenge. An eye for an eye, a tooth for a tooth and life
for life--that was the ancient society. "Surely, in 1961
we have advanced far enough to know that that is not the
principle that should govern society at all.". The more
humane principle of trying to better the conditions of
human being, so that they may not indulge in these crimes,
should be followed? T

Revenge should not be part of any just punishment".

IX. Counter-arguments for abolition (in reply to reten-
tionist arguments)

191. Detection is important. Deterrence by any means
can be substituted by detection and prevention?

192. Capital punishment, or the possibility of sentence
of death being awarded in a particular case, diminishes, the
certainty of punishment and makes the jury unwilling to
convict.

i U. N. Publication (1962), page 62, paragraph 229.

2 Shri Umanath, Lok Sabha Debates, zrst Apri1,i962, col. 331.

3 Shri M. L. Agrawal, Lok Sabha Debates, 24th August, 1956.

4 Smt. Savitry Devi Nigam, Rajya Sabha Debates, 25th August, 1961
col. 1683.

5 Diwan Chaman Lall, Raiya Saha Debates, 25th August, 1961, co).
1739 and x74o.

6 Canadian Report, page 12, paragraph 38, stating the argument.

7 Shri Bhupesh Gupta, Rajya Sabha Debates, 25th April, 1958, col. 495.



6'7

193. Abolitionists do not want to take away the right
of the State to punish the offenders. They would like to
punish those who offend against the State or any person.
But the truth is, that because of capital punishment, offen~
ders escape unpunished. Capital punishment "hangs like
the Damocles sword on the heads of the Judges". They
dread it, and are afraid to give capital punishment, because
they fear so many loopholes are there'.

When it is abolished, there will be less murders, because
everybody will be punished".

194. Existence of capital punishment makes murder
trials protracted and sensational, and distorts the adminis-
tration of justice and renders the dispassionate examina-
tion of the evidence more difficult". "When life is at
hazard in a trial, it sensationalises the whole thing almost
unwittingly; the effect on juries, the Bar, the public, the
judiciary, I regard as very bad. I think, scientiﬁcally,
the claim of deterrence is not worth much. Whatever
proof there may be in my judgment does not outweigh the
social loss due to the inherent sensationalism of a trial for
life.''''.

195. Juries are unduly swayed in their verdict by fear
of death penalty".

The presence of capital punishment falsiﬁes criminal
proceedings, which take on the character of a tragi-comedy.
This renders justice uncertainf'.

196. The argument that the homicide percentage in
other abolitionist countries was low seems to be plausible,
but what brought down the incidence of murders there in
such countries was not the sentence of death, but better
living conditions and training of the emotion and the im-
pulses and proper education?

197. Public opinion is divided over the matter; those
who argue for abolition, also reflect, to some extent, public
-opinion".

I I Shri Prithvi Raj Kapoor, Rajya Sabha Debates, 25th April, 1958,
C0 . 523.

Col zszjhri Prithvi Raj Kapoor, Raiya Sabha Debates, 25th April, 1958,

_ _3 Cfylon Report, page 38 et seq, Summary of Arguments under "Ad-
ministration of Justices".

4 Mr. Justice Felix Frankf t U.S.A. ' ed b Sh ' M. L.
Lok Sabha Debates 24th Auguir, err9(56, co1g.Clzt;345--y-438r8l, Agrawal'

5 Canadian Report, page I2, paragraph 4:, stating the argument.
6 U. N. Publication (1962), page 61, paragraph 224.
7 Shri P. N. Nair, Raiya Sabha Debates, 25th April, 1958, col.47o.

8. Shri Bhupesh Gupta, Raiya Sabha Debates, 25th April, 196:, col. I698

Scnsat ioria-
Iism.

B etter li Vin",
conditi ons in
other
countries.

Public
opinion.



Opinion of
Judges

and police
oﬁicers not
conclusive.

Prison _
Administra-
tion.

68

198. The argument of public opinicn is an irrelevant
one. For no social reform, even the Hindu Marriage Act,
there was any public opinion. Still, legislation was brought
forward, because the leaders who are Members of Parlia-
ment are responsible for creating public opinion and for
reforming society'.

199. Public opinion is divided on the issue, and is large-
ly uninformed. Practically all specialised studies by
experts favour abolition. Parliament should give a lead to
public opinion, if abolition is desirable?

200. Judges, lawyers and police ofﬁcers are not in any
favourable position to form views, on this question, since
they see the murder only after or at the stage of detection
of the crime, when his attitude to the possible punishment
is likely to be very different from his attitude before or
during commission of the crime".

201. Difﬁculties of prison administration are no argu-
ment for retention. The execution of murderers runs
counter to the established purpose of the prison admini-
stration,--namely the reformation of criminals. Further,
advocates of abolition include many experienced prison
administrators. Taking of life by the State for economic
reasons is counter to universally accepted religious and
moral principlest.

202. Even if the housing of all convicted murderers
presented difﬁculties it would be improper to permit mere
administrative considerations to stand in the way of aboli-
tion. which is justiﬁed on broad grounds of public policy5.

The argument that it is unreasonable to expect the State
to feed and clothe convicted murderers for the rest of their

lives was met in very forceful language by Professor
Goodhart":----

"There are. undoubtedly, serious arguments, which
have been advanced against the abolition of capital
punishment, but this particular one seems to he wick-
ed and immoral. Are we to kill men and women in
cold blood because it is too expensive to maintain a

1 Smt. Savitry Devi Nigam, Rajya Sabha Debates, 8-9-1961, col. 3831.

2 Ceylon Report, page 38 ezseq, Summary of Arguments under"Public
Opinion."

3 Ceylon Report, page 38 e1 seq, Summary of Arguments under "Public
Opinion ".

4 Ceylon Report, page 40 Summarv of Arguments, under "Prison
Administration" items (2') am. \ the right hand column.

5 Canadian Report, page 12, paragraph 42, stating the argument.

6 Letter of Professor A. L. Goodhart to the Manchester Guardian, cited
in the Woodrow Wyatt "Again the issue of Capital Punishment", Times

Magazine January 8, 1956, reproduced in McClellan, Capital Punishment
(1961), pages 105-106.



69
prison in which to house them? If the terrible pI'0--
blem of life or death is to be decided on the basis of
pounds, shillings, and pence, then we can have little
reason to be proud of our modern civilization".

203. Sympathy for the victim's family does not justify Sympathy
capital punishment. Death cannot cure a crime or restore for _vict,i§n
the life of the victim. By just "murdering the murderer", "P l"5""¢"
we do not show any sympathy for the family of the victim.

Nor do we show any sympathy for the person who has
been murdered by the State and his family'.

X. Experiment of abolition worth mczlcing

20-}. Progressive jurisprudence requires abolition.

Some country at some time has to make an experiment Experimcni

and go by this progressive jurisprudence. India, with its fxlllggeld be
great traditions is more ﬁtted to make this experiment '
than any other countries. If crimes go up as a result of
abolition, "Parliament will be sitting for sever.' months

every year" and can restore capital punishment".

XI. Substttutle possibie

205. Criminals can be reformed. They are the victims Reformmi ~.

of circumstances. "They are bone of our bone and flesh P°55'b1°~
of our ﬂesh. They are from us and we should not be

afraid of them . . . . . . ..We should have faith in humanity;

we should have faith in the goodness of man."".

206. Murderers can be reformed. Murderers who have
been kept in prisons instead of being sentenced to death
have proved to be the most docile and most obedient
people':

207. The fear that abolition will create a sort of risk in No risk it.
the society is a fear not based on facts, and is "childish i\l"01itior,
and primitive5".

208. Abolition, by showing the State's reverence for life,
tends to inculcate the same approach in the minds of its
citizens. and decreases the incidence of murders". By
reason of the great example of acceptance by the State of
the principle of sanctity of life, by abolition would lead
to a substantial and progressive diminution of murder'.

I Smt. Savitry Devi Nigam, Rajya Sabha Debates, 8th beprcmber, 1961,
col. 3832.
2 Shri Bh'i_o:'s'1 G'.l}7f8, Raiya Sabha Debates, 25th August, 1961, cols.
I700 and 1701.
3 Shri Prithvi Raj Kapoor, Raiya Sabha Debates, 25th April, 1958, col. 438.
4 Sznr. Sivicry Devi Nigam, Rajya Sabha Debates, 25th August,'1961, co1_
1688.
5 Smt. Savitry Devi Nigam, Rajya Sabha Debates, 25 8:: August, 1961»
cols. 1682 and 1683.
6 Ceylon Report, page 38 et seq, Summary of Argumerts, under " Long-

term effect".
7 Shri M. L. Agrawal, Lok Sabha Debates, 24th August,x956, cols.

4345 t0 4388-



Death
penalty
a lazy
answer.

Other
methods

s hould be
Iri ed.

Onyx .

Q ucstion 1.

'70

209. Experience shows that there is no appreciable risk
of convicted murderers killing again'.

210. Society can protect itself by other means, and the
death penalty is no more than a lazy answer which ham-
pers the search for effective means of curbing crime and
a rational system of prevention?

211. Deterrent punishments have not been able to check
murders, and the time has come to replace them with some
other punishment".

212. The only objects which can be justified in conson-
ance with the modern tendencies, are prevention and
punishment, and these objects can be achieved by means
other than the taking of the life. Capial punishment is
often abused, particularly for political purposes'.

XII. Onus

213. The execution of a human being is a punishment
of the most ﬁnal nature, and those who advocate it must
justify its morality and social utility'.

TOPIC NUMBER 18
Abolition or retention---Rep1ies to Question No, 1.

214. The general question of abolition or retention was
the subject-matter of question 1 in the Questionnaire
issued by us. The question was as follows:----

"1. Are you in favour of retention or abolition of
capital punishment?".

This being the most important question in the Ques-
tionnaire, naturally almost every person or body which
has sent a reply to the Questionnaire has expressed deﬁ-
nite views on this question. While it would not be
proper to come to a conclusion about the state of public
opinion by merely counting the replies on either side, it
would not be out of place to mention here brieﬂy the
nature of the replies received.

215. The replies received to Question 1 may be classi-
ﬁed into three categories:---

(a) those who are for total abolition;

I Ceylon Report, page 38 et seq. Summary of Arguments under "Alter-
native punishment".

2 U.N. Publication (1962), page 61, paragraph 228.
3 Shri Raghunath Singh, Lok Sabha Debates, 21st Apri1,1962, col. 309
(in Hindi).
4 U.N. Publication (1962), page 61, paragraphs 22! and 223.

5 Ceylon Report, page 38 et seq. Summary of Arguments under "Onus
gf pl'O0f".



71

(b) those who are for retention' without any
modiﬁcation; and

(c) those who are for partial retention.

216. In the last category again, there 'are several'sub--
categories which, while not favouring total abolition sug-
gest abolition of capital punishment,-

(a) for certain offences, or

(b) in certain cases on the lines of the (English)
Homicide Act, 1957', or

(c) for particular persons.

217. It is unnecessary to enter here into details of these
sub-categories of partial retention, since the relevant topics
are dealt with in the Questionnaire? under other questions.

218. Those who favour total retention seem to form the
largest majority, and considerably out-number those who
favour partial abolition or total abolition. In favour of total
retention are almost all High Courts that have sent replies,
almost all High Court Judges individually who have sent
replies, all State Governments and Administrations of
Union territories that have sent replies, some Members of
Parliament and State Legislatures, all Inspectors-General
of Police who have sent replies, many State Bar Councils
or members of State Bar Councils, almost all State or
District Bar Associations that have sent replies, and many
Advocates.

219. The Bar Association of India is also for retention3.

220.' An eminent member of the Bar is for retention''.

221. Almost all the High Courts that have sent replies
have favoured the'retention of capital punishment'.

222. Almost all State Governments that have sent re-
plies are in favour of retention of capital punishment".

223. The views of the Home Secretaries or the Law
Ministers of some State Governments have been received
through the State Governments, and they are also in
favour of retention'.

1 The replies were received before the Murder (Abolition of Death
Penalty) Act, 1965, became law.

2 See question Nos. 3(a), 6(a) and 9, in the Questionnaire.

3  No. r83 (Bar Association of India). The reply of the Bar
Association of India under Question 1, is subject to its reply to
Question 3(a).

4 S. No. 161 (An eminent member of the Bar).

5 S. Nos. 187, I67, 140 (High Courts).

6 S. Nos. 129, 242, 261, I43, I54, 182 and 311 (State Governments'

7 S. Not. 131 ani 313 (Law Ministers and Home Secretaries"

7-122 MofLaw



72

224. Governments and Administrations of certain Union
territories have sent replies, and all of them are in favour
of retention'.

225. A State Government? has expressed itself in favour
of retention, emphasising the need for maintenance of
security and peace, and also pointing out that the abstract
theoretical doctrine that human life is sacred may work
hardship if applied to the classes of persons who consider
the life of a human being not so sacred and who act reck-
lessly without any such considerations crossing their minds.

226. Another State Government3, while noting that
there are equally forceful arguments for and against reten-
tion, has stated that in the present uncertain conditions of
life and in view of the fact that lawlessness and violence
are increasing in all the spheres of life, it would not be
advisable to abolish the capital sentence. 'In its opinion,
the death penalty is a social necessity, because it effective-
ly deters people from committing murders by affecting-

(i) the future of the immediate family and friend's--
circle of the person punished;

(ii) the future conduct of others.'

227. Many High Court Judges have sent replies in their-
individual names, and almost all the High Court Judges.
who have sent such replies, are in favour of retention'.

228. Replies _of several Members of Parliament and of
State Legislatures are in favour of retention5.

229. The Bar Association of India is for retention".

One High Court Bar Association7 has sent a reply in.
favour of retention.

tiogfhe Indian Federation of Women Lawyers" is for reten-

.1 .S- N°5- I54, 106 and 303 (Governments or Administrations of Uniorr
territories).

2 S. No. 574. replies to questions 1 and 2.
3 S. No. 580.

4 S-NOJI 97(3), 97(1)), 315. 393, 394, 395» 395, 397, 2 . 252
130, I37, 105 and 147 (High Court Judges). SI

5 5- N05- 102, 207. 209, 210, 213, 214, 216, 221,224, 225, 226.
232._ 236. 241, 244, 248. 249, 257, 258, 273 and 40x. (Members of
Parliament and of State Legislatures).

6 S. No. 183 (Bar Association of India).

7 S. No. 493 (A High Court Bar Association).

8 S. No. 151.



73

230. A High Court Bar Association in a Presidency To be

Town' is of the view that capital punishment should b
retained. In its opinion the primary object of punishmen
is retribution, and one of its purposes is to serve as an out-
let for the indignation of the community.

231. Several Advocates are for retention'-"-4-5-6-7.

Many Advocates are in favour of retention".

Many Public Prosecutors are in favour of retention".

A number of State Bar Councils''' are for retention.

232. The Presidency Magistrates, in a Presidency Town"',
who are in favour of retention (by majority) have empha-
sised that the offences for which the Indian Penal Code
provides capital punishment have not lost their gravity
with the passage of time or change of regime.

Some of them, however, are against retention, on the
ground that retention would serve as a revenge by the
society and the law should not sanction it, and that if the
imprisonment for life actually lasts for the whole life and
not for 21 period of 14 to 20 years reduced by remission, then
that sentence too would have an equally deterrent effect
as a sentence of death.

233. The Judicial Section of the Indian Ofﬁcers' Asso-
ciation in a State'? is for retention, on the ground that the
deterrent object of preventing heinous crimes involving
a high degree of violence is substantially, though not
sufficiently, achieved.

.8. No. 493
S. No. I6r(i) (An eminent member of the Bar).
S, No. 229 (Advocate--General of a State).
4 S. No. 143(a) (AdvoCate--General of a State).
5 S. No. 146 (Senior]D:puty Advocate-General and Deputy Advoca*e
General of a State).
6 S. No. 104(1) (.\/[ember of a State Bar Council).

7 8. Nos. 92, I09, I28. 152, zor, 20', 250 and 272.

8 S. No. 318 \an experienced Advocate of the Bombay High Court)
321, 400 (an Advocate who has been a Public Prosecutor and Government
Pleader), 402 (an Advocate who is also a Public Prosecutor), 403, 497 (an
Advocate who has been a Public Pr0SeCut0r),4o8, 409, 410, 4x2, 451: 453
and 466. '

.9 S. No. 459, (a Public Prosecutor), 471 (a Public Prosecutor), 515 and
547-

10 S. Nos. I16, I32, and 159. (State Bar Council).

u S. No. 549, replies to questions I and 3.

12 S. No. 562.

kph)-4

e dovetailed
1: into main



74

We ﬁnd that of the Judicial Ofﬁcers or Judicial Officers'
Associations that have sent replies, an overwhelmingly
large number are in favour of retention. These include---

(i) District & Sessions Judgesl; and a Chief Presi-
dency Magistrate2;

(ii) Additional Sessions Judges";

(iii) Assistant Sessions Judges, Civil Judges,
First Class Magistrates and oiﬁcers exercising powers
both of Civil Judges and First Class Magistrates';

(iv) Judicial Service Oﬂicers' Associations".

234. A large number of District Bar Associations" are
in favour of retention.

235. Of the Inspectors-General of Police and Inspectors-
General of Prisons of State Governments that have sent
replies7, some are for retention.

236. Certain District Magistratesg are also for retention.

237. Apart from the replies already summarised, we
have received replies on our Questionnaire from public
men, private individuals and certain Institutions. Several
of these replies are for retention" '° .

1 S. Nos, 212, 325, 330, 333, 334, 335, 336, 339, 342, 346, 347,
348, 349, 350, 351, 352, 353, 354, 358, 359, 360, 362, 364, 366, 370,
371, 372, 375, 382, 383, 384, 385, 387, 388, 389, 391, 399, 415, 416, 418,
419, 420, 421, 423, 424, 425, 427, 429, 431, 434, 436, 437, 438, 440,
442: 444: 445: 447: 448: 452: 454: 455: 4569 4589 463; 463: 467: 473:
475,478, 480,488,490, 498, 500, 501, 502, 503, 505,509, 512,516,
517, 520, 521,522, 524, 525, 526, 548, 553, 554,556, 557, 560,563,
567, 568 and 570 (District & Sessions Judges).

2 S. No. 549 (Chief Presidency Magistrate of a Presidency Town)

3 S._Nos. 367, 381, 470, 499, 527. 533. 534, 535 and 559-

4 3- N0S- 340, 529, 530, 531, 532, S36, 537, 533, 539, 541» 543
544, 545 and 545-

5 8. Nos. 373, 374 and 562-

6 S. Nos. 125, 218, 219, 220, 223, 228, 31 (one group), 233

234, 239, 270, 323, 343, 368, 411, 412, 426, 430, 432. 457, 468, 484
and 485.

7 S No. 143(b) and 143(c), 263 and 264.

8 S. No. 286, 491. 508, 513, 555 and 565-

9 S. No. 95 (a Rerired Judge of the Bombay High Court).

10 S. No. 338 (A very eminent public man).

II S Nos. 12, 138, 139 (a Retired Sessions Judge), 145, 151 155,235
265, 278, 279, 280, 281, 284, 288, 289, _29o, 294, 295, 297, 299, 300,
320 and 332 (a retired Collector and District Magistrate).

\ 12 S. Nos. 344, 357 (a social worker and State Jail visitor), 365, 413, 414,
417, 46°: 46':   481:     5061 5x49 5x9: 523
and 552.



75

238. Those who favour total abolition are few in
number.

Very few High Court Judges have expressed themselves
in favour of total abolition'.

No High Court Judge who has expressed his individual
view has favoured abolition, except as already noted under
summary of views of High Courts'. '

None of the replies received from State Governments
or Union territories is in favour of abolition.

Of the replies 'received from Members of Parliament
and State Legislatures, very few are for abolition'.

239. Several Advocates have sent replies in favour of
abolition'.

240. No State Bar Council has expressed a view favour-
ing total abolition.

No State Bar Association has expressed a View favour-
ing total abolition.

241. As regards Sessions Judges and other Judicial
officers, and Assocations of Judicial Oﬁicers, very few of
them have sent replies in favour of total abolition'.

242. The number of District Bar Associations favouring
abolition is very small".

243. As regards Inspectors General of Police and Inspec-
tors-General of Prisons and District Magistrates, only one
Inspector General of Prisons" has favoured total abolition.

I S. No. 187 (Minority view of one High Court).
2 S. No. 187 (Minority view of one High Court).

3 8. Nos. 206 (for abolition except for waging war and treason); 215, 243

(for abolition, but not immediately); 2.47, 255 and 401 (Member of a
State Legislative Council who is also an Advocate).

4 S. No. IO4(b) (A Member of a State Bar Council); m8, 141, I49, 161
(ii), I61(iii), I6r(iv), 305 (an Advocate who has previously been a Member
of Parliament), 331, 405 (an Advocate who has been a Member of a State
Legislative Council) 406, 439 and 474.

5 S. Nos. 341 (A District & Sessions Judge in Maharashtra), 379
(A City Civil Court Judge and Additional Sessions Judge), 390 (A
District & Sessions Judge in the State of Gujarat), 433 (A District
and Sessions Judge in the State of Orissa), 443 (A District & Sessions
Judge in Gujarat), 446 (A Sessions Judge in Rajasthan), 507 (An
Additional District Judge in Kerala), 518, (A District and Sessions
Judge in the State of Gujarat), 528 (A Joint Civil Judge and Judicial
Magistrate in the State of Maharashtra), 558 (A District & Session
Judge in the State of Madras) and 561 (An Additional District and
Sessions Judge in the State of Madras).

6 S. Nos. 22.7 and 238.
7 S. No. I3I(i) (An Inspector (zeneral of Prisons).



Arguments
for aboli-
tion (ad-
vanced in
the replies)
set out.

76

244. Several public men, institutions and private per-
sons have favoured total abolition. It is not necessary to
enumerate them, but a ﬁew replies 1-2-3 make points worth
consideration, and these points are dealt with later'. Some
of the replies are from Zila Parishads or similar bodies5.

245. Those who favour partial abolition may be grouped
as follows:----
(i) one High Court";
(ii) two Judges of High Courts7;
(iii) some Members of Parliament; and State
Legislaturess; S
(iv) some oﬂicers of Governments (in their per-
sonal capacity)';
(V) one major Bar Association";

(vi) one Bar Council"; and
(vii) others".

246. The arguments which have been put forward in
the replies received on this question, may now be set out.
So far as those who hav.e supported total abolition are
concerned, one contention advanced is that there is always
a possibility that an innocent person may be hanged. It
is stated, that the conviction is based on the oral testimony
of witnesses to the occurrence or on circumstantial evi-
dence and the appreciation thereof by a human judge-. The
evidence, it is contended, may be tainted by so many' fac-
tors, and these may be coupled with the ineﬁiciency or
want of resources of the accused; and, further, the investi-
gation might have been coloured by corruption and mal-
practice. It is pointed out, that in several cases, the Privy
Council or the Supreme Court has set aside sentences of
death even after conﬁrmation by the High Court, and it is
argued, persons who do not command talent or ability for
taking their case to the highest Court would still suffer.

1 S. No. 479 (A leading Theosophist).

2 S. No. 315 (Dr. K. N. Katiu, in a published article).

3 S. Nos. 119, I22, 126 and 221.

4 See paragraphs 246 to 261 infra.

5 S. Nos. 277 (Zila Parishad in Rajasthan), 282 (Zila Panchayat Raj Oﬂicer

in Bihar), 285 (A Sarpanch of a Circle Panchayat in Madhya Pradcsh).

6 S. No. 136.

7 S. No. 105, and 397, in reply to Questions I, 3(a) and 6(a).
8 S. Nos. 206, 237 and 253 (Law Minister of a State).

9 S. No. 162 and 131(a).

IO S. No. 11o.|

11 S. No. us.

12 S. Nos. 107,133 (a State Law Commission), 150, 376 (Judge
of a City Civil Court), 378 (Judge of a City Civil Court), 380 (Judge
of a City Civil _Court), 386 (District and Sessions Judge), 449, 459
(a District and Sessions Judge), 464 (an Advocate), 465 (an Advocate), 487 (a
District and Sessions Judge). _~



77

247. Further, it is argued that capital punishment is a
serious blot on our civilization, that in the last 200 years
tremendous change has taken place in the attitude towards
capital punishment; that many offences which were capital
in England in the 19th Century have now ceased to be
capital'; that many countries in Europe have abolished
capital punishment and many States in America have also
abolished capital punishment, and that the people of India
with atiimsa should have abolished the death sentence long
ago.

248. It is also stated, that there are so many aspects,
namely, biological, social, psychological, economic, educa-
tional and moral, to the problem, and that social problems
should be tackled at the roots rather than in their
symptoms. It is pointed out, that modern concepts of
criminology and penology rightly demand a fundamental
re-construction and radical re-orientation of the existing
penal system. It is also stated, that society is not so far
advanced that it can demand the' life of another being,
whatever crime he might have committed. The deterrent
effect of capital punishment has been questioned also".

249. The reply of a State Government" tries to meet the
arguments usually advanced for abolition. First, the argu-
ment that life is a gift of the creator is met by stating that
the abstract theoretical doctrine that human life is sacred
Will work hardship if applied to a class of persons who
consider life of human being not so sacred; secondly, the
argument that retaliation is not a defensible basis for a
penal system is met by stating, that the dominant idea of
penology of imposing death sentence is the deterrent idea,
and that capital punishment is intended to serve, and in
most cases does really serve, as a deterrent. It is also
stated, that the consciousness of the general publiethat
certain kinds pf offences are punished with death itself
gives security to the general public to move about freely.
Thirdly, the argument that the death penalty is unjust and
inhuman is noted; the reply states that punishment is
evolved for the maintenance of security and peace for the
citizens in general, and what kind of offences should be
met with death penalty should be determined at a given
time and place having regard to the state of development
of citizens and their requirements for maintaining security
and safety.

250. One of the replies' states, that society is not so far
advanced that it can demand the life of another human

Mu»-Iwl"l'he replies wée received before the Murder (Abolition of Death Pe-
nalty) Act, 1965, became law.

2 Detailed treatment of deterrent effect falls under Question 2(b); see
paragraphs 334----369, infra.

3 S. No. 574.

4 S. No. 16I(ii).



'78

being, whatever he may have done. Further, there is
always the risk of an innocent man being hanged.

251. Another replyl states, that capital punishment
neither deters the criminal nor achieves the object of rend-
ering justice; that family feuds are carried on to such a
length that murders take place in the concerned families
in coming generations as a matter of retribution; that it is
based on the old principles "tooth for tooth", and on the
assumption that man cannot be cured. Since its deterrent
object is not achieved, the reply favours abolition.

252. Another reply2 points out, that studies conducted
in foreign countries reveal that the assumption that
a person who has once committed a murder will again
commit a serious crime is not warranted3. Again, it is
stated, if it is assumed that a person who has once com-
mitted a murder has a proclivity to repeat the same or
similar offences, and thus constitutes threat to human
being, that must be equally true in the case of a person
who has at any time committed any act of violence. Un-
assailable evidence, it is urged, is still lacking to show that
fear of punishment is the dominant factor which dissuad-
es human beings from committing socially forbidden acts.
History of punishment in the middle ages in Europe shows
that the increase in the number of capital offences did not
produce the expected result. It is also emphasised, that
the spectacle of the State taking away the life by judicial
killing tends to produce just the result contrary to what
is intended. It is also stated, that criminals are of three
classes, those who commit murder as a result of defective
personality or highly unfortunate social environment; those
swayed by extreme passion; and those who commit preme-
ditated murders. 'In the ﬁrst two cases, the deterrent effect
of death penalty is very negligible, while, as regards the
last case, it is very seldom that criminals carry with them
ﬁrearms and deadly weapons during their adventure so far
as India is concerned. It is also stated, that the assumption
that the fear of penalty deters them from carrying Wea-
pons should be tested by facts. The statistical analysis
made by the Royal Commission' is referred to in order
to show that in countries like Norway, Sweden, Italy, etc.,
the homicide rate has not been affected by abolition. _'lIhe
example of Travancore-Cochin is also cited. It is also
stated, that public opinion may not be easy to ascertain
in the matter of abolition or retention, and further, that
public opinion always ﬂuctuates with current events.
Moreover, it is not based on rational groundsl'.

S. No. 255.

S. No. 304 (A University Professor).
R.C. Report, page 228 cited.

4 R.C. Report, Appendix 6, cited.

5 Gowers. Life for Life, page 1336 cited.

DAN»-4



79

253. Another reply' emphasises the reformative aspect
of punishment, which, it is stated, is wanting in our penc-
logy. The chances of error, and the futility of capital
punishment as a deterrent, are also put forth as grounds of
abolition.

254. Dr. Katju, in an article2, made these points:--

". . . .The public conscience is said to revolt against
the death penalty, and the fear of a miscarriage of
justice and of an innocent person being hanged is ever
present.

"I know of one case reported in the Calcutta
High Court Law Reports where an old man was
accused of murdering a young girl and then doing away
with her body. He protested his innocence. He was
however tried, found guilty, sentenced to death and
hanged. Two years later the young girl returned to
her village home and said that she had just run away
out of sheer terror.

Ii: * # '

"During the past 12 years between ten and eleven
thousand people have been accused of murder each
year all over India. There Were protracted trials and
numerous acquittals, about 72-75 per cent by Sessions
Judges; later, another 15 per cent were acquitted by
the High Courts on appeal. And then many of those
convicted escaped the extreme penalty by the exercise
of the prerogative of mercy by State Governments and
by the President of India. Ultimately, only a small
number--between 100 and 150--go to the gallows every
year.

* # l I

"This aspect of the situation requires very careful
consideration. Every case involving the death sent-
ence causes numerous difficulties for the investigating
authorities and the courts concerned. Every one is
conscious throughout the duration of the case that a
humar; life is at stake, and the accused gets the bene-
ﬁts of even the slenderest doubt. This attitude is based

upon purely humanitarian consideration right upto the
President of India.

"Those who support capital punishment stress its
deterrent eifect and say its abolition will probably
lead to a larger number of murders, but the answer is
that if out of 10,000 to 15,000 people accused of murder

I S. No. 305.

2 Article in otatesman, December 19, 1961, "To Hang or not to Hang",
Enclosure to S. No. 315.



80

you punish with death only 125 or 150 in a year, it
appears that the phrase 'deterrent effect' has no real
meaning. Further more, the vast majority of these
murders are committed on the spur of themoment
without any premeditation and the murderers seldom
reﬂect that by their action they are running the danger
oi being sentenced to death.

"In death sentence cases, from the Magistrates up
to the High Court. the inconvenience, waste of time,
waste of effort and waste of money and human energy
is indescribable, and often guilty people escape.

"The problem is a perplexing one. I have, how-
ever, come to the conclusion, after considerable expe-
rience in many spheres of administrative and judicial
activity, that it may be worthwhile abolishing the
death penalty, at least as a temporary measure through-
out India. If mischievous results do not follow, then
a good day will have dawned in India with the extin-
ction of capital punishment. The law courts and all
administrative agencies and authorities up to the Presi-
dent of India will have a sigh of relief. The adminis-
tration of justice in all cases will also become a sure
proposition, and there will be fewer acquittals in
murder cases.".

255. Another replyl summarises the argument thus:---

'We do not consider that the death sentence acts as
a deterrent, for the various reasons enumerated below:

(i) Belgium, Finland, Norway, Sweden,
Switzerland, New Zealand and many states of the
U.S.A. have either abolished capital punishment
or allowed it to fall into disuse. Their statistics
not only show no increase in the homicidal rate
but also indicate decrease in many cases. On the
contrary, life sentences and long imprisonment
have proved more deterrent.

(ii) The. police would do their duty better
without the fear of having to bring a man to the
gallows.

(iii) Juries would do their duties better.
Decent and intelligent men avoid serving on juries
of murder trials, since they shrink from shedding
the blood of a fellow being.

(iv) Administration of law would be speedier.

(v) There would be less corruption in courts.

(vi) Executioners and others concerned suffer
from; the degrading and brutalising effect of such
wor .

I 3- N0.479 lA1eading Theosophist and a society of Theosophists)
(under Q. 2 (b)].



81

(vii) Witnesses and readers of excutions feel
a brutalising and hardening inﬂuence.

(viii) The criminal is-deprived of the chance
of reform

(ix) The nature of the punishment is due to a
barbaric tendency as an outcome of ignorance of
man's nature and of what happens to him when
he is violently thrown out of his body.

(x) It is immoral. The erring ones are infect-
ed in the moral plane. Why murder them when
we do not murder diseased people who also are a
menace to society? Why not cure morally ill'?

(xi) Justice might be miscarried and the inno-
cent slaughtered. Such cases do happen and are
on record.

(xii) The Wrong done by the murder is not
righted by another murder, since by this method
the victim is not brought back to life.

(xiii) The criminal is like a delinquent child
and requires intelligent guidance. We do not kill
naughty children but guide and educate them to
behave better.

(xiv) Sometimes the accused is like an insane
person. We do not kill insane people but
endeavour to rehabilitate them. Why kill a crimi-
nal for manifesting his mental aberrations?

(xv) "Though shalt not kill!" is one of the
commandments of Jesus. This is a universal ethical
injuction based on metaphysical philosophy and
reﬂected in all spiritual traditions.

(xvi) "Kill not----for Pity's sake--and lest you
slay the meanest thing upon its upward way".
Thus spoke Lord Buddha in enunciating the Pan-
chasila. Not without reason did he adjure his
hearers so".

256. On the other hand, those who have favoured total
retention emphasise that the time is not yet ripe in India
for abolition of capital punishment. The law and order
situation obtaining in the country has been referred to as
justifying its retention. It is also pointed out, that in most
progressive countries in the world, the average citizen is
Well informed and conscious of his duty to society and
has a healthy outlook on life, and does not lose his balance
except under provocation, while in India, because of lack
of education and proper social outlook, people are easily
upset emotionally and, (in suchuncontrolled state), are
'a grave menace to society. The deterrent effect of capital
punishment has been strongly emphasised'.

I Detailed discussion as to the deterrent effect falls under Q. 2(b).'
See paragraphs 334-369, infra.



82

257. In the reply of the Chief Justice of a High Court'
it has been stated, that a cold, calculated and brutal mur-
derer cannot be equated with a murderer committing the
crime in the heat of passion and other extenuating circum-
stances. In the former case, the reply states, the only
beﬁtting sentence is the sentence of death.

258. The reply of a High Court Judge2, who has had
extensive experience in the Court of Session also, states
that the existing law sufficiently achieves the deterrent
object, i.e., the objejct of preventing other persons from
committing serious crimes.

259. In reply of a District Bar Association in Madhya
Pradesh3, it has been emphasized, that in many parts of
the country the people are very backward and are tem-
peramentally very rash. Prices of land and food products
are going high; disputes about_ possession of lands are
increasing in great number; and gundas are actually hired
for obtaining forcible possession of property. «The inci-
dence of murder due to political rivalry is also increasing.
It is, therefore, stated that abolition will be a great risk.

260. An eminent public man', who had had rich and
varied experience of criminal law, and who has held very
high public offices, has expressed himself strongly against
abolition, in these words:----

"The deterrent effect of the well known and uni-
versally dreaded sentence of hanging is not to be
measured by statistics of cases. The Wicked and reck-
less thoughts of angry or gneedy man to do away with
a human obstruction in his way do not take active
shape because of the universally known law that kill-
ing means hanging of the offender. Many a murder
ends only with the thought of it. These do not come
to be numbered. If this death sentence is abolished,
hundreds of angry and foolish minds would take the
chance of 15 years in jail much more readily than they
do now. And the motives for such crime are increas-
ing these days, and jail life has lost most of its terrors.

"I therefore am clearly of opinion that judges
should take the motive and the distress of the offender
into account and be free to deal with the convicted
offender; but the death penalty should be there for
suitable cases so that men may abstain from killing
on account of the dread of the death sentence.".

I S. No. 393, reply to question 2(3).
2 S. No. 396, reply to question 2(a).
3 S. No. 426.
4 S. No. 338.



83

261. Those who have favoured partial retention, have
emphasised the unjustiﬁability of capital punishment,
except for brutal crimes, and have argued for liberalisation
of extenuating circumstances. Some of them would like
to abolish the death penalty except for waging war or
treason. Some would suggest adoption of a law similar to
the (English) Homicide Act, 1957'.

One of the suggestions is for retaining the death
sentence only for waging war and treason2:

Another reply suggests3, that the sentence of death
should be retained for offences under sections 194, Indian
Penal Code and for offences under s. 302, Indian Penal
Code only if attendant with very cruel circumstances. and
offences under section 396, Indian Penal Code only if
attendant with very cruel circumstances. Examples of
cruel circumstances given are--murder by burning, murder
by cutting to pieces, and murder by taking the victim
unawares.

Another reply states', that the imposition of death
-centence in a few selected cases of gruesome, premeditated,
cold-blooded and ghastly murders did act as a deterrent,
and that, capital punishment is found effective at some
notorious places with some classes of people. The reply
also suggests, that the sentence of death should be retained
for offences under sections 121, 132, 302, 303 and 396, Indian
Penal Code.

Another reply", while stating that capital punishment
is found to be effective at a particular place and with some
people only, seems to contemplate that it should be reserv-
ed for murders of a heinous character committed after
planning and cold calculations, and that it should be abo-
lished for the offence under section 307, Indian Penal Code.

The reply of a High Court Judge" states, that so far as
murder is concerned, the sentence of death should not
ordinarily be imposed unless there are aggravating cir-
cumstances on record, by reason of which the Judge con-
siders it proper to award the extreme penalty. Examples
of aggravating circumstances given in the Reply are-----
enormity of the crime (cold--blooded and premeditated),

I The re. ﬁes were received before the passing of the Murder (Abolition
of Death fenalty) Act, 1965. v_

2 S. No. 206. .

3 S. No. 237 (Member of aState Legislature) under Questions 3(a)
and 7(b).

4 S. No. 376 (A City Civil Court Judge, who has experience as
Sessions Judge in several districts).

5 S. No. 383 (3 City Civil& Sessions Judge), reply under questions 3(a)
and 6(b).

6 S. No. 397 (a High Court Judge) in reply to questions 1, 3(e)
and 6(3).



Arguments
to be
counter-
balanced
against
each other.

Conclu- 5
sion re- ,5
garding
abolition]
or reten-
tion.

84

unnecessary brutality, murder by a life convict, murder
with dacoity, etc. '

Another replyl suggests that capital punishment be re-
tained only for Waging war and abatement of mutiny.

TOPIC No. 19
Arguments for abolition considered

262. We have carefully considered these arguments.
The agruments for and against have to be counter-balanced
against each other. Ultimately, the question must- be
decided on the total result of such counter--balancing. No
single argument for abolition or retention can decide the
issue. But, in arriving at any conclusion on the subject,
the need for protecting society in general and individual
human beings must be borne in mind".

263. It is difficult to rule out the validity of, or to deny
the strength behind, many of the arguments for abolition.
Nor do we treat lightly the argument of irrevocability of
the sentence of death, or the need for a modern approach,
or the severity of capital punishment or the Strong
feeling shown by certain sections of public opinion, in
stressing deeper questions of human values. Having re-
gard, however, to the conditions in India, to the variety
of the social up-bringing of its inhabitants, to the disparity
in the level of morality and education in the country, to the
vastness. of its area, to the diversity of its population and
to the paramount need for maintaining law and order in
the country at the present juncture, we do not think that
the country can risk the experiment of abolition of capital
punishment. The ﬁgures of homicide during the several
years in India have not shown any marked decline". The
rate of homicide per million of the population is consider-
ably higher in India than in many of the countries Where
capital punishment has been abolished'. There are many
parts oi' the country where a wave of crime shoots up
occasionally. In many States, there are districts which are
notoriously criminal. Ar' uments 'which would be valid
in respect of one area of t e world may not hold good J11
respect of another area in this context, and similarly, even
if abolition in some parts of India may not make a material
differeme, it may be fraught with serious consequences in"
other parts.

I S. No. 459 (a District & Sessions Judge) in reply to questfons
I and 2(a).

_2 This_would show the importance of the deterrent object of the
capital punishment and of a consideration of that questicn.

3 The ﬁgures of homicide are given elsewhere.
4 See paragraphs 314-316, infra.



85

264. The suggestion that death penalty may be abolish-
ed as an experiment (so that it can be re-introduced after
abolition) is an argument to which we have given our
thoughtful attention; but we have to take note of certain
possibilities. Between abolition and re-introduction may
intervene an era of violence--we do not say that this is a
certain consequence---but it is a possibility which cannot
be ignored. Irreparable harm would then have been done
not only to the victims of such violence, but to the general
cause of security of the society. Once the forces of lawless-
ness are let loose re-introduction of capital punishment
may not have the desired effect of restoring law and order
immediately. Further, Parliament may not be sitting all
the time, and the interval that might elapse before the law
is again actually amended would prove disastrous. On a

' consideration of all the issues involved, we are of the opi-

nion that capital punishment should be retained in the

present state of the country.

265. We state below, brieﬂy, our views as to the main
arguments that have been advanced in favour of aboli-

tion:-~-

(1) General.--The general argument against capi-
tal punishment, that it is a legalised, revengeful and
cruel destruction of human beings, really attempts to
summarise so many facts of this big question. In the
ﬁnal analysis, capital punnishment is a question of
values, or rather, of the balancing of values, and the
detailed discussion of each argument, that follows, is
only intended to show the relative importance of each.

(2) Immoral.--That the taking of life by the State
is not morally justiﬁed, is an argument which could
perhaps be answered by drawing attention to the ends
for which the State so takes life. One of those ends
is the very protection of human life, by protecting the
individual and by protecting the society.

(3) Ivnhuman.---To some extent, the argument that
the penalty of death is inhumar.-1 is connected with
the mode of execution. However, all punishments
comprise suffering. In fact, the very concept of punish-
ment implies suffering. It is true that capital punish-
ment is different in quality from all other punishments,
and to that extent, the question as to its justiﬁability
assumes greater importance than questions as to the
justification for any other punishment.

I It would be interesting to note that the Privy Council has held
that the mandatory death penalty for arson under section 33A,
and Order (Maintenance) Act, 1960 of Rhodesia, does not contravene
section 60 of the Rhodesian Constitution, which prohibits "torture or
inhuman or de ading punishment". Runyowa v. R., The Times, Jan-»
may 20, 1966; 1966), 1 Current Law 385-C (January 1966).

Law'

Argunicntsm
for aboli-
tion con-
sidered

in detail.



86

(4) Non-violence of Indian tradition.--Stress has
been laid on the principle of non-violence as requiring
the abolition of death penalty. But it must be remem-
bered, that non-violence is an "ideal", and practical
«diﬁiculties have to be borne in mind in determining
how far the action of the State and the policy of the
law should conform to that ideal. All punishments
imply suffering, and (excepting pecuniary punish-
ments), all the usual punishments imply some degree
of violence to the person. Moreover, protection of the
society from violence is' an object of punishment (and
particularly, of capital punishment); and the retention
of capital punishment, far from being inconsistent with
the doctrine of non-violence, actually promotes it.
Opinions may, of course, differ as to whether the
particularly, of capital punishment); and the retention
law and order is desirable, and, so many aspects of the
question have to be considered before a decision can
be reached on the subject. It cannot, however, be
asserted, that non-violence requires the abolition of the
death penalty irrespective of other practical considera-
tions.

(5) Irrevoc:zbility.----This has
separatelyl.

been dealt with

(6) Human Freedom.--This is a fundamental ques-
tion concerning all punishments. If an offender is not
a free agent, then no punishment is justiﬁed. The
argument would take away the very basis for all
punishments. It may also be pointed out, that Where
the circumstances show that the volition of the offen-
der was affected, the Courts in India are free to dis-
criminate in respect of punishments.

(7) Morbid.--Executions as such are not given
much publicity in India, and, therefore, every execu-
tion may not lead to violence i.n its wake.

(8) Mockery.--It is stated that hanging is a mock-
ery of punishment and that it is the oﬁicers who look
guilty and feel ashamed. There is, however, no evid-
ence to show that this is so.

(9) Injury to family.--That the sentence of death
causes injury to persons who have no part in the crime,
ie, the family of the victim, is a factual proposition,
which it will be useless to deny. In all punishments,
there is some suffering to the members, though, no
doubt, death causes more suffering than any other
punishment. How far_that consideration should be
taken into account is a question of values.

1 See discussion as to irrcvocability; paragraph;--g'65'_275, ,',,f,a_



 ' 37

(10) Unequal.--That persons who have no suffi-
cient ﬁnancial means, or who for some other reason,
cannot ﬁght the case to the last, suffer, and that the
law proves to be unjust to them, is an argument which
concerns the subject of legal aid rather than the
substantive penal law'.

(11) Jury system.--Whether it would be better to
leave the discretion as to the sentence to the Judge or
to the jury is a matter on which conflicting views have
been expressed? So far as India is concerned, how-
ever, experience of the working of the present system,
under which the question of sentence is left to the
Judge, has not shown the system to be faulty in this
respect. V ' .

(12--17). Deterrent eﬁ'ect.--The various arguments
connected with deterrent effect of capital punishment
need not be dealt with here'.

(18) Retributive object.--The retributive object of
capital punishment has been the subject-matter of
sharp attack at the hands of the abolitionists. We
appreciate that many persons would regard the instinct
of revenge as barbarous. How far it should form part
of the penal philosophy in modern times will always
remain a matter of co'i-itroversy. 'No useful purpose
will be served by a discussion as to whether the instinct
of retribution is or is not commendable. The fact re-
mains, however, that whenever there is a serious
crime, the society feels a sense of disapprobatiorg. If
there is any element of retribution in the law, as ad-
ministered now, it is not the instinct of the man of
jungle, but rather a reﬁned evolution of that ir.'stinct--
the feeling of special abhorrence of murder. That this
feeling prevails in the public is a fact of which notice
is to be taken. The law does not encourage it, or exploit
it for any undesirable ends. Rather, by reserving the
death penalty for murder, and thus visiting this gravest
crime with the gravest punishment, the law helps the
element of retribution merge into the element of
deterrence'.

(19) Eye for an eye.-----It will suffice to note that
the system of invidual revenge is no longer recognised.
Social abhorrence is intended to /take the place of
revenge which would otherwise manifest itself in the
persons concerned taking the law into their own hands.
Punishment is meted out by the society, and not by the
individual, through the organs of society and not by

I This mainly concerns legal aid.

2 See also discussion relating to discretion of the courts; para-
graphs 541-578, infra.

3 See_ separate discussion relating to deterrent effect; paragraphs
308-372. infra-

4 See the R.C. Report, page 18, paragraph 53.

8--122 MofLaw.



88

the iamily of the individual, for the protection of
society and not for the vindication of the wronged
individual. Ilf the society ,does not express its abhor-
rence of the offence of murder by appropriate sen-
tence, there is a danger that individuals may take the
law into their own hands, as a large number of cases
from the Northern part of India will show.

(20) Effect on trial.---It is stated that juries are
unwilling to convict in view of the possibility of the
sentence of death. Certainty of punishment, it is stated,
is thus reduced. thereby affecting deterrent effect
of the penalty of death. As to this argument, we wish
to point out, that in India, the system of trial of murder
and other capital offences is somewhat «different from
that in Western countries. "Trial by jurylis not in
force uniformly throu hout the country. (In fact, it
is practically abolishe . Even where it is in. force,
the ﬁnal decision in the Court of Session on questions
of fact does not entirely rest with the jury, as there are
provisions in the Code of Criminal Procedure where-
under, if the Sessions Judge disagrees with the verdict
of the jurors or the majority of them, he can refer the
matter to the High Court? Further, the question of
sentence is also not left to the jury3. Trained judicial
ofﬁcers, with long experience, are not likely to be in-
fluenced by sentimental considerations.

In this connection we may refer to the observa-
tions in an English case', which, though made in the
context of contempt of court are applicable to the point
under discussion also. "A judge is in a very different
position to a juryman. Though in no sense super-
human, he has by his training no difficulty in putting
out of his mind matters which are not evidence in the
case. This indeed happens daily to judges on Assize.
This is all the more so in the case of a member of the
Court of Criminal Appeal, who in regard to an appeal
against conviction is dealing almost entirely with
points of law and who in the case of an appeal against
conviction is considering whether or not the sentence
is correct in principle.".

(21) Living conditions and other factors.,----It is-
true, that the sentence of death by itself may not ex-
clusively inﬂuence the rate of homicide, and in those
countries where the rate was low, it might have been
low because of a better standard of living, and level
of education of the people. But this would not, we are

I See sections 268-269, Code of Criminal Procedure, 1898. A
to High Courts, see section 305, Code' of Criminal Procedure, 1898.

2 See sections 306, 307 and 374 to 378, Code of Criminal Pro-
cedure, 1898. . .

3 See sections 374-378, Criminal Procedure Code, 1898.
4 R. v. Duffy, (1960), 2 All ER. 39:, 895 (Lord Parker c.J.).



89

afraid, constitute an argument for abolition at all.
What has to be emphasised, is, that these factors also
act in conjunction with the sentence of death, or any
other sentence that may be substituted.

(22) Public opz'nion.--How far public opinion
favours abolition or retentionl, and secondly, how far
such opinion should be taker; into account, are two
important questions that have often been the subject-
matter of debate whenever the question of abolition
or retention is considered. We believe that though
public opinion is not a conclusive factor, its import-
ance cannot be brushed aside. In this as in many other
ﬁelds where the law operates, there is a constant inter-
action between law and public opinion. Sometimes
the one is advanced, sometimes the other. But a wide
hiatus between the two might bring the law into dis-
repute. If public opinion favours retention, and yet
the law ventures to abolish the sentence of death,
there is a danger that public opinion might assert itself
in a reekless and unrestrained manner by killing or
injuring the offender, particularly when the offence
is a brutal one arousing intensely the sentiments of
the public.

It is true, that those who argue for abolition also
reﬂuzect public opinion. But, then, their views have to
be weighed against the views of those who still favour
rete-:r1tion--we do not say that the matter can be de-
cided only on the numerical strength of either.

(23) Opinion of Judges, etc.--lt is stated that
J udges. lawyers and police-officers are not in any par-
ticularly favourable position for expressing a view on
this question, and that they see the offender only when
he is detected. It cannot, however, be denied, that the
persons mentioned above have more points of contact
with the behaviour of criminals than others. Further,
it would not be always accurate to assume that their
knowledge of the conduct of the criminal begins only
from the point of detection; -- often, the relationship
between the accused and the victim, prior to the crime,
has to be investigated and gone into by them. We do
not go to the length of saying that the views of judges
and lawyers should be treated as concluding the ques-
tion. But they deserve special consideration. They
are concerned with the administrationand application
of the law, and the whole evidence comes before them.
To that extent they are in a superior position.

(24) Prison administration.»-We agree that the
difficulty of maintaining in the prison prisoners con-
victed of capital offences can be no argument for reten-
tion.

I The replies received to the Commission's Questionnaire on Question
I are sunimarised elsewhere in the discussion on that question.



90

(25) Sympathy for the family of the victim.--We
also agree, that mere sympathy for the family of the
victim does not justify capital punishment. We should,
however, hasten to observe, that, in so far as this
sympathy plays its part in building up public abhor-
rence of the crime, it is a commendable one, and may
constitute a link in the process of merger of other ele-
ments of punishment into the deterrent one'.

(26) Experiment.--We do not think that in the
present state of the country, India can risk an experi-
ment which may put into danger the lives of numerous
citizens. It may not be easy to restore the-status quo
if the experiment fails--as it may, in those parts of the
country which are notorious for crimes;

(27) Rcformation.--That a criminal can be reform-
ed is a consideration to which even now the law is not
blind. The discretion left to the court in the matter
of sentence leaves ample room for considering whether
the offender is a person who car; be retrieved from his
evil ways. It is unnecessary to cite here cases in
which, on the ground of age, ignorance, or other factors
which show the possibility of reformation, courts have
refrained from passing the death sentence".

(28) Abolition 1-to risk.--"It has been stated, that the
the fear that abolition constitutes a risk in society is
childish and primitive, andithat, rather, it will incul-
cate a spirit of reverence for life in the people, who will

' have the example of the State before them. Mainly,
this argument raises the question of the deterrent
effect of capital punishment, which is discussed
elsewhere3, and we need not tread the same ground
again. But we would like to draw attention to events
that led to the restoration of capital punishment in
several countries'. Opinions may differ as to Whether
the restoration in those countries was really due to an
increase in homicide or due to political considerations,
and, if it was due to any assumed increase in the rates
of homicide, whether there was really any factual basis
for that assumption. But it cannot be gainsaid, that
the experience of those countries constitutes at least
a reasonable argument for believing that the fear of
capital punishment operated on the minds of human
beings, and conversely, that the removal of that fear
led to an increase in homicide.

I Compare discussion relating to the retributive object of punishment
paragraphs 295-299, mfra.

See Analysis of case law.
See paragraphs 303-372, infra.
See paragraphs 3o6---308, infra.

N

480-'



91

(29) Experience of other countries regarding con-
victs.--That convicted murderers do not kill again, is a
proposition which has been urged in favour of aboli-
tion. The Royal Commission recorded some evidence
and collected certain ﬁgures as to the conduct of mur-
derers after release from prison', and observed that the
evidence and ﬁgures would tend to show that released
murderers, in general, behave well after leaving prison.
The conclusion of the Ceylon Commission'? also was,
that the danger to the community from such prisoners
on their release is minimum, particularly if they are
sentenced to life imprisonment and a ﬂexible and un-
determined system of release accompanied by after-
care supervision replaces the present system. It must,
however, be noted, that much depends on the personal
idiosyncrasy of the offender.

Further, it would not be out of place to point out,
that these ﬁgures relate to the conduct of prisoners,
who by the very hypothesis, were not sentenced to the
highest penalty, because their cases deserved special
consideration and sympathetic approach. The same
cannot be said of those who were sentenced to death.
In the case of the latter categories of offenders, it may
not be safe to predict that they would, if they had
been sentenced to the lesser sentence, also have be-
haved in the same way. To this extent, the value of
the ﬁgures obtained in respect of retentionistcountries
is diminished. Moreover much depends also on the
training which a prisoner receives in a prison, the
social hierarchy to which he belongs, the environment
in which he lives, and the "after-care" given to him.

(30) Death penalty a lazy answer.--If the object
which can be achieved by the penalty of death could
be achieved by any other penalty, no one would for a
moment justify its retention. But the very question
is, whether the objects could be so achieved. This
again raises the issue of deterrent effect?

(31) Onus.----The onus, it is stated, lies on those
who favour retention, as the question at issue is-of
human life. This is, perhaps an argument which could
be advanced by retentionists also in their favour, since

it is the protection of human life which is the mainstay
of their case.

15 I R.C. Report, page 229, paragraph 651, and page 486, Appendix

5' 2 Ceylon Report, page 59, paragraph 55 and page 58, paragraph

3 The question of deterrent eﬂ' t 's dealt 'th paratel '
paragraphs 303-372. infra " cc 1 W' 3' y'm



Irrevoca-
bility.

Constitu.
tzonal.

S ub stantivc.

92

TOPIC NUMBER 20
I rrevocability

266. An argument which deserves our most anxious
consideration is that based on the chances of error and
execution of an innocent person. {It is stated, that one
peculiar feature of capital punishment, as contrasted with
other punishments, is that it is irrevocable, and if an
innocent person is sentenced to death on a charge of a
capital offence and executed the injustice caused to him
cannot be retrieved.

Some cases of erroneous convictions are cited in some
of the studiesl.

We have not the slightest intention of underrating the
paramount importance of ensuring that no innocent person
is subjected to any punishment by a criminal court, much
less to a punishment depriving him of life- Nor do we
intend to answer the argument by stating that in no cir-
cumstances would an innocent person be executed. All the
same, we would like to draw attention to the safeguards
which the law has anxiously provided for avoiding any
such unfortunate consequence. Those safeguards are con-
tained in the Constitution, in the substantive law, in the
procedural law and in the administrative orders in force,
and are re-inforced by the prerogative of mercy, and can
be classiﬁed below=--

267. Every person, who is arrested, has the right to
consult and to be defended by a legal practitioner of his
choice? The Supreme Court has jurisdiction to entertain
appeals where the accused has been sentenced to deathi',
where the requisite conditions of article 134 are satisﬁed;
in other cases also, the accused can appeal to the Supreme
Court by obtaining special leave'. The Supreme Court has
the power to review its' judgments'.

268. A person who gives or fabricates false evidence
with intent to procure conviction of another person of a
capital offence, is himself punishable with death, if an
innocent person is convicted and executed in consequence
of such false evidence". There are other provisions dealing
with false evidence and offences against public justice'.

I Mr. Justice B. N. Banerjee, "Abolition of Capital Punishment"
(1965) June, Vol. 2, No. 2, Law Quarterly (Journal of the Indian Law Insti-
tute, West Bengal Unit), I23, I28.

Article 22(1) of the Constitution.

Article 134(1) of the Constitution.

Article 136 of the Constitution.

Article 137 of the Constitution.

Section 194, Second paragraph, Indian Penal Code.
Section 182 and sections 191 to 229, India11,«PeI1al Code.

\lO\UI.|':-UJN



93

269. The procedural safeguards can be sub--divided Procedural

into---

(i) those relating to trial;
(ii) those relating to judgment and sentence;
(iii) those relating to appeals.

A case relating to a capital offence can be tried only
by a Court of Session1 (or a High Court). There are pro-
visions requiring pre-commitment by Magistrates in such
cases? The actual trial before the Court of Session, whe-
ther it is held by the Judge himself or with a jury, must
proceed in accordance with the Code3. For enabling the
accused to explain any circumstance appearing in the evi-
dence against him, the Court must question him generally
on the case after the close of the prosecution''. The accus-
ed is free to give evidence on oath5. The law of evidence"

contains elaborate provisions for excluding from evidence
confessions obtained improperly.

270. Coming to the stage of judgment, if a sentence of
death is proposed by a Court of Session, it must be con-
firmed by the High Court''. The powers of the High Court,
on a reference for such conﬁrmation are very Wides. The
conﬁrmation must, when the High Court consists of two or
or more Judges, be made, passed and signed by at least
two of them". The Court of Session, at the time of passing
a sentence of death, in cases where it is appealable as a
right, must inform the accused of the period within which
the appeal must be preferred,'°.

271. Where the trial was held by the Court of Session,
there is a right of appeal to the High Court on conviction".
Where the trial was held by a Judge of the High Court
in its original criminal jurisdiction, there is a right of
appeal" to the High Court in certain cases. In addition,

the Constitution provides for appeal to the Supreme Court
in certain cases".

81 Sect_io'1 28 and Second Schedule, Code of Criminal Procedure
189 .

Sections 206-220, Code of Criminal Procedure, 1898.
Sections 266-335, Code of Criminal Procedure, 1898.
Section 342(1), Code of Criminal Procedure, 1898.
Section 342A, Code of Criminal Procedure, 1898.
Sections 24 to 27, Indian Evidence Act, 1872.

7 Section 31(2), Code of Criminal Procedure, 1898, and sections
374--378, find-

8 Sections 375-376, Code of Criminal Procedure, 1898.
9 Section 377, Code of Criminal Procedure, 1898.
10 Section 371(3), Code of Criminal Procedure, 1898.

Oskll-#035)

11 Section 410, Code of Criminal Procedure, I898, subject to sec-

tion 418. ~
x2 Section 411A, Code of Criminal Procedure, 1898.
13 Articles 132, 134 and 136, Constitution.



Prerogative
of mercy.

adminism-
IIVC.

94

272. Lastly, these are provisions dealing with the power
of the President and the Governor to grant pardon, re-
prieve, respite or remission in respect of the punishment
of death, or to suspend, remit or commit the sentence of
death, under articles 72 and 161 of the Constitution, and
the power of the Government to suspend, remit or com-
mute such sentence under sections 401-402, Code of Crimi-
nal Procedure, 1898.

273. The assistance of counsel is provided at the cost
of the State in all capital cases'.

274. The above resume of statury provisions will show
the anxious concern of the law to ensure that the chances
of error are kept to the minimum. That minimum, per-
haps, will never be a zero. We must constantly endeavour
to bring it as near as possible to zero. Cases of erroneous
conviction, whether noticed officially or unofficially, deserve
to be looked into when they are brought to the notice of
the authorities, to prevent a recurrence of such errors.

We hope, however, that such cases have not been many.
After passing through the sieve of judicial scrutiny under
the provisions already set out. and the scrutiny applied in
proceedings for the exercise of the prerogative of mercy,
it should be difﬁcult--we do not say that it would be im-
possible--for a case to retain elements of material false-
hood. If, in spite of such scrutiny, such elements survive,
that only shows the need for keeping the procedural and
other provisions constantly under review. Elsewhere, in
this Report, we ourselves have raised and discussed the
question of improvements in the provisions relevant to
safeguards against error'. But, viewing the matter in its
proper perspective, we are not in a position to say that the
possibility of error is an argument which can totally dis-
place the paramount need for a provision intended to pro-
tect society. ~

275. We give below some of the important arguments
advanced under the head of "erroneous conviction", and
state brieﬂy the safeguards---existir.'g or proposed:----

I 2

(1) Conviction is based on the oral The trial is held before an expe-
testirnony of witnesses or cira.1m- rienced oﬂicer. The sentence of
stantial evidence. Both suﬁer death when passed by a Sessiqns
from weaknesses. .71ldEe, is subject to co ,1

by' the High Court, and the con-
ﬁrmation must be made by at
least two Judges. There is fur-
ther a limited right of appeal to

1 Detailed discussion of legal aid to accused is made separately, see para-
graphs 1166-1176, infra.
2 see, for example, discussion relating to appeals in capital cases

' (Question 10 of our Questiomaire) (Paragraphs 967-989, infra.).



95

2

the Supreme Court. These safe-
guards are intended to ensure, as
far as possible, that defects or
discrepancies in the evidence are
carefully considered.

(2) Witnesses may lie In addition to the usual safeguards
against false evidence, namely,
efﬁcient cross-examination by coun-
sel for the accused and power of
the Court to observe the demeanour
of the witnesses and to take
into account contradictions with
previous statements made before
the Police or before the commit-
ting Magistrate, there is the addi-
tional safeguard of the sentence of
death provided for giving false
evidence in such cases.'

Faulty {appreciation by the trial
Judge is subject to correction by
at least two Judges of the High
Court, sitting in conﬁrmation pro-
ceedings.

(3) Appreciation of the evidence by
' the Judge may be faulty.

(4) Accused may not be adequately Separate discussion relating to legal

represented by counsel.

(5) Investigation might have been
coloured by corruption and mal-'
practice.

(6) Persons who do not command
talent or ability for taking the case
with the highest court, would
suffer.

Investigation

aid to the accused may be seen.'

into homicide cases
is usually done by, or under the
direct supervision of, senior Police
ofﬁcials.

A case involving sentence of death
must, even now, go up to the
High Court. As regards appeals
to the Supreme Court, separate

discussion may be seen."

CHAPTER 5
OBJECTS OF CAPITAL PUNISHMENT
TOPIC No. 21 '
Objects of capital punishment

276. We may now proceed to an examination of the
objects of Capital Punishment.

I Section 194, second paragraph, Indian Penal Code.

2 See discussion relating to legal aid to the accused, paragraphs II66--
1175, infra.

3 See discussion relating to appeals to the Supreme Court, paragraphs
957-989, mira-

Objects of
capital
pumsh-
ment .



-'Question

.:2(a)-

96

For convenience of reference, these objects, as suggest-

»ed in the literature on the subject, may be enumerated as
-follows:--

(i) Deterrence;
(ii) Retribution;
(iii) Disabling;
(iv) Avoidance of lynching, and private revenge;
(V) Disapprobation by the public;
(V_i) Atonement by the offender.
Of these, the ﬁrst two are those most frequently put

' forth, and subjected to approval or disapproval.

TOPIC No. 22
Ob,'ects of Capital Punishment----Answer to Q. 2 (a)

277. We had in our Questionnaire put aespeciﬁc ques-
tion about the object of capital punishment. The ques-
tion1 was as follows:--

"What, in your opinion, is the object of capital
punishment? Does the existing law sufficiently
achieve that object ".

As was expected, most of the replies on this question
have stressed the deterrent object of capital punishment.
That object has been described from its various aspects,
such as, to preserve the social order, to deter persons from
crimes, to act as a deterrent in respect of serious offences,
to deter persons from homicide, or more elaborately, to
deter anti-social and criminal elements who may not (in
the absence of such punishment) hesitate to take away'
life or to commit other offences which are capital at
present. Detailed discussion as to how far the deterrent
object has been achieved, falls under Question 2(b)2.

278. Another object which has been mentioned in the
replies is, the retributive one or "social justice" as reﬂect-

ed in the mind of the society to obviate private vendetta.
But several replies have expressed disagreement with

this proposition, either (i) by_ stating that vengeance,
("tooth for tooth and eye for eye") is not at all the object
of capital punishment, or (ii) by stating that retribution
is hardly an appropriate function of the State, or (iii) by

arguing that it is "impossible to determine What penalties \

provide the varying but exact amount of retribution cal-

led for by a list of crimes ranging, e.g., from theft of a

1 Question 2(a) in the Questionnaire.

2 See discussion of replies under Question 2(b); Paragraphs 334"
369, infra. , " ' "



97

handkerchief to murder," or (iv) point out that even this
retributive object has not been sufficiently achieved.

279. The reply of a High Court J udgez states the object
of the punishment of death to be three-fold, namely, ﬁrst,
retributive with reference to the murder itself, secondly,
deterrent on those persons who might under the inﬂuence
of anger, greed or religious frenzy feel tempted to take
other people's lives; and, thirdly, morally satisfying the
feeling of society that wrong-doers are likely to be punish-
ed eﬁectively.

280. The reply of a State Government?' states, that the
object is two-fold, (i) primarily as a deterrent, and (ii) to a
lesser extent, retribution. The reply points out, that the
object is such that one cannot expect to achieve it fully,
but, since the penalty of death inevitably acts as a deter-
rent, the object can be stated to have been sufficiently
achieved.

. 281. The reply of another High Court J udge4 states that
some element of retribution is, of course, involved in all
punishments, in the sense that a decision as to whether
a person is punishable must be based on his past actions;
but that the principal object of punishment may be
stated to be the protection of society, which is sought to
be achieved partly by reforming the criminals and partly
by deterrence.

The reply of another High Court Judge5 states that the
object is deterrence, and that it is a principle of criminal
jurisprudence that murder (deliberate homicide) should
be deterrently punished with the gravest penalty.

Another High Court J udge5 describes the object as "to
mark the crime which carries with it the death penalty
as the most heinous, and to prevent it.".

In the reply of another High Court Judge", it has been
stated that a more subtle meaning has to be given to the
word "deterrence". The reply refers to a case which
occurred a few years ago, where the entire family of an
Advocate was done to death on the outskirts of Bangalore,

1 Quoting from the Manual of Correctional Standards, issued by the
American Corrections Association, (1965), page 9.

2 S. No. 251 (A High Court Judge).
3 S. No. 242 (A State Government).
4 S. No. 230 (A High Court Judge).
5 S. No. 262 (A High Court Judge).
6 S. No. 262 (A High Court Judge), under questions 1 and 2.

7 Observations of Lord Denning about emphatic denunciation by the
immunity cited.



98

by a murderer in the hope of gain. The community felt
shocked beyond words; the necessity of inﬂicting death
penalty in similar cases for proved offenders illustrates the

point made above.".

The reply also proceeds to deal with the point made by
Dr. K. N. Katju', and states that the reasons given by Dr.
Katju for abolition that so few persons ultimately receive
the death penalty, and that the severity of the punishment
leads to too many acquittals, "appear to be really the pro-
per reasons for retainingvthe capital sentence for murders
committed in the circumstances which shock the commu-
nity by their aggravated circumstances or by premedita-
tion.".

The reply of another High 'Court Judge' discusses the
various theories (the ancient theory of placating the God
and expressing group disapproval by removing the culprit,
retribution theory, and". theory of deterrence), and notes
the criticism levelled against each theory. The reply, how-
ever, states that none of these theories seem to state the
real object of capital punishment.

The reply of the Chief Justice of a High Court" st tes
that the main object and the sole justification of cap tal
punishment is its deterrent effect on persons who might
otherwise take away the lives of their fellow beings.

282. Most of the District and Sessions Judges have
emphasized the deterrent object of capital punishment, and
stated that it is achieved sufﬁciently or to a considerable
extent.

283. One of the replies" emphasizes that the object of
capital punishment is not tooth for tooth, but to create
caution or realisation in the mind of a murderer that he
will also meet the same fate as his victim.

284. Another reply5, while stating that the principal
object is prevention of offences, states that at times there
is an element of vindictiveness which cannot be left out of
sight, and that both public and personal sentiments demand
that the person who has made another person suffer un-
justly should be made to sufferhimself.

285. In the reply of a very senior Advocate of the V

Bombay Court", the object of capital punishment is describ-
ed as two-fold, namely, to punish the killer adequately for

1 Dr. K. N. Katju's article "To hang or not to hang" which was pub-
lished in the Statesman of December 19, 1964. ~

2 S. No. 316 (A High Court Judge).

3 S. No. 317 (Chief Justice of a High Court).
4 S. No. 367.

5 S. No. 371.

6 S. No. 318.



99

his cruel and wicked crime; and, secondly, to serve as a
deterrent not only to prospective criminals, but also to the
average citizens who have a natural dread of capital punish-
ment.

286. The reply' of the Chief Justice of a High Court
states, that "the ﬁrst and primary object is that it should
act as a deterrent. The second object is that the punish-
ment should correspond with the gravity of the crime. In
regard to punishment, a cold, calculated and brutal murder
cannot be equated with a murderer committing the crime
in the heat of passion and other extenuating circumstances.
In the former case the only beﬁtting sentence is the
sentence of death.".

287. The reply of a City Civil Court and Additional
Sessions Judge? states, that the experience of Sessions
Judges and practising Advocates on the criminal side shows
that the accused as well as the common man does have the
fear of deathsentence; even in ordinary or casual conver-
sation, expressions such as "What will you do at your
worst? You would not be able to hang me" are met with.

288. The reply of a High Court Bar Association3 states,
that the primary object of punishment is retribution--in
the sense that punishment looks to the past and originates
in the instinct of vengeance. "One of the purposes of
punishment is to serve as an outlet, a kind of safety valve
for the indignation of the community. All cases ultimately
depend on their enforcement upon public sentiment in their
favour. Fear of punishment protects a man against him-
self. Both the deterrent theory and reformatory theory
are inadequate to express the Whole truth about punish-
ment.".

289. The. object of removing a person from the world
for ever, and thus protecting the society, is stressed in the
reply of one of the Sessions Judges'.

290. In the reply of a District Panchayat Officer' it has
been emphasised, that capital punishment gratiﬁes, as no
amount of imprisonment can, the "natural and healthy
resentment" of the relations and friends of the murdered
man and it is an effective check on, murder.

291. There has been a strong objection in one of the
replies to the retributive aspect, on the ground that the

1 S. No. 393.
S. No. 484, under "additi0na1 note".

3 S. No. 493 (A High Court Bar Association in a Presidency
(own).

4§ . No. 516.
. No. 425.



Aspect of
punish-
ment as
a deter-
rent.

100

prejudice that the murder should not go unavenged has in
several cases, been the cause of a sentence of death'.

292. The retributive aspect has been expressed in some
of_the replies 2-3-_* in a different form, namely, to allay the
grief of the family of victims, and to give consolation to
the relatives of the murdered person.

293. One object which has been mentioned in some of
the replies is that of "disabling", that is to say, the object
of dotng away with a person who, if allowed to live, may,
on regaining liberty, be a serious menace to society.

TOPIC N o. 23

Conclusion regarding object--Deterrent object strongest
justiﬁcation--'retrtbutive object how relevant

294. For the present purpose, it is not necessary to enter
into a detailed discussion of the various aspects of punish-
ment as) a deterrent. Punishment, in general, seeks to
control future events in "three ways". It seeks---

(a) to stop the offender from offending again;
(Particular deterrence);

(b) to deter other potential offenders; (General
deterrence); and

(c) to protect' the society from the persistent
offender". (Protection).

It has been also pointed out", with reference to (a)
above, that whether the punishment aims at deterring the
offender or at reforming him, the real object is to check
his criminal career.

As has been observed7, to some extent it is one of the
objectives of practically every sentence to ﬁx a penalty
which will deter others from committing a like offence or

I The decision in Gurdev Singh V. Emperor, (A.I.R. I948, Lab. 5)
has been referred to in this connection. But that decision does not
go so far, and (as far as is relevant), merely holds that the sentence
of death could not be refused on the ground of age of the convicted
person (alleged to be 19 to 20 years).

2 S. No. 154 (A State Government).

3 S. No. 166 (An Inspector-General of Prisons).

4 S. No. 161 (A Member of the Bar through the Bar Councilof
India). '

56f. Report of the Interdepartmental Committee on the Business
of the Criminal Court, (1961), Cmd. I289 (Streatﬁeld Committee),
page 79, paragraph 271.

6Report of the Interdepartmental Committee on the Business of
he Criminal Courts, (1961), Cmd. I289, page 79, paragraph 272,

7 Report of the Interdepartmental Committee on the Business
of Criminal Courts, (1961), Cmd. 1289, page 81, paragraph 280.



101

a penalty which will at any rate not have an anti-deterrent
effect. "In general, the courts proceed on the assumption
that this will be achieved by ﬁxing a sentence proportio-
nate to the offer.der's culpability, but "occasionally the need
to deter others is regarded as so pressing that it becomes
the dominant consideration and the court passes a sentence
which is specially designed to be exemplary".

Where a court imposes a sentence to protect the society
from an individual oifender, it is still concerned with future
events, but in a somewhat different Way. "It is not so
much seeking to control future events in order to prevent
them from taking another course. Its decision involves
not a prognosis of the effect of the sentence but a prognosis
of the effect of not giving the sentence'.".

Lastly, in the case of capital punishment unlike in the
case of other punishment, there is the object of eliminating
the offender. This appears to be a special form of parti-
cular prevention, the offender being totally and perma-
nently eliminated.

295. We feel that the deterrent object of capital punish- D":'°"S'-m V

ment is the most important object. Indeed, it would seem goi.:°a:.,,1_'""
to constitute its strongest justiﬁcation. Even if all the
other objects were to be kept aside, the deterrent object
would, by itself, furnish a rational basis for its retention.
We are aware that there is nothing new in this approach;
those who have studied the subject are fully conscious of
the controversy that has centered round the deterrent
object of the capital punishment, the amount of research
devoted to it, (particularly in the shape of statistics) and
the volume of literature on this aspect.

296. We would point out, that the chief object not only
of capital punishment, but of all punishments, is deterrent,
or what has been called "general prevention". In the
language of Bentham?, "If we could consider an offence
which has been committed as an isolated fact, the like of
which would never recur, punishment would be useless---
But when we consider that an unpunished crime leaves the
path open not only to the same gdelinquent, but also to those
who may have the same motives and opportunities for
entering upon it, We perceive that the. punishment inflicted
on the individual becomes a source of security to all.
Punishment is elevated to the ﬁrst rank of beneﬁts, when
it is regarded not as an act of wrath or vengeance against
a guilty or unfortunate individual who has given way to
mischievous inclinations, but as an indispensable sacriﬁce

1Report of [the Interdepartmental Committee on the Business
of the Criminal Courts, (1961) Cmd. 1289, page 82, paragraph 284.

2 Bentham's' Rationale of Punishment, 2o, cited in Halsbury, 3rd
Edn., Vol. IO, page 487, paragraph 889 and foot-note (k).



C r Lie 1
Mut ders.

102

to the common safety."
tion to this rule.

Capital Punishment is no excep-

297. This is not, however, to rule out the r.etributive
object totally. Misunderstanding is caused by certain mis-
conceptions about the tetributive object. If it is taken to
mean the primitive concept of "eye for an eye", that is,
retribution in the literal sense, it is open to criticism. But,
in a reﬁned sense, as expressing public indignation at a
shocking crime, it exists in reality, though not as the chief
end of capital punishment_ It can better be described as
"reprobation" or "the emphatic denunciation by the com-
munity of a crimeﬁ". An abhorrent crime deserves severe
and abhorrent punishment.

298. The retributive object is reﬂected in practice in a
different aspect----what may be called the "negative" one.
Where the circumstances of a crime are such that they
excite not a sense of shock, but a feeling of pity, the "re-
probation" if oif-set by» the "extenuating" circumstances.
The extenuating circumstances are regarded as justifying
the lesser punishment. This demonstrates negatively the
retributive object. Here, the negative aspect helps in the
individualisation of punishment. A subdued sympathy
takes the place of reprobation; public feeling sides itself
in favour of the offender; the law bows down to this feeling
"whether through. the court or through the exercise of the
prerogative of mercy, or by express provision in some
cases.2". These observations, trite though they may
seem, appear to be necessary, since the question of object
of punishment is a fundamental one, and no misunder-
standing in that ﬁeld should be allowed to obscure the dis-
cussion3. ' '

299. What we have said above can be substantiated by
pointing out, that even in many countries' where death
sentence for murder has been abolished, it has been re-
tained for treason. One reason for this seems to be the
feeling that treason is such a,serious crime that it must
receive adequate condemnation.

300. Even after all the arguments advanced to support
the abolition of capital pur.'ishment are taken into account,
there does remain a residuum of cases where it is absolute-
ly impossible to enlist any sympathy on the side of the
criminal, or to postulate any mental abnormality on_ his
part, or to assert that the deterrent effect is counter-balanc-
ed by any external factors, i.e., factors other than the will
and determination of the criminal. As Stephen said, there

I cf. Lord Denning, cited in R.C. Report, page 18, paragraph 53.
2For example, section 300, Exception 5, Indian Penal Code.
3Discussion relating to arguments for abolition may also be seen.
4 c.g. England, and New Zealand.



133

are, in the world, "a consicierabie number of extremely
wicked people, ciispesed, when oppartunity offers, to get
what they want by {us-ca or fraud, with eompiete indiffeb
ence to the interests of others, and in ways which are
inconsistent with the existence of civilized society. Such
persons, I think, ought in extreme cases ta be destreyecw'.

"Tc: allow such persens to live would be like leaving
waives alive in a civilized country'*'.".

301. As was observed in one American cases: To permit
a man of dangerous criminal tendencies to be in a position
where he can give inﬁulgence to such propensities would
be 3 £0213 which nu community shouki suffer itself to
commit, any more than it should ailawi G. wild cmimal to
range at wiii in the city streets. If, therefore, there is
danger that a defendant may again commit crime, society
should restrain his liberty until such danger be past, and,
in cases similar to the present, if reasonably necessary for
that purpose, to terminate his life. Admittedly, restraint
by impriszmmeat can never be as wholly effectual as exe-
cuﬁon, and there are, from time to time, cases where
imprisonment may net be suﬁiciem for she pmtecticm sf
society. It is an this gmund that it is pertinent. to take
testimony in regard 'co the history of a defendant and at
the circumstances attending his cammissioz; c-f crime. If
his recard skews that he is of a dangerous type, or that
he habitually carnmits grave crimes, or that he has a homi~
cidai tendency, or that he is hopelessly depraved. or that
he has a savage nature, or that he has commiizted murder
under circumstances of such atrocity and inhuman bruta-
iity as ts make his continued existence one of likely danger
to society, than in my opinion, the sentence of death is both
justifiable and advisable. The community may not be
safe with such a man in existence even theugh he be serv~
ing a term oi life imprisomnent; he may again commit
murder within the prisoa walls, or may escape and again
make innocent victims, his prey, or may even, by cunning
simulation of repentance, obtain a parden from govern-
mental authorities.

302. In such cases there is no chance of reformation. no
scope for expiation, and every reason for employing the
punishment provided by law as a terror to others similarly
inclined. It is {or Fne general good ithatthe criminals of
this type shouid not remain in society.

IS!€phef1, History of Criminal Law of England, (£3533. Vei. 2
page 91.

zstephcn, Hisvzw of Criminal Law or England, ([333), V0], 2,
page 92.

' 30onunamwea£ti: v. Ritter, Court of eye: and Term' Phiiadl '
{zggc}, per Stem 3. {ht-:1' Chief Justin: of the Pennsy1vani:ng;9tune 5:533
3'? aifiaiggn 34 Kﬁdish: Criminal Law and its 'Pmoesscs (1962), page
57 - » T

9-«£22 MofLaw.



104

TOPIC N o. 24

Deterrent eﬁect----Deta2'led discussion

I. Deterrent Eifect--experience of countries where
capital punishment abolished, or abolished and

restored.
Experience 303. It would be useful to discuss, with reference to the
°f°'hef deterrent effect of capital punishment, the experience of

$,",§§;'g',";*h,S other countries where it has been abolished, or abolished

been abolish- but restored later'.
ed, or abolish

23533;'; 304. It must be noted at the outset. that the deﬁnition
Prelim]-nary of the crime of murder differs in various countries and the

obse,-va;i(,ns_ ﬁgures of the various countries cannot, therefore, be taken
as an absolutely satisfactory basis for a comparative study,
because the like is not' contrasted with the like and there
are slight differences and variations in the objects of com-
parison. Further, differences ofcharacter, behaviour and
outlook and_ 'difference in the method. of compiling
statistics' naturally create complications". However. the
available material has to be studied; and an analysis of the
ﬁgures of selected countries is, therefore, attempted.
Even for these selected countries, only certain sample
ﬁgures have been takerf, for brevity.

Abolition 305. Besides the countries in which the capital punish-

W"h0u'_ ment has been abolished but restored later, there are coun-

'°'°"°m"°" tries where it has been abolishedor kept in abeyance, but
not restored. An analysis of the ﬁgures for such countries
is given separately".

11. Reasons for restoration in foreign countries.

306. In the various countries in which capital punish-

fgtriggsgg' ment has been restored, the reasons which led to restora-
foreign tion may be analysed as follows':-
°°"m"°5- New Zealand.--The main reasons were5 (apart

from political factors), the attitude of murderers tow-
ards the penalty, (during the abolition period, one
murderer said "you do not get hanged for murder now-
a-days"), the evidence given before the Select Com-
mittee by the police about the deterrent effect, increase
in the number of sexual murders and murders asso-
«ciated with robbery, and newspaper reports about
increase in the number of munders after abolition.

I The statistical data have been compiled from the Royal Commission
Report, Appendix No. 6, pages 340-372, after a study of the tables and
other information given therein.

2 cf R.C. Report, page 340, paragraph 24.

3 See Appendix containing Table analysing effect of n0n--rest0raI:i0n
(Abolition countries).

4 The analysis has been made on a study of material given in the RLC,
Report, pages 372-375. \ A

500'. R.C. Report, page 337, paragraph 16, and page 343, paragraph
34-



105

(In New Zealand, death penalty has now been abolish-
ed, except for treason').

In New Zealand, capital punishment has had a chequer-
ed history. It is said that, to some extent, it has varied
with the party in power. The following quotation from
the speech of Mr. Hanan, Minister of Justice, on the Crimes
Bill'-' will show the position:---

"Capital punishment for murder has had a chequer-
ed history in New Zealand. It has been enforced and
suspended and abolished, and re-instated and suspend-
ed again----a weather cock varying with every change
of Government since 1935. The Bill makes an attempt
to resolve the issue by prescribing the death penalty
for certain types of murder--which are referred to as
an aggravated mu.rder--and life imprisonment for
murder in the other categories". , 1,

(The scheme of division of murders into categories, pro-
posed in the Bill was not ﬁnally adopted, and capital
punishment for murder abolishedoin New Zealand in 1961).

Washington (U.S.A.).--"The Legislature evidently
regarded capital punishment as a deterrent force, for
it was restored after a trial of six years of life impri-
sonment as the maximum penalty." The restoration
was also the result of a series of murders; in one parti-
cular case, a murderer had boasted that the State
could do nothing to him but board him for the rest of
'his life".

Oregon (U..S.A.).--Restoration was initiated by the
Governor by calling a special session of the Legislature,
and in the address he said that a wave of crime had
swept over the country since 1919, and because of a
series of homicide offences, public sentiment demanded
greater protection. After a plebiscite, capital punish-
ment was restored'.

Tennessee (U.S.A.).--After the repeal of the
Capital Punishment Act in 1915, there was a reign of
crimes of the most heinous nature, which brought
about a reversal of public sentiment5.

Missouri (U.S.A.).--In the period immediately fol-
lowing abolition, capital crimes occurred with
frequency so that the public sentiment of the State
demanded restoration of the death penalty".

 Crimes 1961, (New Eealand), (Sections 74 and 172).

3 Parliamentary Debates, New Zealand, House of Representatives, (Vol-

328). dated 13th September, r961, page 2206.
3R.C. Report, page 374, paragraph 99.
4 RC. Report, page 374, paragraph I00.
5 R.C. Report, page 374, paragraph IOI.
6 R.(.'. Report, page.374, paragraph 102.



106.

Kansas (U.S.A.).--Prior to restoration, numerous
deliberate murders were committed in the State by
persons who had previously committed murders in
the surrounding States where death penalty was in
force.

South Dakota (U.S.A,).--Two Illinois convicts,
having ﬁnished serving their terms, tramped across
the State and killed a couple of ﬁlling -station atten-
dants, after committing robbery. This led to re-intro-
duction of the death penalty?

Switzerland.---Some particularly heinous murders
took place shortly after abolition, leading to restora-
tion in some Cantonss. Ultimately, it was abolished
throughout all Cantons'.

307. The following analysis of the developments in
Switzerland might be interesting5-3.

Principle of abolition adopted in the Federal Constitu-
tion of 1874.

Series of murders took place.

Referendum held, giving small majority for restoration.
Restoration took place' thereafter in certain Cantons, but
the crime wave subsided. Between 1868 and 1892, there
were no execution. Between 1892 and 1937, there were a
few executions.

Both Houses of the Federal Parliament secured majo-
rity in favour of abolition. '

Death penalty abolished with effect from 1942 by the
Swiss Penal Code of 1937, except in time of war, with the
alternative of perpetual solitary conﬁnement.

Owing to increase in crimes, question of restoration
was discussed, but the proposal rejected in spite of increase
in the number of murders since 1948.

308. Equador, which in 1878 was the ﬁrst to dispense
with capital punishment restored it in 1883. but again
in 1895. it abolished it'. '

I R.C. Report, page 375, paragraph 103,
2 R.C. Report, page 375, paragraph 104.
3 RC. Report, page 375, paragraph 105.
4 R.C. Report, page 350.

5Based on material in Joyce, Right to Life (I962), pages 80 and sr_
6 See also R.C. Report, page 350, paragmph 59_

7 Scott, History of Capital Punishment (1950), page 75.

1874.

1876-1878. .

1879.

1928-3 1.

1937

X952.



107

1111. Comparison of ﬁgures of abolition and non-abolition
States for the same period
309. It may be of interest to study -the rise in homicide Eggglpg}
rate in States with capital punishment, and to contrast or ﬁgures of
compare it with States without capital punishment. As a abolition

sample of such study, We may take the ﬁgures for Rhode '*"gl.?].%'l';'

Island (capital punishment abolished in 1882) and Massa- gkfatles for

chussetts (capital punishment in force). the same
period.

The average annual number of deaths due to homicide
per million of the population for the two States is as fol-
lows:'----

Country or
State ~ ~ -- ~ -- -- -- -- -- - ~ -- ~ -- -- ~ -- ~ -- -- -- ~ -- --

191 0-19 1920-29 1930-39 1940-49

Massachusetts (capi-
tal punishment
retained) . . 29 23-4 18-6 13'?

Rhode Island (no
capital punish- ,
rnent) 4 , . 31 23-3 :7-4 137

It this could be represented in the form df a graph, it
would be'evident, that in both the States, there has been
a steady decrease in the homicide rate from the ﬁrst time
lag ending 1919 to the last time lag ending 1948. This
shows, that besides punishment, there are also other fac-
tors which determine the incidence of homicide.

310. It has been stated, that statistics studied by various
persons, e.g., by Warden Lawes, by Karl Schuessler for
the period 1931-1946 (Comparative study of Abolition and
Retention States) and by Barnes and Teeters, show that
the rate of homicide is not affected by the presence or
absence of death penalty'.

The pioneering work in statistics on the subject, as is
well known, is by Professor Thoruston Sellin. His views
are quoted in the Royal Commission Report3 and in the
Canadian Report*.

I For ﬁgures, see R.C._Report, page 371; for diagram, see R.C. Report
mg': 377; for dates of abolition, see R.C. Report, page 345.

2 Younger "Capital Punishment A Sharp Medicine Reconsidered
American Bar Association Journal, February, 1956, cited in McClellan,
Capital Punishment (1961), page 18.

3R.C. Report, page 24, paragraph 67 and in Appendix (from page
328 onward).

4 Canadian Report, pages r2-13, paragraphs 43-49.



Speciﬁc
illus tr a-
tions of
deterrent
eﬂc/st.

Special
position
i 11 India.

' 108
VI. Speciﬁc illustrations of deterrent eﬁect

311. It may be of interest to note some speciﬁc illustra-
tions of the deterrent effect of capital punishment. Thus,
Sir Harold Scott, Commissioner of Police, London, n'arrat---
ed the following facts' of one case:--

A person was arrested for house and shop-breaking
behind a wall on the top floor of some premises,' he had
kept a "jemmy" for use against persons who may come to
arrest him, but left it on a box at the top of the stairs.
When asked why he had left it there, he said that he de-»
cided not to use it, as he may have a "swing"

312. Compare also the case from New Zealand 2-3, in
which, after committing the murder on one occasion, the
offender said, "you do not get hanged for murder now-a-
days; even if you commit murder now-a-days you only get
8 years for it. That is the good Government we have in".
A case from U.S.A. may be cited. In South Dakota, two
persons crossed the border from Illinois to that State, and
committed "robbery murders" of the attendants of a
ﬁlling-station, at a time when capital punishment had.
been abolished in South Dakota'.

313. Simﬂarly, at the time when capital punishment was
not in force in Kansas, persons who had previously com-
mitted murders in surrounding States (where a capital
punishment was in force) started deliberately committing
murders in Kansas".

V. Special position in India.

314. (a) In arriving at a decision about the necessity
of capital punishment, it is desirable to make oneself fami-
liar with the homicide rate in other countries as compared
with the murder rate in India. (By "homicide" or "murder"
rate here is meant the homicide or murder rate per million
of the population). Murder rate in India has fluctuated in
the nine years ending with 1962 between 25 and 30-6. It
has never been less than 25 in this period".

1 R.C. Report, page 335, paragraph 15.

2R.C. Report, page 337, paragraph 1'6, quoting the speech
of the Minister of Justice of New Zealand in the House of Represen-
tatives.

3New Zealand has, however, now abolished capital punishment
for murder. See (New Zealand) Crimes Act, I961, sections 74 and
:72.

4 See R.C. Report, page 375, paragraph 104.
5 See R.C. Report, page 375, paragraph 103.
6 Figures showing murder rate in India are given separately.



109

(b) It must be stated, that the homicide rate per million

of the population in several countries or States is less than
25.

The ﬁgures for' 1940 to 1948 (or 1940 to 1949) for some
countries are as fo1lows1:--

Murders per million
of the population
England and Wales" (Abolished I965) . 4-o

Scotland . 2-7

New Zealand (Abolished 1941, restored
1950, again abolished except for trea-

son, 1961) . . 7-2
New South Wales (Retains) . . . 10-?)
Queensland (Abolished 1922) . . . I7-0
South Australia (Retains) . . . . 6-2
Sweden (Abolished 1910) . . . 5-4
Maine (U.S.A.) -(Abolished 1876, res-

tored 1884) . . . . . I4-r
Massachussetts (U.S.A.) (Retains) . . I3-7
Nebraska (U.S.A.) (Retains) . . . 18-4
Rhode Island (U.S..A) (Abolished 1852) . :37
Vermont (U.S.A.) (Retains)3 . . . 12-6

(c) It may also be stated, that in many countries, the
rate of homicide per million (for the period 1940 to 1948*)
was higher than 25. Thus, for South Africa, it was 108-9;
for Georgia (U.S.A.), it was 167-3; for Kansas (U.S.A.),
29-8; for Michigan (U.S.A.), it was 33-4; for Missouri
(U.S.A.) it was 56-3; and for New York (U.S.A.), it was
28-8.

315. Out of the States or countries mentioned above, 5°".'h

with ﬁgures higher than India, Kansas (U.S.A.) and Mis- gfegfiga
souri (U.S.A.) had abolished capital punishment at one Kanm,'
__ Michigan,

M. .
1 Taken from the R.C. Report, page 371, Table 46, giving ageneral anifsfqufév

comparison of prevalence of "Murders" in the British sense of the York,
term. The ﬁgures given there are per million of the population; see ibid
page 370, paragraph 89.

2 By the Murder (Abolition of Death Penalty) Act, 1965, death penalty
has been temporarily suspended.

3It appears, hcvrevcr, that recently scme States including Vermon
have abolished or limited the death penalty. See Clarence H. Patrick,
"The Status of Capital Punishment, A _W_7orld Perspective", (1955
December) 56 Journal of Criminal Law, Criminology and Police Science
397, 4x1, foot-note 12.

4The ﬁgures are per million of the population. See R.C. Report, page
370, paragraph 89.



Punish-
ment not
the only
deterrent.

110

time, but restored it later, while in Michigan (U.S.A.), it
was abolished in 1847, and it is understod to be not restort-
ed even now. Others, namely, South Africa, Georgia
(U.S.A.) and New York (U.S.A.) have not abolished the

death penalty'.
316. There is another aspect of the matter, so far as

India is concerned. The murder rate per million of the
population in India seems to have been ﬂunctuating.

Thus, the ﬁgures for the 10 years ending 1962 are':-

27- I (per million)

1953

1954 25'9

1955 27'7

1956 27'8

1957 28-9 '
1958 . . . . . ' . . 29-6

1959 , . . . . . z9~8

1960 . . . . . . . 25

1961 . . . . . . . 26

r962 . . . . . . . 26

These ﬁgures show--
(a) continuous increase during: F954-1959,

(b) slight decrease in 1960, but
(c) increase again in 1961, which was maintained in
1962.

It may also be noted, that in some cities of India, the
increase has been noticeable'.

VI. Punishment not the only deterrent.

317. It is stated that punishment is not the only deter-
rent. :It does not play a major part for many persons, so
far as grave offences are concerned. It has been said', that
if every, form of punishment were abolished for murder,
rape, and arson, only a very small number of persons
would thereby become more disposed to commit these

I Figures for 1962 for abolitionist and retentionist countries are

given separately.

2Figures for 1953 to 1961 are based on the ﬁgures supplied by
the Home Ministry, and have also been checked with "Crime in
India". Figures for 1962 are based on "Crime in India, 1962", page
25.
3Table showing noticeable increase in certain cities is given sepa-

rately.
4Glanville Williams, The Reform of the Law (1950, page I96.



111

crimes, but on the other hand, if motoring offences could
be committed with impunity, the relevant laws would soon
become a dead letter. In other words, the "deterrent in-

ﬂuence of punishment is in inverse ratio to the gravity of
the offence".

There is some force in this argument. At the same
time, it must be noted, that the sanction ﬂowing from the
pressure of public opinion and the general sense of the
.community, though it may operate on many persons, may
not operate on hardened criminals or a person with strong
passions. It is for such cases that the deterrent effect of
punishment is needed badly.

VII. Deterrent use unjustiﬁed---Wrong to punish A to

deter B.
318. It is often argued that it is wrong to punish A to Detcrfent
.deter B so that C may be deterred from killing D. "Se "°'

justiﬁcd
319. We think that a sufficient answer to this argument t_¢;q;1ri(r)iI1'1sgh

is provided by the following observations of Bentham':-- ;";rtC1'3d'=-

"The principal end of punishment is to prevent like
offences. The past offence is only as one point, the
future is inﬁnite. The past offence concerns only one
individual; similar offences may aﬁect every one. . 
Some actions are hurtful; what ought to be done to
prevent them? . . . . .. prohibit such actions; punish
them. This method of combating offences is the most
simple, and the ﬁrst adopted... ..The remedy consists
in the application of punishment and punishment can
only be inflicted after the crime is committed".

320. The argument that it is wrong to punish A to
deter B has been put more forcefully in this form. So far
as punishment is a deterrent only, it amounts to treating
the criminal as a means to an end, and though the law
might aim at preventing him from the crime, the actual
infliction of the punishment is mainly concerned, with
other people. To that extent (it is argued), it is non-moral,
and if there were no other elements in any instance of
punishment, it would be immoral, for it is always immoral
to treat a person only as a means to some and other than
his own well-being. Now, in reply to this argument, it
should be pointed out, that a criminal is not punished
merely as a means. The social good, which includes his
own individual good, is taken into account while awarding
punishment. The decision whether the criminal should
receive any punishment, and if so, the highest punishment,
is an empirical one, based on the facts. In coming to that
decision, the social good is considered, but the individual

A_"1 Bcntham----Principles of Penal Law, Vol. I, pagcs 367 and 533; see
Radzinowicz, History of English Ctumnal Law (1956), Vol. 3, page
433-



Arguments
for and
against

d eterrent
effect.

Arguments
for deterrent
effect.

Arguments
against
deterrent
effect.

112

crim_inal's good is also considered, ar.d.his past history,
possibility of reform etc. are weighed against the other
circumstances.

321. Moreover, this argument, in a way, raises a funda-
mental question which applies not only to the sentence of
death but to all sentences. For even in the case of sent-
ences other than death, the punishment is intended to deter
other persons also. When a man is imprisoned, for ex-
ample, for theft, the imprisonment is intended not only to
prevent him from committing similar crimes in future, but
also as an example to others.

322. So long as the deterrence of similar offences is the
foundation upon which the structure of criminal law is
based, it is not possible to accept this fundamental objec-
tion. One further answer to this argument would be, that
it is an inevitable sacriﬁce which a proved offender has to
make for the well-being of society, and that there is no
other way of avoiding serious danger to the lives of
numerous citizens.

VIII. Other arguments regarding deterrent effect.

323. There are certain other arguments in connection
with the deterrent effect of capital punishment, which may
also be added here, to make the study comprehensive:--

(i) Deterrent effect cannot be seer; directly, but
it acts on the community through its moral conscious-
ness.

(ii) It does not operate on impulsive murderers or
abnormal persons, but it does operate on normal per-
sons.

(iii) Because of its uniqueness (as compared with
imprisonment), it acts on the professional criminal also.

(a) Human nature is complex, and acts not by fear
alone but by love, loyalty, greed, lust and many other
factors.

(b) Individuals do not think of the death penalty
before they act.

(c) Detection of murder is uncertain, and reduces
the deterrent effect.

(d) Long delays in trial reduce the deterrent eifect.

(e) Death penalty is permissive, and very few
murderers are actually executed. This reduces the
deterrent effect'.

I See, for example, the ﬁgures regarding U.P. quoted in the speech
of88Shri M. L. Agarwal, Lok Sabha Debates, 24-8-1956, cols. 4345-
43 -



:" 11.3
(f) Executions are closed to the pubiic. Hence
the public Lie not feel the impact of the penalty.

IX. Some important points.

324. Much of the controversy that exists as to the deter-
rent effect of capnal pumshment would disappear

tain goints, which should in fairness be conceded by both
the rxval cam

they are, they are often lost sig
them, without much elaboration:--

tfi) Human behaviour is conditioned by many far»
tors, and not by law alone.

(ii) Punishment is
may be other fact
behaviour of a p
der.

only one such factor. There
ors, which operate to inﬂuence the
articuiar offender or potential offen-

(iii) Those factors may be classiﬁed as factors
contradictory to deterrent effect, (e.g. oﬁenders' own
upbringing, likelihood of gain, existence of passion, or
iust), factors co-mplemenmry to it, (9.9). social pres-
sure), and 'neutral factors.

(iv} How far and to what extent punishment
operates in a particular case on a particular person,
will thus depend to some extent also on what those
other factors are; how many of them are contradic-
tory, complementary or neutral to the deterrent effect;
and what is their respective intensity.

(V) Therefore, the deterrent effect of punishment
may not be uniform in all cases and on all persons.

(vi) But punishment provides the most com-rete
and tangible deterrent.

X. The basic argument.

325. It would also be worthwhile to draw attention to Thé basic
a '£1

asic feature of human behaviour--love of life. To the "3"m""*
overwhelming majority of human beings, nothing is more

dear than life. We cannot help quoting the observations

of Sir James Fitzjamées St-ephenz'

"No other punishmenf deters man so effectually
from committing crimes as the punishment of death.
This is one of those propositions vcfhich? it is difficult
to prove. simply because they are in themselves zoore
obvious than any proof can make them. It is possxble
to display ingenuity in arguing against it, but that is
all. The whole experience of mankind is in the other
direction' Thle threat of instant cieath is the one to

I '3te:ohe:;~---"'C1or'raI P1mjs'rm;».°:-1t". in Fraser': Magazine, Vol. LX'IX,
}une, 1864, page 753, cited in R.C. Report, page :9, paragraph 57.



Discussioll
in other
Reports.

114

which resort has always been made when there was
an absolute necessity tor producing some result. . . .No
01198095 to certain inevitable death except by com-
pulsion. Put the matter the other way. Was there
Wei' Yet a criminal if/ho, when sentenced to death
and brought out to die, would refuse the offer of a
commutation of his sentence for the severest second-
ary punishment? Surely not. Why is this'? It can
only 'be because 'All that a man has will he give for
his life'. In any secondary Punishment, however,
terrible, there is hope; but death is death; its terrors
cannot be described more forcibly)'.

$26. This basic argument about the deterrent value of
capital punishment has been well put in the minority re-
port of the Massachusetts Commission':---

"Does the death penalty for first-degree murder
really serve as a deterrent to potential murderers? All
human beings fear the loss' of their lives, even those
who may be suffering from major mental disturb-
ances. The instinct of set)'-preservation is so funda-
mental that the threat of death, apprehended as such,
must have a powerful determining influence on the
voluntary direction of human activity. No one will
knowingly drink poison or cast himself over a preci-
pice unless he is so deranged that he cannot evaluate
the consequences of what he is doing, or unless he
studiously chooses the alternative of death to conti-
nued existence in what he judges to be an intolerable
situation. The claim that the death penalty initself,
decreed for the committing of a major crime, _will not
exercise a deterring inﬂuence on the great majority of
potential criminals, contradicts one of th'e fundamen-

tal facts of human psychology."

XI. Discussion in other Reports.

327. Valuable discussion about the deterrent effect of
capital punishment is contained in the Report of the Royal
Commission. It will be convenient to set out briefly the
precise conclusions of that Commission on this point.

These are as fol1ows:------

First, prima facie, the-death penalty is likely to have a
stronger effect as a deterrent to normal human beings
than any other form of punishment? Secondly, there is

.._.4v.j---_""""' '-_,~ . . . I' k (-
I Mmmm. Report _of the Special Commission for the piirposeo
investigating and studylng the abolition of the death perialty in capital
- ommonwealth of Massachusetts, House Report lfxo. 2575_ (Bos
3:38 hated 30th December, 1958, cited in McClellan, Capital Punishment
(1961) pages 72, 75 and 76-
2. R.(.'.. Report. page 24, paragraph 68. and details in P3889 194°» Pm'

graphs 57 and S3-

 



115

some evidence that this is so'. Thirdly, there is no con-
vincing statistical evidence that the penalty of death has
a stronger effect as a deterrent than any other form' of
punishment? Fourthly, this effect (that is to say, strong-
er 'effect as a deterrent) does not operate universally or
uniformly; "there are many offenders on whom it is 1irnit-
ed and may often be negligible.3". Fifthly, the deterrent
force of capital punishment operates not only by affecting
the Conscious thought of individuals tempted to commit
murder, but also by building up in the community, over a

long period of time, a deep feeling of peculiar abhorrence
for the crime of murder'.

Sixthly, it is impossible to arrive conﬁdently at a firm
conclusion about the deterrent effect of the death penalty,
or indeed of any form of punishment'''. Seventhly, it is
important to View the question in a just perspective, and
not to base a penal policy in relation to murder on exa-
ggerated estimates of the uniquely deterrent force of the
death penalty'.

It would, thus, appear that the Royal Commission did
not totally rule out the deterrent effect; but the Commis-
sion emphasised its limitations. and also the desirability
of not overrating its importance'.

Appendix to its Report3 the Commission discussed
ﬁgures and other aspects of the deterrent effect of the
capital punishment.

328. It may be noted, that even in the Canadian Re-
port", the view taken is in favour of the deterrent effect.
After a careful consideration of the statistics presented by
experts, and after noting the evidence received from Law
Enforcement Officers to the effect that capital punishment
was an important and necessary deterrent to murder, the
conclusion reached in that Report was this: First.''', that
this opinion of the ofﬁcers was not displaced by other evi-
dence based upon statistical comparison. and that capital

punishment did exercise a deterrent effect, which would"

not result from imprisonment or other forms of punish-
ment; secondly'''. the fact that a considerable proportion

I R.C. Report, page 24, paragraph 6% and details in paragraphs 60 and 61.
2R.C. Report, page 24, paragraph 68 and def-"HS In P3T9§|'3Ph
62-65.

3 RC Reoo*t, page 24, paragraph 6% and base 20. paragraph 60-
4R.C. Report, page 20, paragraph 59.

5 R.C. Report, page 24, paragraph 68.

6 R. C. Report, page 24, paragraph 68.

7R.C. Report, page 20, paragraph 59; andpase zmparagraah 67--

s R.C. Report, pages 323 -- 380. (Appendix 6)-

9 Canadian Report, pages 13-14. paragraphs 48-53-
10 Canadian R690", 1338'! I4, Pafisﬁiph 52-
11 Canadian Report, page I4,paragraph 53-

\



_penalty with murder; fourthlyz,

116

of murders was committed un
or anger seemed to demonstrat

ed with the excellent standards of law enforcement pre-
vailing in Canada, had succeeded in deterring deliberate
pre-meditated murders; thirdlyl, the deterrent eﬁect
was also indicated by the widespread association of death

_ it Was necessary to
retain the stern penalty of death as a continuing restraint
against the use of violence by professional criminals;
ﬁﬁhlyﬁ Public abh0I'I'€nCe of murder reﬂected a tradi-
tional attitude built up by the reservation of capital
punishment for this particular crime, and the abolition of
a penalty traditionally accepted as a just and effective
deterrent could only be recommended if it was established
clearly that the View of the ordinary citizens about its
efficacy was demonstrably wrong; sixthly} capital puni-
shment did protect the police to a greater extent than im-
prisonment alone would do, by deterring criminals from

using violence to facilitate the commission of crimes,
escape, etc.

der compulsion of passion
e that death penalty, coupl-

329. We may state here brieﬂy the conclusions reached
by the majority of the members of the Ceylon Commis-
sion as to deterrent effect. Th_at Commission, after a study
of the statistics of other countries and of Ceylon, came to
the conclusion that the statistics tended to prove the case
against the general deterrent effect of the death penalty'.
It agreed with the conclusion of the Royla Commission",
that prima facie the penalty of death was likely to have a
strong effect as a deterrent to normal human beings than
any other form of punishment, and that there was some
evidence, though there was no convincing statistical evi-
dence, that this Was, in fact, so, and that this effect does
not operate universally or uniformly. But it noted'', that tn
Ceylon, this statistical evidence went further than merely
leaving open thke question of deterrence or no deterrence.
On the basis of statistics, it came to the conclusion that in
Ceylon, re-introduction of the penalty of death could not
be justiﬁed on the argument that it was a more. effective
deterrent to potential killers than protracted imprison-
ment.

I Canadian Report, page 14, paragraph 53-
2 Canadian Report, page 14, paragraph 54-

3 Canadian RBPOU» Page 15, paragraph 55-
4 Canadian Report, page 15, paragraph 53-

5 Ceylon Report, page 45, P3f3gT3Ph 15-

6 See Ceylon Report, page 44, paragraph I2~
7 Ceylon Report, page 46, Paragraph 17-



 . 117

339. The Ceylon Commission further added', that the
experience or' many countries, which had suspended or
abohshed capital punishment, supplied cogent evidence
against the existence of the "hidden protection" believed
50 be aﬁ017ded by the sentence of death. if the "hidden
protection" existed, then, it observed, in some of the
countries, which had abolished or suspended capital puni-
shment, evidence would have appeared and would have
been reported, suggesting an increase in the murder rate
subsequent to suspension or abolition. While the Commis-
sion agreed that it may be true that the fear of death is
the most intense of all fears, it recorded the View, that
there was a great difference between the fear of death
when it was imminent, and the fear of it when it was re-
garded as only a remote possibility? In other words, from
the terror of death, experienced by the unprieved mur-
derer, during his last days on earth, one could not assume
that the same fear was operétive in his mind as a deter~
rent at the time of the crime. It stressed the fact that
developing psychological knowledge gave no support to
the assumption that a potential murderers calculated
(before killing), the ultimate consequences, and pointed
out that in an impulsive action, which, as in Ceylon, fre-
quently led to murder, it was unlikely that there was any
intellectual consideration at all prior to the killing, let
alone a reflection of possible and remote penalties'. Fur-
ther, in its opinion", difficulties of detection, apprehen-
sion and conviction and the discretionary exercise of re-
prieve, militated against death penalty being the unique
deterrent which it was claimed to be.

331. The Ceylon Commission expressed its deﬁnite
view", that certainty of detection and conviction was
more conducive to the reduction of crime than the actual
severity of punishment. its final conclusion'' was--~--"In
deciding on the wisdom of retention or abolition of capital
punishment, reliance cannot be placed on there being, any
greater deterrence to potentiai murderers by imposing
capital punishment on a few than by imprisoning all con-
victed murderersﬁw.

X11. Abolition in Indian States.
332. Capital punishment was abolished in Travancore Abcmim

and in Cochin in November, 1944. It was re-introduced in in Indian

1951 in both the States when (after they became part of SW58-

: Ceylon Reporg, page 47, paragraph 20.
2Cc-yiori Roper", page 49, paragraph 23.

3 Ceylon Repow, page 49, paragraph 24.
4 C«?:~'!o11 Report. paes 49, para graph 29

5 Ceyion Report, page 50, paragraph 26.
6 Ceylon Report, page 51, paragraph 27.
7C:yi3a Repzrc, page 52, paragraph 28(a).

31:1 Ceylon, Qapitai lfunishmenr was re-introduced. by the S123'
pension of Capital Punishment (Repeal) Act, 1959 (25 of 1959).



Result of

113

the) Union of India) the _Indian Penal Code became appli-
c_a le to_thern. The statistics of_murder during the aboli-
tion period in those States are inconclusive on the ques«
tion of deterrence. Those statistics are given below'-2:-

Murders in Travancore and Cochin

( I942 . . . . 121

1943 A - . . . 112

1944 ~ . . . I23

1945 ~ . . . 133

' I946 . . . . 148
1947 - . . . I68

1948 - ; . . 203
Retention ? I949 _ . _ _ 14°
1950 . . . _. 164

1951 . . . . 188

1952 . . . . ios

1953 . . . . zoo

1954 . . . 171

1955 . . . . 129

K 1956 . . . . 114

X111. Result of U.N. Survey as to deterret effect.

333. A few years ago, the United Nations (Department

U.N. Survey of Economic and Social Aﬁairs) conducted a survey as to

as to
deterrent
eﬁec.t

capital punishment, and issued a speciﬁc questionnaire as
to its deterrent effect. The result of the survey on this
point was as fo11ows':-- .

"191. The purpose here was to gather, for pur-
poses of comparison, positive indications regarding
the death penalty. It is, however, very difficult" to

rFigures for 1945 to 1956 are taken from reply dated 1-7-1963
of the Secretary, Home Department, Government of Kerala to the
Law Commission's Questionnaire (S. No. 131 in the Law Commission
ﬁle).
2Figures for 1942 to 1944 are taken from Ceylon Report, page
61. ~

3United Nations--Capital Punishment, (1962), pages 53-54, para-
graph; 191-195. See also page 1.



119

obtain data of that type which are complete and,
above all, objective. There are numerous gaps in
this respect in the material, and many of the replies
are silent on the question. There is also a great diver-
sity from one country to another regarding the points
on which exact data were supplied.

"192. Subject to these remarks, the ﬁrst point to be
noted is that the information assembled conﬁrms the
now generally held opinion that the abolition or
(which is perhaps even more signiﬁcant) the suspen-
sion of the death penalty does not have the immediate
effect of appreciably increasing the incidence of
crime. This point is stressed by the abolitionist coun-
tries where abolition de jure was preceded by a period
of de facto suspension. Likewise, some countries
which have maintained the death penalty have ex-
perienced periods during which it was not applied, or
at least not carried out, and in these the fact that
there were no executions was well known to the
general public and therefore to possible offenders.
This was the case in France early in the twentieth
century under President Fallieres and in the United
Kingdom in the period preceding the Homicide Act,
1957. No noticeable increase in crime resulted in
either case.

"193. The replies received from many abolitionist
countries, in particular the Scandinavian countries,
Austria and certain Latin American countries, take
this consideration as the basis for the vilew that the
deterrent eﬁect of the death penalty is, to say the
least, not demonstrated. And even a number of coun-
tries which have maintained the death penalty query
its value as a deterrent in their official replies. This
is true of the replies of Spain, Greece, Turkey, and in
particular of the United Kingdom, and also (with
qualiﬁcations) Japan.

"194. Many other government replies, however,
state that no final opinion can be expressed as to whe-
ther the death penalty has a deterrent effect or not.-
This is the view of Austria and Yugoslavia.

"l95. In the United States, many studies have been
carried out on the deterrent effect of the death penalty
on the basis of crime statistics, but these studies are
largely the work of private specialists and there is no
government reply on this speciﬁc point.".

10-122 M of Law '



120

TOPIC NUMBER 25

Deterrent effect how far achieved----Replies to Question
2(b) summarised

 334. Regarding the deterrent effect of capital punish-
4(1)), merit, a speciﬁc question was put in our Questionnaire" as

follows: -

"In particular, do you think that the sentence of
death acts as a deterrent?"

Conﬂicting views have been expressed in the replies
received to this question. One view, which may be said
to represent the opinion of the largest single majority of
those who have replied to this question, is that capital
punishment? does act as a deterrent. At the other extreme
is the view that it has failed to act as a deterrent. Bet-
ween these two extremes we ﬁnd varying shades, such as,
that--- i

(i) Capital punishment may not necessarily act
as a deterrent, but in the present circumstances it is
likely to act as a deterrent';

(ii) it acts as a strong deterrent for normal
human beings';

(iii) in the case of hardened criminals it does act
as a deterrent;

(iv) it acts as a deterrent only in cases where
there are no extenuating factors or sentiments,

(V) though it may be debatable whether it neces-
sarily acts as a deterrent, yet in thle conditions which
prevail in the country, it tends generally speaking to
act as a deterrent";

(vi) it acts to a large extent as a deterrent; but
in some cases, particularly where passions are arous-
ed, it cannot in the circumstances possibly act as a
deterrent, especially having regard to the present
trends of thinking on the subject, which attributes an
act of homicide to a psychological or other imbalances
or to a criminal tendency which ﬂares up on passions
being roused up".

335. We may record here, that all the State Govem-
ments and Administrations that have sent replies, all
Inspectors-General of Police who have replied, and all

1 Question 2(b).

2 Question 2(a), latter haly dealt generally with achievement of the obiects
of capital punishment.

3 S. No. 139.

4 S. No. 150.

5 Bar Association of India, S.Nc. I83.

6 S. No. 161 (An eminent member of the Bar).



121

High Courts or Judges of the High Courts who have sent
replies to this Question, are of the opinion that the deter-
rent ob]ect is sufficiently achieved.

336. The reply of the Chief Justice of a High Court
states(', that statistics from other countries are not safe
criteria for the decision of the question whether the deter~
rent object is suiﬁciently achieved, because the incidence
of murders and other crimes would largely depend on the
cultural and educational level and social conditions pre~
vailing in a particular country. And, further, the statis-
tics do not also reveal the type and nature of the murders.
The reply also emphasises one aspect, namely, that since
jail reforms have been effected with the emphasis more
on the reformative than on the punitive object of the sen-
tence of imprisonment, and facilities like release on parole
and other amenities are provided to prisoners, a sentence
of imprisonment would, as a deterrent, have little eﬁect
on the minds of the criminal elements in society, for
whom the death sentence only would be the eﬁective
deterrent. On the minds of the average potential crimi-
nal, it is stated, the death sentence does act as a deterrent.

337. A High Court Judge", who has had experience as
a Sessions Judge in more than one District noted for its
crimes of murder, has stated, that this particular offence
against the person showed a marked fall, if it was known
to be dealt with ﬁrmly.

Another High Court Judge" has stated, that his ex-
perience as an Advocate and as a Judge makes him feel,
that it has a deterrent effect, and points out that every
Advocate pleads for the reduction of death sentence to
imprisonment for life, and every condemned prisoner
entertains hope till the end that the death sentence would
be altered into one of imprisonment by the appellate
court or the executive. "If it is properly carried out, it
will satisfy the sense of justice and provide social satis-
faction and a sense of protection.".

338. A number of Members of Parliament and State
Legislatures have statedpthat capital punishment does act
as a deterrent'.

339. The reply of a Member of a State Legislative
Council" states, that after all the right to life is the
greatest of all rights, and its deprivation is the greatest of
all deterrents, provided the punishment is certain and
reasonably prompt.

I S. No. 393 (Chief Justice of a High Court).
2 S. No. 262 (A High Court Judge).

3 S. No. 262 (A High Court Judge).

4 S. Nos. 221, 223 224, and 226.

5 S. No. 248.



122

340. In the reply of the Advocate General of a State', it
is emphasised that the fact that certain offences are made
punishable with death itself infuses a sense of security in
the citizens.

341. The reply of the Law Minister of a State", while
noting that the number of cases of murder have not come
down substantially, points out', that the very idea of a
possible sentence of death seems to continue to act as a
deterrent, and that the reason for the number of crimes
not coming down may be the materialistic trend and the
acute struggle for existence in modern society, rather
than the inefficiency of capital punishment.

342. The reply of one Member of State Legislature3
states, that it does act as a deterrent for the criminally
minded class.

343. According to the Judge of a City Civil Court in a
Presidency Town', the deterrent object is suﬂiciently
achieved in respect of the offences now punishable by
death under the Indian Penal Code.

344. According to the majority of the Presidency
Magistrates in a Presidency Town', the sentence of death
does act as a deterrent on deliberate murders. '

345. According to the Judicial section of the Indian
Oﬁicers' Association in a State", the object is to serve as.
an ultimate deterrent against heinous crimes involving
high degree of violence, and the existing law "substan-
tially, though not suﬂiciently", achieves this object.

The reply of a Judicial Officers' Association' states, that
retention of capital punishment is absolutely necessary as
a deterrent, so long as we have in our country divergent
castes, creeds and communities, who do not see eye to eye
in the social and national problems, "and whose education
and cultural standards are not above the average.

346. It is the view of a City Civil Court J udges who has
had experience as a Sessions Judge in several districts of
the bilingual State of Bombay, that the giving of capital
punishment in a very few selected cases of gruesome, pre-
meditated, cold-blooded and ghastly murders did act as a
deterrent.

I S. No. 229.
2 S. No. 253.
3 S. No. 242.
4 S. No. 484.
5 S. No. 549.
65. No. 562.
7 S. No. 373, in reply to Question 2(2).
8 S. No. 376.



123

347. The reply of a Sessions Judge in the State of
Madras" states, that death sentence acts as a deterrent,
especially when it is carried out within a reasonable time
of the occurrence.

348. A Sessions Judge in the State of Madhya Pradesh2
also states that his experience has shown that the award-
ing of death sentence has reduced the number of capital
offences.

349. A District and Sessions Judge in the State of Maha-
rashtras has stated, that in some measure the inﬂiction of
capital punishment does impress the social mind that a
life of crime is not Worth living. He, however, emphasis-
es that the deterrent effect does not last for a sufficiently
long period. Public memory, it is stated, is always short,
and an effective check on capital oﬁences is not to be sole-
ly found in the retention of death sentence.

350. In the reply of another District and Sessions Judge
in the State of Maharashtra', it has been pointed out,
that it is not merely the awarding of a death sentence or
its execution that acts as a deterrent, but that the very
'existence of capital punishment on the Statute Book, and
the chance of its being meted out, together with its actual
application once in a while, works out asva deterrent on
the criminal mind. The reply adds, that in certain crimi-
nal districts, where the number of murders is particularly
large, it has been noticed that the awarding of death sen-
tence does work as a curb on heinous crimies at least for
some time. The long period of association of the death sen-
tence with the particular crime of murder has worked out
a deterrent fear in respect of that particular crime, on the
social mind and the removal of the capital punishment
from the Statute Book is likely to unsettle that"'tradition-
ally settled fear", and so work out an unprecedented
spurt of serious crime'.

351. In the reply of another District and Sessions J udge',
it is stated, that the fact that serious crimes are on the in-
crease is no reason for concluding that the death sentence
or any other sentence should be abolished. Other measures
for the prevention of crimes are necessary, but there is no
justification for being more lenient than the law at pre-
sent is. '

I S. No. 419.

2S. No. 437. ,

3 S. No. 3353, reply to question 2(3) and )('b).
48. No. 334.

5 S. No. 3:6.



124
352. The reply of an Additional Sessions Judge' points

out, that fast changing values have led to the result, that
offenders take to killing on insigniﬁcant pretexts, and that
capital punishment is the only answer to such murders.

353. We may also refer here to the View expressed by

Sir Patrick Spens to the effect, that from his experience
in India he could say, that capital punishment did act as

a deterrent to murder.

_--

We quote his speech? in e.7ctenso----

"What I have to say to the House is partly, but not
very greatly, founded or; my experience as a judge
in India....I never, of course, there presided over a
murder trial of the ﬁrst instance, but I did preside
over the Supreme Court of Appeal, and during the
four years that I sat as Chief Justice we had a great
number of appeals from death sentences. Our duty
was, perhaps, not so difﬁcult as that of a judge of ﬁrst
instance, but equally serious when we had to consider
whether a death sentence was to be set aside or re-
duced--as we were entitled to reduce it, to 14 years'
rigorus imprisonment--<>r conﬁrmed. Ilt is partly from
that experience that I, myself, am convinced that the
death penalty is a deterrent in certain cases, and if the
death penalty is a deterrent in certain cases, we then
have to consider, and consider most carefully, what
would be the result of doing away with it.

"Of course, it is perfectly true that the bulk of the
murders with which I had to deal in the Appeal Court
were similar to the bulk of murders in this country;
that is to say, they were murders committed suddenly,
ﬁercely, unpremeditatedly, and so forth. But, in the
course of that experience, I came across another type
of murder, which I think does indicate, and indicate
reasonably clearly, that the death penalty is a deter-
rent. Those were cases arising out of crimes of violence
when the perpetrators may or may not, have intend-
ed that the victim was to die, but, as a result of the
violence used, the victim did in fact die and the crime,
of course, was that of murder.

"I propose to quote only two very diiferent types of
those cases. The ﬁrst was one of the earliest appeals
that I had to hear in August, 1943. It arose out of the
uprisings in Bihar the previous year. There, on 13th
August, 1942, a police station was captured
by rioters. It was burned and the police officers were
made prison;-ers by the rioters. The rioters then pro-
ceeded to strip the policemen and toast them in front
of the ﬁre. They proceeded to withdraw them as soon
as they thought the policemen looked as if they were

41 S. No. 367.
2 House of Commons Debates (1955-56), Vol. 548, Col. 2565-

2556.



125

about to collapse. There were two of these unfor-
tunate victims. One of them did collapse after three
or four toastings and the other did not collapse. As
soon as the ﬁrst one was seen to be about to die, or
to be liable to die, every person concerned set to
Work trying to revive the victims and to prevent them
from dying.

"The rioters had already committed a crime which
would obviously attract the longest term of rigorous
imprisonment----why should they have tried to revive
their unfortunate victims, but for the fact that they
knew perfectly well that if one of those victims died
they would be hanged, and hanged for a certainty?

"That is one instance. The other was a quite diff-
ernt one. A middle-aged lady, who strongly disliked
her husband, proceeded every evening to give him an
evening meal in which she put, not poison, but a very
obnoxious irritant to the bowels. This went on over a
period. after which it was quite obvious that the man
was about to die. Thereupon, she rushed him to
hospital and did everything in the world she could to
prevent him dying. Why? Again, because she knew
perfectly well that if he died she would incur liability
to the death penalty. ,

"Of course, those are very small indications that
the death penalty is a deterrent. ll entirely concur in
what has been said by my right hon. and gallant
Friend that no statistics can prove one way or the
other whether the death penalty is a deterrent, but
every one of us knows--knows inside himself--whether
violent death is a deterrent to us and whether it will
deter us from doing certain things. Masses of hon.
Members in this House have served in the Armed
Forces. I do not believe a single one if he says that
he has never been deterred by bullets or bombs. Of
course we have been deterred by bullets and bombs.
I am not ashamed to confess that I have been gravely
deterred, almost to the length of turning my back and
not going forward when I ought to be going forward--"

Mr. S. Silverman: "But the right hon. and learned
Member did not do so."

Sir, P. Spens: "I did not do so, but I did not go
forward in the way I would have done if there had not
been bullets ﬂying about. I will give another instance.
Just before I left India there were bad riots in Delhi.
There was a great deal of ﬁring on one occasion and
somehow or other I had to get round the area where
the rioting was going on. [I motored miles to avoid
going through the middle of it. I am sure that anyone
else would have done the same.



126

"I am absolutely co7w'mced---1 k-now---~that fear of
violent death is :2 deterrent, and no statistics, no argu-
ments whatever, will convince me that it is not, It is
somuething we know and, if we know that violent death
is a deterrent, we must assume that in the past there
have been cases when someone would have comnutted
murder-----not hon. Members of this House~----ha;d that
person not known that if he did so he would hang for
it. If there have been cases like that in the past, all
I can say is that I am sure that We shall do a grave
injury to society if We suspend or abolish the death
penalty for the future.

"The right hon. Member for South Shields (Mr.
Ede) made a powerful speech about the Evans case.
Having seen the difficulty of evidence in that great
country overseas, I am certainly no one to go to the
length of saying that is impossible for the wrong man
to be hanged. I am not one who would say that. I
think the choice is between whether this country is
going to risk in a very exceptional case under our
procedure--~which is as foobproof as it can be------the
possibility of the wrong man being hanged in future,
or to risk the case, which gets far more sympathy from
me, that some unknown and unknowable man, woman,
or child is to be murdered in future who would not be
murdered if the death penalty were retained.

"To me, there is no question of what the choice is
to be. I should regard a vote cast for suspending or
doing away with the death penalty as one full of risk
that some innocent person would be murdered who
otherwise would not have been murdered. II would
much rather take the risk that some fellow might get
himself into a position in which he is brought before
a judge and jury and yet, with all the evicience against
him that he is a murderer there is something wrong.
In my view, there is an enormous chance
against that sort of thing happening, whereas, if we
abolish the death penalty, the chances of innocent
persons being murdered who otherwise would not be
murdered I believe are very great indeedl'.

354. We shall now refer to the arguments advanced in
support of each of the main views which have been sum-
marised above. Those who have expressed the View the}
capital punishment acts considerably as a deterrent (ie. that
the deterrent object is sufficiently. achieved), have pointed
out, that successive conﬁrmation of death sentences in
cases from districts notorious for the record of crime
has served as-a check'. A hardened criminal, it is said,
is very likely to commit murder after undergoing a life

2 5. No. 95 (A _Rctired fudge arm Bombay High com); 3. No. us
(A District and Sessions Iudge in Guiana State}.



127

term. The psychological and social effect of the severest
punishment on society has also been stressed, and it had
been contended that even if a particular form of punish-
ment is not a deterrent by itself, that is no ground for sub-
stituting it by some other form of punishment, if it is felt
necessary to have that punishment for creating the proper
psychological and social effect on society. Execution of a
person responsible for treason and murder, it is pointed
out, has certainly a far more desirable and much better
effect on every one than if he is merely sent to jail from
where he can return and again commit serious crimes".

355. It is also stated, that the fear of capital punish-
ment is the greatest deterrent, and if it is not sufficiently
achieved, the failure of the object may be due to the in-
adequate implementation of the law. An apprehension
has also been expressed, that if the sentence of death is
abolished, the murderer would be equated, so far as the
award of punishment is concerned, with those who com-
mit rape or robbery. This may encourage persons who
commit robbery or rape to kill their victims (in the course
of the commission of the crime), because, even if they do
that, the punishment would remain the same? Every
potential criminal or person who commits a crime, it is
stated, knows in his heart of hearts what the consequences
of his action would be, and his actions are also guided to
a great extent by the nature and quantum of
punishment likely to be awarded. In this context, death
penalty does have a deterrent effect, and is in any case a
suitable punishment for certain types of crime. It is also
stated, that in a country like India, where there is acute
poverty and where the percentage of literacy is very low
and party or family feuds are innumerable, abolition of
capital punishment would result in an adverse psychologi-
cal effect, aggravating the crime situation'.

356. To sum up, while nobody has stated that death
penalty acts as a deterrent i_n all cases (in fact it will be
logically impossible to make such an assertion so long as
there is a single case of murder), the persons and bodies
in this category have pointed out, that it acts, considerably
as a deterrent, or acts as a deterrent in a large number of

cases.

357. As against this, those who have questioned the
deterrent effect of capital punishment have advanced seve-
ral arguments. An argument advanced in many of the
replies is, that on the basis of the studies made and ﬁgures
collected in other countries, it appears that the object of

I A State Government, in reply under question 2(a), S. No, 1s2_
2 A State Government under question 2(b). S. No. 182.



128

deterrence is not achieved. It is pointed out, that the tem-
porary abolition of capital punishment in some countries
has actually decreased capital crimes. It is also statedl,
that psychologists take the view, that in every given
community, there will be found a segment of it pre-deter-
mined with pathological and criminal potentials transcend-
ing the deterrent effect of any punishment, including
capital punishment.

358. According to a leading Theosophist2, the death
sentence does not act as a deterrent; The reply adduces
various reasons in support of this view, which may be
brieﬂy summarised as follows:--

(i) Many other countries have abolished capital
punishment without any increase in homicide;

(ii) The police would do their duty better without
the fear of having to bring a man to the gallows;

(iii) The juries would do their duties better.
Decent and intelligent men avoid serving on juries ot
murder trials, since they shrink from shedding the
blood of a fellow being;

(iv) Administration of the law would be speedier,
(v) There would be less corruption in courts;

(vi) Executioners and others concerned suﬁer
from the degrading and brutalisin-g effect of such
Work;

(vii) Witnesses and readers of executions feel a
brutalising and hardening inﬂuence.

359. The conclusion of the Royal Commission on Capi-
tal Punishment" is also quoted to the effect, that the ﬁgures
of other countries do not give any clear evidence that the
abolition of capital punishment has led to an increase in
homicide rate, or that its r-e-introduction has led to a fall.
Another argument advanced is to the effect that re-exami-
nation of the entire ﬁeld of criminal law, based on Indian
culture and philosophy, .is needed. The highest Brahaman
dwells in every one of us, in the criminal, in the police-
man and in the Judge', it is stated. It is contended, that
punishment and the prisons should have an Indian "ethos"
as the basis to reform the criminal, and not the legal system
which the British rulers have evolved for ensuring a loyal
social set up and respect for the colonial power. Another
argument advanced is, that the rates of crimes are condi-
tioned by factors other than the death penalty. Thus, man

I Quoting from Dr. Philip Q. Roche, "A Psychiatrist Looks at
the Death Penalty", in the Prison Journal (October 19, 1958), page
46.

2 S. No. 479.

3 The reference scents to be to R.C. Report, page 23, paragraph 65.

4 S. No. 118



129

is unimportant in this tragic drama, and is simply caught
in the stee1--trap of circumstances'.

360. It has also been contended that certainty of detec-
tion and conviction act as a deterrent rather than the pros--
pect of capital punishment. It is pointed out, that in
England numerous minor crimes were capital at a certain
time. but the abolition of death penalty has not increased
their number? The comparative ﬁgures for the yearly
rate of murders for States in America with and without
death penalty have been referred to3, in support of the
argument that abolition States have consistently lower
rates in most cases than retention State'*. As regards the
argument that a released murderer might commit the same
offence again, it is stated3, that the evidence received by the
Royal Commission5 showed, that in countries like Belgium,
Denmark, Netherlands, Norway, Sweden and Switzerland,
cases of released murderers committing crimes of Violence
again were rare. It has been pointed out, that the majo-

rity of murderers can be remoulded by proper treatment
and guidance".

361. The personal opinion of Sir Ernest G0wers7 has
been quoted to the effect, that it is impossible to arrive at
a ﬁrm conclusion about the deterrent effect of the death
penalty or, indeed, of any form of punishment. It is also
argued", that capital punishment is a type of punishment
whose advantages can be obtained by other means and
whose disadvantage cannot be prevented in any other
way than by abolishing it".

362. The want of publicity in the execution of death
sentence in India has also been put forth as weakening its
deterrent efﬁectm. It is also argued, that ﬁgures all over
the world show that the deterrent effect is not achieved".

I S. No. 122.
2 S. No. 126.
3 S. No. I19.

4 Figures from the "Crime Problem" by 'W.C. Reckless, New York,
page 465, quoted.

5 Royal Commission Report, page 239, paragrph 651, end,

6 View of Mr. Lawes, former warden of Sing Sing prison, quoted
from the "Encyclopaedia of Criminology" by Branham and Kutash.

7 Sir Ernest Gowers, view expressed in his book. "Life for Life".

8 Relying 0'1 llentig, "Punishment----Its origin, purpose and
psychology".

9 S. No. 122.
I0 S. No. 117.
11 A Member of the Rajya Sabha, S. No. 206.



130

In one of the replies'. two of the usual types of homicide
have been dealt with thus--

"Where murder is done without premeditation on
spur of the moment and under grave or sudden provo-
cation", it is obvious that death sentence can never act
as a deterrent. The other type of murder commonly
found is where a felhd or faction exists in a village.
Here too the sentence of death for the man found
guilty does not put an end to the feud or factionf'.

363. This brings us to the last category under this topic,
namely, those who have emphasised that capital punish-
ment acts as a deterrent, but partially. It is not necessary
to re-state in detail3 the various shades of opinions expres-
sed by these persons.

364. Another reply' states, that it neither deters crimi-
nals nor renders justice," and, that, on the other hand,
family feuds are carried on.

365. Another reply5 states, that the existing law does

not sufficiently achieve the deterrent object, because courts
award the death sentence in a very rare number of cases.

368. A few replies" state, that it does not act as a deter- .

rent, because it is not carried out in public.

367. The reply of an Advocate, who was previously a
Member of Parliament", states, that due to its application
during these long years the death penalty has lost its deter-
rent effect (if it had any such effect initially), and that,
making the utmost concession that it has some deterrent
effect, it is certainly not a unique deterrent; because, if it
were a unique deterrent, the number of murders would not
have been what it has been throughout these years. "If a
motor-car runs at exactly the same speed whether the
brakes are off or on, surely it is an indication that the
brakes are not working". The reply states, that the ex-
ample of the State taking life does more to lower the value
of human life than the deterrent inﬁu.-ence of death penalty.

368. A District and Sessions Judge in the State of
Maharashtra', while stating that death penalty is successful
as a preventive measure, expresses the view that it is not
more effective as a deterrent than any other penalty. When
a murder is committed, the deterrent effect has obviously

I An Advocate, through the Bar Council of India, S.No. I61.
2 As regards provocation, see section 300, Exception I, I.P.C.

See, paragraph 334, supra.

S. No. 255.

S. No. 286 (A District Magistrate).
8. Nos. 291 and 296.

S. No. 306.

S. No. 341.

»)O\lO\'JI#'..'u



1371

failed. Sex murders and murders committed by mentally
abnormal persons are unlikely to be deterred by any
threats. The same is true about impulsive murders. "The
repulsive features and undesirable effects of capital punish-
ment outweigh its unique force as a deterrent".

369. Another District and Sessions Judge in the State
of Maharashtra' states, that the actual imposition of capital
punishment is conﬁned to very few cases of murder, so that
the number of capital sentences in a particular area or
district is not commensurate with the number of proved
cases of murder from that area or district. He states, that
the ratio between cases of actual imposition of capital
sentence and cases in which the lesser sentence was impos~
ed in a particular area would Work out at 1 to 50. This
necessarily makes it diﬁicult to state conﬁdently, that the
existing law, as now administered, sufﬁciently achieves the

deterrent object.

Tome N 0. 26

Conclusion regarding deterrent effect

370. In our view, capital punishment does act as a deter- C_onc1u-«
rent. We have already discussed" in detail several aspects ''°'' .'°"
of this topic. We state beiow, very brieﬂy, the main points dm,,f,,t
that have weighed with us in arriving at this conclusionzw cﬂect.

(a) Basically, every human being dreads death.

(b) Death, as a penalty, stands on a totally differ-
ent level from imprisonment for life or any other
punishment. The difference is one of quality, and not
merely of degree.

(c) Those who are specifically qualified to express
an opinion on the subject, including particularly the
majority of the replies received from State Govern-
ment, Judges, Members of Parliament and Legislatures
and Members of the Bar and police ofﬁcers----are def»-
mteiy of the VIEW that the deterrent object of capital
pumshment 1S achieved in a fair measure in India'.

(51) As to conduct of prisoners released from jaﬂ
(after undergoing imprisonment for life), it would be
diﬂicult to come to a conclusion, without studies ex-
tending over a long period of years.

I S. No. 346.
30§j'§gQ'd;:;;l:'d discussion as to deferrent effect, Paragraphs
grlépizeséznigeasg;téyuzgxrlzestion 2(b). summarised separately; Para-

'6



132

(e) Whether any_other punishment can posses all
the advantages of capital punishment is a matter of
doubt'.

(f) Statistics of other countries are inconclusive
on the subject. If they are not regarded as proving
the deterrent effect, neither can they be regarded as
conclusively disproving it.

371. The statistical material which we have tried to ana-
lyse shows that the effect of abolition has not been uniform.
There are countries in respect whereof the ﬁgures are
inconclusive; there are countries, in respect whereof the
ﬁgures tend to prove the deterrent effect of the death
penalty; and there are countries in respect of which the
ﬁgures do not prove the deterrent effect of the death
penalty. As regards the last category, we should state
here, that in regard to social and economic conditions, cul-
tural level and in regard to general climate, as regards law
and order, many of them differ from India. Lord HeWart's
observations may be quoted":

"The ﬁgures of any country over a series of years
may vary for quite other reasons than the presence or
absence of the death penalty. They may be affected by
such circumstances, as for example, economic depres-

sion or civil unrest and disorder. Of such undescrib- '

ably varying inﬂuences in different parts of the World
statistics take no account".

372. As was pointed out in the Canadian Report', the
interpretation of statistical data involves difficulty because
the ﬁgures cannot express the differences in tradition,
standards of law----enforcement, social conditions and other
factors in various countries or even regions within a
-country.

(g) Moreover, in most of the countries which,
having abolished capital punishment, have maintained
the abolition, the rates of homicide are far lower than
in India'.

(h) Certainty of punishment, is, no doubt, an
important factor contributing to the deterrent effect of
punishment; but that is a consideration applicable to
all kinds of punishments, and thus, to any other
punishment that may be substituted for the penalty of
death. That does not detract from the basic difference
between death and a lesser punishment.

I See also discussion relating to arguments for abolition; Paragraphs
262----265, supra.

2 Lord I-Iewart, Not without prejudice, page 214, cited in the Ceylon
'Report (minority view), page 103, paragraph 18. .

3 Canadian Report, page 13, paragraph 48.

4 See ﬁgures for I962, for abolitionist and retentionist countries, given
-«separately. '



13;'-

(i) Cases of abnormal persons or persons acting
under peculiar mental stress apart, a human being of
ordinary framepof mind would, before committing a
crime, think of the consequences certainly where death
is the consequence.

(3') Further, the argument that the offender never
thinks of the possible punishment would take away the
foundation of all punishments, and not merely of the
punishment of death.

(k) There is a considerable body of opinion to the
effect, that the death penalty acts as a deterrent'-2.

(1) When a persor: is brought up in the knowledge
of a possibility of a sentence of death, that knowledge
must form part of his mental make--up, and may be
reasonably supposed to inﬂuence his actions in ordinary
situations; and we do not believe that every case of
murder (or other capital offence) is one where the
offender completely disrobs himself of .the fabric of
fears that would have been woven by the threads of
this knowledge. The element of fear would not be
totally absent, though its operation may be offset in
part by certain other facts.

(m) In short, the one big basic fact of fear of death
has not been displaced by all the arguments, taken
together, that have been advanced in negation of it.
The springs of human behaviour ﬂow within the
channels created by law on psychologically valid foun-
dations. The erratic storms of provocative circum-
stances, or the obstables erected by other counter-
acting inﬂuences, may divert those springs or block
their smooth flow, but only occasionally.

I See replies to Question. 2(b), summarised separately; paragraphs 334
--- 369, supra.

2 See also view of Sir Patrick Spens, House of Commons (1955-56),
Vol. 548, Cols. 2565-2566, paragraph 353, supra.



134
CHAPTER VI

DETAILED CONSIDERATION OF OFFENCES
TOPIC NUMBER 27
Replies to question No. 3 (a) \

373. One' of the questions put in the Questionaire,
was as fol1ows:---

"Would you like to retain the sentence of death
for all or any of the offences under the Indian Penal
Code which are at present punishable with death?"

(The object behind putting this question was to elicit
the opinions of those who, while favouring retention of
capital punishment, would still like it to be abolished for
certain offences, or of those, who, while favouring its
abolition in general, would still like to retain it for certain
offences).

374. The replies received on this question fall in two
categories. Certain persons or bodies have suggested a
scheme of their own, in total substitution for the existing
capital offences under the Penal Code. There are, on the
other hand, some replies, which suggest only removal of
capital punishment for one or more of the offences at pre-
sent punishable with death, without disturbing the other
sections. It would be convenient to deal with the two
categories separately.

375. Under the ﬁrst category (i..e., persons or bodies
sending replies suggesting a speciﬁc scheme), there are
several sub--categories. One suggjestion is, that legislation
on the lines of the (English) Homicide Act, 1957 may be
adopted". Certain replies'-5 have suggested that the
death sentence may be conﬁned to----

(i) pre-meditated murder;

I Question 3(3).

2 A High Court, S.No. 136, under question 3(a).

3 Reply of a High Court Judge, S. No. 105, under question No. I, sug-
gests the edoption of the provision for diminished responsibility from the
Homicide Act, 1957.

4 The replies were received before the Murder (Abolition of Death
Penalty) Act, 1965, was passed.

5 Supreme Court Bar Association, S. No.11o, and Bar Association of
India, 8. No. 183.



' 135

(ii) murder in the course of dacoity;

(iii) waging war against the Union of India;

(iv) abetment of suicide by child or insane per»
son;

(V) offence under section 303, Indian Penal Code
on the same lines as under section 302, Indian Penal
Code;

(Vi) abetment of mutiny by a member of the
Armed Forces;

(Vii) attempt to murder by life convict.

(Some replies' have also suggested, that certain other
offences, like adulteration of food and drugs and espion-
age during grave emergency, should also be punishable
with death; but this is a matter to be dealt with separa-
tely?)

376. One gentleman5 would like the retention of death
sentence only in certain cases enumerated by him, being
(a) offences under sections 303, 121, 132, 194, second para-
graph and section 307, Indian Penal Code, and (b) only
certain types of murders, namely, (i) murder of a person
under 12 years of age; (ii) murder of a person under 18
years, or of a woman in the course of or furtherance of
theft, robbery or dacoity of property on their person; (iii)
murder of a woman after committing rape on her; (iv)
_murder in the course of resisting, etc., of lawful arrest;
(v) murder of a police officer acting in the execution of
his duty; (vi) murder of a Prison Oiﬁcer acting in the
execution of his duty or of a person assisting a Prison
Oiﬁcer; (vii) murder by a convicted murderer; (viii)
murder preceded by torture; -(ix) murder of more than
one person in the course of the same transaction; (x)
murder committed in the course or furtherance of or fol-
lowing an offence punishable With imprisonment, and (xi)
murder by shooting or causing an explosion.

377. In one of the replies', the suggestion has been made
that the death sentence may'be netained only for waging
war. '

378. Another reply5 has suggested, that the death
penalty should be retained by way of exception only in
the case of homicidal maniacs or those lunatics with homi-
cidal tendencies or motiveless malignities or those who, in
the interest of the safety of the society, cannot be left at
large.

I For example the Supreme Court Bar Association, 8. No. no.
2. See discussion relating to question 3(1)); Paragraphs 414-428 and
436 -439, 463. 473-474, infra-
3 Law Secretary to a State Government, S. No. I62.
4 A Member of the Raiya Sabha, S. No. 206.

5 S. No. 211.
11-122 M of Law



136

379. It may also be noted here', that in the replies to
another question, a division of the categories of murders
into ''capital'' and "non-capital" has been suggested in
some replies; but a detailed discussion of that aspect is
unnecessary herez.

380. One of the replies?' states, that for the offences
under sections 121, 132, 194, 305 and 307, Indian Penal
Code, the sentence of death is unreasonable. Substitution
of life imprisonment or rigorous imprisonment for speci-
ﬁc periods will, it states, restore the individual to society
by bringing about a lasting reform in his character. Most
of these crimes, it is stated, arise out of an undisciplined
Will, and therefore, reformation of criminals, which is the
most important element in punishment, should be taken
note of. In the case of these offences, we must measure
the gravity of the crime by the gravity of the right viola-
ted, and (it is stated) deterrence should come in as a
secondary qualiﬁcation; it should not occupy a pre-emi-
nent place.

381. The suggestion of a District Bar Association' is
that the death penalty be limited to oﬁences under sec-
tions 121, 132, 302 (where there are aggravating circums-
tances, iie., where the motive is a personal gain or sex),
303 and 307, Indian Penal Code.

382. The replies of two Sessions Judges-5 suggest that
the sentence of death should be retained only for offences
under sections 121, 302, 303, 305 and 396, Indian Penal
Code. This is also the reply of a District Bar Association',
and is, in substance, the suggestion of a Judicial Oﬁicers'
Association'. 2

383. The reply of an Advocate, who is also the Member
of a State Legislature", suggests retention of the death sen-
tence only for offences under sections 302, 303, and 3-96,
Indian Penal Code.

384. The Law Minister of a State Government has sug-
gested the following scheme':-
"I would like the retention of the permissibility of
death sentence only in the following cases:---

(1) Oﬁ-ences under section 303; (Death sen-
tence to remain obligatory);

I Q. 6(a) and 6(b).

2 See paragraphs 663-699, infra.

3 A District Panchayat Oﬁicer, S. No. 425.
4 S. No. 343.

5 8. Nos. 358. 360.

6 S. No. 368.

7 S. No. 373.

. No. 226.

. No. 253, under question 3(a).



137
(2) Offences under section 121;
(3) Offences under section 132;
(4) Offences under paragraph 2 of section 194;

302 (5) Following types of offences under section

(i) Murder of a person under 12 years or
3022-

(ii) Murder of a person under 18 years of
age, or of a woman, in the course of further-
ance of theft, robbery or dacoity of property
on their person;

(iii) Murder of a woman after comrnitt-
ing rape on her;

(iv) Murder done in the course of or for
the purpose of resisting or avoiding or pre-
venting a lawful arrest or of affecting or
assisting escape or reserve from lawful cus-
tody;

(v) Murder of a Police Officer acting in
the execution of his duty or of a person assist-
ing a police oﬁicer so acting;

(vi) Murder of a prison officer acting in
the execution of his duty or of a person assist-
ing a prison officer so acting;

(vii) Murder by a person who has already
been convicted of another murder;

(viii) Murder preceded by torture;

(ix) Murder of more than one person in
the course of the same transaction;

(x) Murder committed in the course of
furtherance of following an offence punish-
able with imprisonment for life; and

(xi) Murder by shooting or causing an
explosion.

(6) Offence under the second paragraph of
section 307 (death sentence to be obligatory);

(7) Abetment of offence punishable with
death.

No other offence under the Indian Penal Code need,
in my opinion, be made punishable with death.".

385. We may now deal with the second group of re-
plies, i.e., the suggestions regarding speciﬁc oﬂences of the
Indian Penal Code. "



Section 121
waging war
against the
Government.

~:Penal Code has become obsolete, as it was

138

386. Abolition of the death sentence (with retention of
imprisonment for life) for the offence of waging war
against the Government, has been suggested in certain
repliesl-3-3-4-5 One reply states", that section 121, Indian

intended to
punish insurrections designed to prevent the King from
reigning according to law.

Regarding section 121, Indian Penal Code one sugges-
tion7 is, that where a man, by reason of his political views,
openly revolts against the system of Government which,
he believes, has rendered itself unserviceable for the cause
of the advancement of the people and the country, the
death sentence may be done away with. But, on the other
hand, even those who are against the death sentence" have
stated, that if it is to be kept, it should certainly be kept
in the case of traitors, saboteurs, spys, etc.

In the reply of an Advocate it has been stressed9_ that
it is natural with "every young blood" to endeavour to
bring about a change in the existing form of Government,

_ and therefore, the oﬂence under section 121, Indian Penal

Section 132
Abetment of '
mutiny by a
member of
the armed "
forces.

Code should not be a capital one.

387. Abolition of the death sentence for the offence of
abetment of mutiny by a member of the armed forces has
been suggested in certain replies. '°-"-"-"-

A few other suggestions are to the eﬁect that the offence
under section 132, Indian Penal Code should be removed

'~ "from the list of capital offences".

VI A Pleader, S. No. 151.
2 Bharat Sewak Samai, New Delhi, S. No. 145.
3 S. No. 138.
4 Bharat Sewak Samai, New Delhi, S. No. 145.
_5 A Pleader, Saharanpur, S. No. 151.

'6 A former Law Secretary to a State Government. S. No. 139.
7 S. No. 249.

V8 S. No. 255.
9 S. No. 409.

"10 S. No. 138.

II An Inspector General of Police, S. No. I3 I.

' ' 1'2 A Reader in Criminal Law, S.No. 107.

13 S. No. 145.
I4' A Pleader, Saharanpur, S. No. 15!.

' ': 15 S. Nos. 279, 358, 410, 412.



139

_ 388. Abolition oi' the death sentence for the offence of Section 194
giving false evidence leading to execution of innocent per- 3°°°"d h
sons has been suggested in certain replies'-2. f::?§"',£,i_"'

deuce .
leading to.
execution of
innocent

Several other replies have, impliedly or expressly sug- "°'s°'"'

gested the deletion of the offences under section 194,
second paragraph, Indian Penal Code, from the list of capi-
tal offences? One reply" states, that the giving of false
evidence under section 194 may be due to police pressure,
and therefore the offence should not be punished with
death. ' '

389. Abolition of death sentence for the offence of mur- 50050"
der has been suggested in certain replies. In View of the gzﬁﬁer
importance of this offence, it would not be out of place to' '
giscuss and analyse the replies on this point somewhat in

etail. . ,

390. In one reply, the suggestion made is' that as re-I
gards murder, the sentence of death should be retained
only where the act is done with the intention of causing
death, and even here, it should be murder premeditated,
or murder of more than one person or murder by ﬁre-
arms or poisoning? This and similar suggestions can be
considered under another question?

391. It has been suggested in some replies that death Section; '
sentence should not be mandatory for the offence under 303-.-:. A
-section 303 of Indian Penal Code. v  '

Some High Court Judges have suggested that in the
case of an offence under section 303, Indian Penal Code,
the death sentence should not be mandatory, and the
alternative of imprisonment for life should be proVided7-9.
'This is the View of some Sessions Judges also9.

One reply" states, that there is no reason why a life
convict should be subject to a higher penalty than others.

1. A Bar Council, S. No. I32 (impliedly).

2 An Inspector-General of Prisons, S. No. 143. ;

3 A Member of a State Legislature, S. No. 226 ; a High Court Judge, S.
No.23o a City Civil Court Judge, S. No. 373 ; District and Session:
Judges, S. No. 384, 386 and 440. V

4 A District and Sessions Judge in Madhya Pradesh S. No. 375.

")5 A Bar Council of Kerala (S. No. I32), under Questions 5 and
6 .
6 Questions 5 and 6(b}
7 Chief Justice of a High Court, 5- N0- 393
8 A High Court Judge, 8. No. 230.
9 A District and Sessions Judge, 3- N0-383;Ui1d€f Question 4-
S. No. 121.
I0 A District and Sessions Judge, S. No 375



Section
305'-
Abetment
of suicide
by child or
insane
person.

Section
307-
Attempt to
murder by
I ifc convict.

140

392. Abolition of the death sentence for the offence of
abetment of suicide by child or insane person (section
305, Indian Penal Code) has been suggested.

Abolition of the death sentence for this offence' has

been suggested by one High Court".

Its abolition for this oﬁence is also suggested by one
Bar Council5, one Inspector General of Police", one Ins-
pector General of Prisons5, and others"-7. A retired High
Court Judge" has suggested, that the death sentence may
be retained, except perhaps under sections 305 and 307,
Indian Penal Code. The death sentence for this offence
has been criticised as too "severe" in another reply".

Several other replies" have suggested that capital
punishment should be abolished for the oﬁences under
section 305, Indian Penal Code-.

The reply of a District and Sessions Judge in the State
of Madhya Pradesh" states that capital punishment should
be removed for the oﬁences under section 305. The reply
also states, that it is true that suicide under section 305, is
committed by a child or insane person, but there is no
justification to place the offence under this section on a
different footing than the offence under section 306.

393. Abolition of the death sentence for the offence of
attempt to murder by a life convict has been suggested in
certain replies. '',1',''.

A retired High Court Judge has suggested" that the
death sentence may be retained, except perhaps under
sections 305 and 307.

I Section 305, Indian Penal Code.

2 A High Court, S. No. 187, in reply to Question 3(a).
3 A Bar Council, S. No. 132. (impliedly);

4 An Inspcctor--General of Police, S. No. 131.

5 An Inspector-General of Prisons, S. No. 166.

6 A Reader in Criminal Law, S. No. 107.

7 A Mercantile Association, S. No. 153.

8 A Retired Judge of the Bombay High Court, S. No. 95.
9 A member of the Bar Council of Madras, S. No. 1o4(a).

IO AI-ligh Court Judge, S. No. 230 ; Members of State Legislatures S.
No. 237 and 257; A_State Government, S. No. 242; Law Minister of at State
who has suggested his own scheme, S. No. _253; _an Advocate 112 West Bengal,
S. No. 404 5 a District and Sessions Judgem Orisoa, S. No, 433 S District and
Sessions Judges in Kerala S. No. 438 and 364 ; a Collector and District
Magistrate, S. No. 332 ; A District and Sessions Judge, S. No. 548.

11 S. No. 371.

I2 A Bar Council, S. No. 132 (impliedly).

[3 An Inspector General of Police, S. No. I3I(a).

14 A Pleader, Saharanpur, S. No. 151.

15 A Retired Judge of the Bombay High Court, S. No. 95.



141

Several replies have suggested that the offence under
section 307, Indian Penal Code, should not be capital one.'

The reply of a District and Sessions Judge in the State
of Madhya Pradesh2 states, that there is no reason why a
person undergoing a sentence of imprisonment for life
should be punished with death, if in committing the offence
of attempt to murder, he causes some hurt.

The reply of a District and Sessions Judge5 states_ that
in respect of sections 303 and 307, Indian Penal Code, there
is no reason why a life convict should be subject to a
higher penalty than others.

394. Abolition of the death sentence for the offence of Section

dacoity with murder has not been suggested Speciﬁcally. 396- _

Daorgity with
One suggestion' relating to section 396 states that onlym er'

the dacoit who actually commits the murder should be

punished with death, and not the other dacoits.

A High Court Judge5 would like to retain the death
sentence only for murder, and that too murder for gain
and pre-meditated murders. On the other hand, however,
many of the replies which otherwise are in favour of par-
tial abolition have favoured' the retention of capital punish-
ment for the offence under section 396.°

TOPIC NUMBER 28
Retention or abolition for each oﬁence considered

395. Assuming that capital punishment is to be retained, Retention
the next question is whether its abolition for any of the or abolition.
particular offences, which are, at present, capital should be f°f "ch
recommended. We have summarised the replies received fgggfgcrcd
in this connection.' But, as at present advised, we do not ' '
feel ourselves justiﬁed in recommending any material
change. We have attempted to show the principle on
which the penalty of death is allowed by the law for these
oﬂencesf' Unless the application of that principle leads to
any serious anomalies or hardships, arising from other
factors which overthrow the balance, the principle need not
be abandoned.

I High Court Judges, S. Nos. 230, 262 a District Bar Association
in West Bengal, S. No. 234 ; a Member of a State Legislature,
(impl edly), S No. 237 a Bar Association in the State of Madras
S. No. 239 ; a Member of State Legislative Council, S. No. 257 ; a, District
and Sessions Judge in the State of Maharashtra, (impliedly), S. No. 358 ;
a District and Sessions Judge in the State of Kerala (impliedly), S. No. 364 ;

2 A District and Sessions Judge, Madhya Pradesh, 5. No. 371.
3 A District and Sessions Judge in Madhya Pradesh, S. No. 375.
4 A District Bar Association in West Bengal, S. No. 234.

5 S. No. 262.

6 S. Nos. 358, 360, 367, 370, 373, 421, 425, 431 and 433.

7 Paragraphs 313-394, supra.

8 Paragraphs 77-80, supra.



142

396. Even the offence under section 121, Indian Penal
Code, though it may, in one view, be treated as a "political"
One, 15 0116 f0r Which there is abundant justiﬁcation for
retaining the sentence of death. If the persons committing
such offence were to succeed in their object, the whole
machinery of the Government would collapse. We cannot
agree with the view that this section has become obsolete.
Preservation of an orderly society is essential to the func-
tioning of all laws, and should be ensured by all possible
means. If we encourage the change of Government by
violent means, every disgruntled person will take it into his
hands to overthrow the Government.

Section 132, Indian Penal Code, also stands on a some-
what similar footing.

397. As regards the offences under sections 121 and 132,
Indian Penal Code, we may refer to the reply of a very
senior Advocate of the Bombay High Courtl, which states-

"Sections 121 and 132 of the Indian Penal Code deal
with matters of high policy, general security, allegiance
and loyalty to the State and the country, and military
discipline; and is mainly a matter for the civil and
military authorities of the State to consider. From the
stand-point of public security, they are grave offences,
and the death penalty, if appropriate in the exigencies
of the situation, is by no means excessive".

398. Next, the penalty of death for the offence of giving
false evidence leading to the execution of an innocent per-
son (under second paragraph of section 194, Indian Penal
Code), is not only in conformity with the above mentioned
principle, but is eminently commendable from other ethical

considerations also.

Under section 194, the witness giving false evidence
'ought to be held as much responsible as if he had killed
the person innocently with his own hands.

399. The question may be asked whether the offence of
giving false evidence leading to the execution of an inno-
cent person is a capital one in England. It is not easy to

answer this question. There is no statutory provision on.

the subject. The offence of perjury is punishable in Eng-
land under the Perjury Act, 1911.2 But that does not pro-
vide for the sentence of death in such cases. Section 1 of
that Act authorises imprisonment only up to 7 years.
Fabrication of false evidence is a mis-demeanour, for which
also only imprisonment can be awarded.'

1 S. No. 318.

2 Perjury Act, 191! (x and 2 Geo. 5. Chapter 6).
3 Archbold (I962), paragraph 3501.

4 Archbold (I962), paragraph 3544.



143

400. In a case1 which arose in the 18th Century, an
attempt was made to secure a conviction of murder for
killing by perjury, but the attempt was given up. This
case is sometimes cited as authority for the Proposition that
a person who gives false evidence which leads to the con-
viction and execution of an innocent person is not guilty
of murder? From a detailed study of the case. however,'
it would appear that the attempt was given up not from
any apprehension that the point was not maintainable, but
from other prudential reasons, probably a fear that wit-
nesses would be rendered afraid to give evidence. A full

history of the English case will be found in the under-
mentioned work."

401. If the matter were to be considered purely from the
point of causation5 it could perhaps be argued, that the
chain of events started by the offender is "interrupted" by
the act or omission of a third person (in this case, the
Court), who is not a confederate of the accused or controlled
by him or acting in pursuance of a common purpose with
him. There is, however, a sufﬁcient answer, namely, the
offender in this case intended or knew it to be likely that
a death sentence would be passed, and the course of justice
Was polluted by the offenders own misconduct.

It would appear, that in 1692, a Bill was introduced in
England to make it a capital offence, to commit or suborn
perjury in a capital case, but the Bill did not become law."

It may be of interest to refer to a provision in the
Tasmanian Criminal Code on the subject.'

402. In any case, the provision in the Indian Penal Code
should be retained to avoid doubts. There have not been
many reported cases under the section. The offence is non-
cognizable, and triable exclusively by a Court of Session,

and a prosecution cannot be initiated without the complaint
of the Court."

..__

I R. v Macdaniel, (1756) I Leach 44.
2 Halsbury, Third Edition, Vol. IO, page 707, paragraph 1353.

3 Turner and Armitage, Cases on Criminal Law (1964), pages
215 and 216.

4 Radzinowicz, History of English Criminal Law (1956), Vol. 2, pages
327-332-

5 Generally as to causation, see Russell, on Crime (1964), Vol. I, pages
4I2_--4I8 and Howard, Australian Criminal Law (1965), pages 28-29.

6 Russell on Crime (196), Vol. I, page 426.

7 Under section 153(6\ of the Tasmanian Criminal Code, if two
or more persons bring about the execution of a person by carrying
out a conspiracy to give false evidence against him they are deemed
to have caused his death.

8 Section 195, Code of Criminal Procedure, 1898.



Perjury in
other '
countries.

144

403. Oﬁences under sections 196, 197, 198, 199 and 200,
Indian Penal Code, are akin to offences under section 194,.
and need not be discussed separately.

404. It may be noted, that in several countries of the
world, perjury or unlawfully causing sentence of death and
execution is a capital offence. These countries are Ceylon,
Ivory Coast, Dahomey, France, Iran, Luxemburg (de facto
abolitionist), the United Arab Republic, Somalia (Northern),
Somalia (Central and Southern), Sudan, Togo and
Turkey.'-2

405. So far as the offences under sections 302 and 303,
Indian Penal Code, are concerned, no discussion of the prin-
ciple on which the penalty of death is imposed is necessary
at this place. Certain points of detail, such as categories
of murders, will be considered separately.-" The suggested
tests of "pre-meditation)" and "intention" are also discussed
separately.'

406. As regards the question whether the death sentence
under section 303 of the Indian Penal Code should continue
to be mandatory, we have dealt with it in detail separate-

ly!'

407. Some observations appear to be called for regarding,
the offence under section 305, Indian Penal Code. This
deals with abetment of suicide by a child or an insane per-
son. This is really a case of homicide, where the criminal
sends his mental faculties to work in aid of the physical
act of another person. That other person, now dead by
his own hand, cannot be punished (and ought not to be
punished), but the moral reprehensibility of the invisible
hand, that guided the act" is unquestioned, and, in our opi-
nion, is of a magnitude suﬂicient to justify the inclusion of
the act within the range of the highest penalty of the law.
We are aware, that this offence does not attract the penalty
of death in many of the' countries which have retained, capi-
tal punishment in general."-7 But that is not a conclusive
argument.

I See U. N. Publication on Capital Punishment, (1962); Table at
the end.

2 See also paragraph 401, supra.

3 See paragraphs 704-706, infra.

4 See paragraphs 706-725, infra.

5 See separate discussion as to mandatory sentence under section 303,
under question 4; paragraphs ﬁ6--59r, infra.

6 See U. N. Publication on Capital Punishment (1962), Table I,
at the end, under "Aiding in the suicide of a child, etc." The
offence is capital in Ceylon, India, Somalia (Northern) and Sudan.
Pakistan is also understood to have retained the sentence of death

for abetment of suicide, etc., though not so stated in the U. N.
Publication.

7 As to England, .\'ee section 4, Homicide Act, 1957, as amended by the
Suicide Act, 1961.



145

408. If the punishment of death, while being retained for
murder, is removed for this offence, an attempt might be
made to circumvent the law either by doing acts which
will fall only under abetment of suicide, or by distorting
the facts and circumstances so as to make it appear that
the case is one only of abetment of suicide. It may be
noted, that even in England, at common law}-2 a person
abetting suicide was treated as a principal in the second
degree to the "self-murder""' of the person committing sui-
cide, if he was present at the time when suicide is
committed.'

409. This, of course, does not mean that in every case
of abetment of suicide by a child, etc., the penalty of death
will be imposed in India. The discretion left to the Court
leaves ample room for a consideration of the moral culpa-
bility of the offender with reference to the particular
circumstances of the case.

410. So far as the offence under section 307, Indian
Penal Code (attempt to murder by a life convict), is con-
cerned, a detailed discussion does appear to be necessary.
The ingredients of the offence are sufficient to show that
the case will fall within a very narrow compass.

411. The offence under section 396, Indian Penal Code-
dacoity with murder--is, in a sense, of peculiar interest to
India. Its historical background has already been explain-
ed5 elsewhere. It may be pointed out, that in a few other
countries,''' robbery or armed burglary is punishable with
death.

412'. Where section 396 applies, the person to be sentenc-
ed to death would be either the person who actually com-
mitted the murder, or the other persons who are sought to
be made liable vicariously. So far as the person who
actually committed the murder is concerned, special discus-
sion is obviously unnecessary, as he would be liable under
section 302 also. So far as the other persons are concerned,
their vicarious liability is justiﬁable in view of the special
features of this offence.' We do not, therefore, consider it
necessary to take out this offence from the range of the
penalty of death.

I R. v. Dyson, (1823) R. & R. 523.
2 R. v. Croft, (1944) I K.B. 295, (Court of Criminal Appeal).
3 R. C. Report, page 59, paragraph 164.

4 See now, section 4, Homicide Act, 1957, as amended by the
Suicide Act, 1961, passed after the Second Report of Criminal Law
Revision Committee (October, 1960), Cmd. 1187.

5 See paragraphs 85-86, supra.

6 Ivory Coast, Dahomey, some States of U.S.A., France, Greece,
Netherlands, New Guinea, South Africa and Togo. See U. N. Pub-
lication, 'Capital Punishment' (1962), Table I, under "Robbery (armed
burglary)".

7 See paragraphs 115-121, supra.



Question
3(b).

Adultcratior:

146

TOPIC NUMBER--29
Whether other offences to be capital--Replies to Q. 3(b).

413. Question 3(b) of our Questionnaire was as
follows:--

"Are there any other offences under the Indian
Penal Code or any other law which, in your opinion,
should be punishable with death."

Many of the replies received on this question have stated
that it is not necessary to make any change in the existing
law. But several replies have suggested the addition of a
provision for sentence of death for various offences, and it
would be convenient to deal with them offence-wise.

414. It has been suggested in some replies, that adultera-'

tion of food and drugs should be a capital offence. It is
stated,' that while an ordinary murderer might in some
circumstances have some motive, the "manufacturers of
spurious drugs are "arch-criminals'? guilty of mass murder
of innocent citizens who have not given any cause for
offence. Another suggestion? is to the effect that offences
of adulteration of food and drug, where there is a delibe-
rate act done with the knowledge of the consequences
likely to follow, may be punishable with death where death
-is caused. The imposition of death sentence for adultera-
tion of medicines and drugs has been suggested by certain
High Court Judges also.-3 Another suggestion" is to the
effect that adulteration of food and drugs in a manner
likely to endanger human life, or to cause serious or perma-
nent, bodily harm (such as blindness or other permanent
physical disability) should be made punishable with death.

415. Another suggestion5 is to the effect that adultera-

tion of drugs causing or calculated to cause mass deaths .

should be made a capital offence, being an anti-social act
of a grave nature. Still another reply° suggests, that adul-
teration of food which causes death may be made a capital
oﬁence.

416. Several other replies'-3 have also suggested, that
adulteration of food and medicines endangering human
life should be punishable with death.

417. The suggestion to make adulteration of food and
drugs a capital offence has the support of a State Bar
Council9.

I A Pleader in Calcutta, S. No. 128.

2 A State Law Commission, S. No. 133.

3 Two High Court Judges, S. No. 105.

4 Supreme Court Bar Association, S. No. no.

5 An eminent member of the Bar, through the Bar Council of

India, S. No. 161. '

6 Bar Association of India, S. No. 183.

7 A District Bar Association, S. No. 219.

8 A District Bar Association. S. No. 218. ,

9 A Bar Council, S. No. :59.



147

418. A State Government1 has suggested, that "offences
of food and drug adulteration where there is a deliberate
act with knowledge of the consequences and death is
actually caused", should be punishable with death.

419. A High Court Judge? has suggested the extreme
penalty for the manufacture of medical drugs that are
either adulterated or happen to be below standard. Distri-
butors and sellers of such drugs can be dealt with by im-
prisonment, but those who manufacture them are res-
ponsible for slow but sure murder on a larger scale, and
nowadays go scot-free or with easy punishments. This
must be stopped by legislation, and the offence should be
made capital.

420. Some other important replies3-4-5 also suggest the
capital punishment for adulteration of food and drugs.

_42l. It may also be stated here, that in the course of
the evidence before the Joint Committee on the Preven-
tion of Food Adulteration B111, 1963, the question of_ the
penalty for adulteration of food was raised. Shrimati
Poorabi Mookerjee (the then Health Minister. of West
Bengal), statedé-7. that she would be the ﬁrstperson to
accept the death penalty for adulteration,1f such a
(change in the law was proposed.

422. In the dissenting note to the Joint Committee's
Report, two Members stated as follows"-9:-

"We believe that the maximum penalty for major

. offences of adulteration, particularly so if repeated,
should be, not six years as recommended by the Com-
mittee, but death or imprisonment for life. Our sug-
gestion ﬁnds valiant support in the viewof a former
Union Health Minister, Shri D. P. Karmarkar while
he was in ofﬁce, that adulterators of food are potential
murderers who deserve the highest penalty. So also
the Minister of Health, West Bengal, who gave evi-
dence before the Joint Committee, described adul-
terators as worse than murderers. If the adulterator's-

I--A State Government, S. No. 

2 A High Court Judge, S. No. 251

3 A District Bar Association in West Bengal , S. No. 2235 Sessions.
Judges, S. Nos. 358, 359 ; A Lawyers' Association in Assam, S. No. 227.

__, 4 Chief Minister of State, in his personal capacity, S. No._ 255.

5 S. Nos. 294. 316, 321, 323, 327, 335, 352.

6 Report of the .Joint Committee on the Prevention of Food Aduln
teration (Amendment) Bill, 1963, published by the Lok Sabha Secre-
tariat, New Delhi (September, 1964), pages 272--273.

7 S. No. 571.

8 Report of the Joint Committee on the Prevention of Food Adul-
teration (Amendment) Bill, 1963, published by the Lok Sabha Secre-
tariat, New__Delhi (September 1964), pages xvi. xvii. _ 

A..9N.o.57r.-:. . 



148

calculated crime can cause death, why should not
capital punishment be prescribed for such a criminal,
in any case during the Emergency, and even there-
after, so long as capital punishment is not abolished
by law."

423. The offence of adulteration of food has received
some detailed attention in many other replies which are
in favour of death sentence for this offence. Thus, it has
been stated by the Judge of a City Civil Court in a Presi-
Ldency Town', that public opinion in the country appears
to be that the death penalty should be extended to adulte-
rated manufacture, sale or offer for sale of food or drugs
that is likely to cause death and where death has been
caused by the use or consumption of such food or drug,
where the accused had knowledge or reason to believe that
.such food or drug had been adulterated.

424. In the reply of a District and Sessions Judge" in
Orissa, it has been suggested that adulteration of food
where the food is "adulterated with lethal or slow and
.sure acting poisons" should be punishable with death.

425. A State Government" has emphasised, that the
death penalty carries with it "the ultimate restraining in-
fluence on human conduct, the greater the threat the more
effective it would be". Having regard to this, it states
that adulteration of drugs and foodstuffs leadin to death
-of a person or persons, should be punishable wit death.

426. Other suggestions for punishing adulteration with
death have been received.'-''-'-''-''.

427. Another suggestion' is to the effect that harder
cases of pre-meditated planned action in the nature of
adulteration, which affects the vitality or virility of the
nation or human life, may be made capital.

428. In our Report on social and economic offences
also" we have referred to the suggestions received by us
to increase the punishment for offences under the Preven-
'tion of Food Adulteration Act, 1954.

I S. No. 484.
2 S. No. 494.
3 S. No. 5520.

4 8. Nos. 429, 431, 439 (District and Sessions Judges in West
Bengal, and a District and Sessions Judge in Otissa).

5 A District and Sessions Judge in Maharashtra, S. No. 354.
6 S. Nos. 4oo, 403, 404, 407 (Advocates in West Bengal).

7 S. No. 401 (an Advocate in Bihar).

8 S. Nos. 280, 286, 357.

9 A Barrister-at-Law, Calcutta, S. No. 150.

10. Twenty-ninth Report of the Law Commission (Proposal to in-
-clude certain social and economic otfences in the Indian Penal Code),
paragraph 152.



149

429. One suggestion1 is that oﬁences relating to the
Army, Navy and Air Force should be made capital.

430. It has been suggested in some replies" that arson A'9°n-
should be punishable with death.

431. Several repliesi'-4-5 have suggested that black Black _
marketing should be punishable with death. m3f1<°"n8~

Other suggestions to make the offence of black market-
ing a capital one have also been received."-7-8-9-1°.

One suggestion" is, that activities intended to corner
the market or calculated to withhold effectively the supply
of essential commodities to the society in times of national
emergency with a view to earning proﬁts should be punish-
-ed with death.
432. It has been suggested by some High Court J udges," c°""""°"'
that people placed in positions of responsibility who in-
dulge in serious corruption against vital national in-
terest should also receive the death sentence. A sugges-
tion for punishing with death bribery and corruption has
been made in other replies also".

433. One reply" suggests that offences under the Pre-
vention of Corruption Act, when committed in respect of
amounts exceeding one lakh of rupees, should be made
capital, and the amount also forfeited.

434. One of the Bar Councils" is amongst those who
would like the sentence of death to be imposed for corrup-
?tion.

I S. No. 127.

2 S. No. 138.

3 A Bar Council, S. No. 116.

4 A Bar Council, S. No. 159.

5 A District Bar Association, S. No. 219.

6 A District Magistrate, S. No. 286.

7 A District and Sessions Judge, S. No. 358.

8 A District and Sessions Judge (Black marketing of extreme type)
 No. 362.

9 An Advocate S. No. 410 .

to S. Nos. 281, 294, 432.

11 A District and Sessions Judge in Maharashtra, S. No. 333.
12 Two High Court Judges, 5. No. 105.

13 A Bar Council, S. No. 1x6.

14 A District Bar Association, S. No. 218.

15 A Bar Council, S. No. 159.



Espionage.

150

435. Other suggestions to the effect that the offence of
corruption should be punishable with death, are given in
the foot-notes.1--'-'-3-4-5-6.

436. Several replies7-3-9 have suggested that espionage
should be punishable with death. In another reply", it
has been suggested that espionage regarding essential
military secrets and espionage by police and security
officers on behalf of foreign countries in relation to mili-
tary secrets, should be made a capital offence. A State
Government" has suggested, that the death sentence
should be prescribed for espionage against the security of
the State.

437. Espionage during grave emergency should accord-
ing to another suggestion", be made a capital offence,

Espionage on an extensive scale, particularly when
secrets for the nation's protection and safety are involved,
should be made capital, according to another suggestion".

438. A High Court Judge" has expressed his views re-
garding espionage in these words:--

'One batch of offences is connected with espion-
age, sabotage, particularly of transport system,
military equipment and installations. In a way, these
can even now be brought by some logic under the
description "waging war with the Government or
abetting or preparing for such war". But, for clariﬁ-
cation, these should be separately enacted as offences
calling for capital punishment. Ours is probably the
only country in the present world which allows these
offences to go on ruining the country's morale and
exposing it to invasion by hostile neighbours, and
letting off the offender with ridiculously lenient sen-
tence of imprisonment.'

1 A District Bar Association, S. Nos. 223.
2 An Advocate, S. No. 272.
3 A Zila Panchayat Officer, S. No. 281.
4 S. No. 295.
5 A District Bar Association, S. No. 323.
_6 A Sessions_Judge in Orissa, S. No. 429.
7 A Bar Council, S. No. 132.
8 S. No. 127.
9 The Supreme Court Bar Association, S. No. no.
IO Chief Justice of a High Court and one Judge of the High
(gotiflto agggeing with the Report of the Secretary, Rules Committee,

11 A State Government, S. No. 182.

12 The Bar Association of India, S. No. 183.
13 S. No. 50. 1

I4 (A High Court Judge), S. No. 25!



151

439. Other suggestions to make the offence of espionage
a capital one are given in the foot-notes.1--2-3-4-5.

440. Several suggestions have been made regarding the Kidnapping.
offence of kidnapping. One suggestion is to the effect"-7
that--- (i) the offence of kidnapping together with crip-
pling, maiming or mutilating of the minor should be
punishable with death, as this type of offence is on the
increase and minors are mutilated in order to earn by
begging for the beneﬁt of kidnapping, and

(ii) kidnapping together with the offence of rape or
-sodomy against the minor under the age of 10 should be
a capital offence, as capital punishment in such cases
would act as a. deterrent.

Another replys also suggests that child-lifting should
be punishable with death.

441. Another reply'? suggests death sentence for kidnap-
ping of a child under 5 years. One of the replies" suggests
death sentence for all heinous crimes in respect of women
and children.

442. Other suggestions to punish with death the offence
of kidnapping have also been received, being suggestions
to punish with death;

(i) child lifting in the most atrocious manner";

(ii) forcible abduction of a girl or women and
rape, which results in death";
(iii) kidnapping of children with a View to black-
mail and extorting money from their parents or guard-.
ians or wreck vengeance upon their parents or elders "

443. It should be noted here, that a proposal to increase
the punishment for the offence of kidnapping, made by a'
State Government, has been received through the Ministry
of Home Affairs"; but the proposal does not contemplate

I Members of State Legislature, S. No. 243, 2443.
2 District Bar Associations, Nos. 231, 239-411.
3 Inspector General of Police of a State, S. No. 263.
4 A Judicial Oﬁicers' Association, S. No. 374.
5 8. Nos. 294, 365, 414.
6"The Indian Federation of Women Lawyers, Bombay, S. No. 121.
7 An Advocate of High Court, S. No. 92.
8. A Bar Council, S. No. 116.
9 The Bharat Sevak Samai, New Delhi, S. No. 145.
I0 An Inspector-General of Prisons, S. No. 160.
II A Lawyers' Association in Assam, S. No. 227.
12 A District Bar Association in Madras, S. No. 239.
I3 A very senior Advocate of the Bombay High Court, S. No. 318.
14 Suggestion of a State Government received through the
Home Ministry. 8. No. 569.
12-122 M of Law.



l-lomici d
by negli-
gence.

Rape.

152

the imposition of the death penalty. It suggests a penalty
of imprisonment for life and ﬁne, for kidnap ing for ran-
som. It is, therefore, outside the scope otp the present
report, and is noted here only to make the discussion
comprehensive.

444. (The State Government has drawn attention to the
increase in the incidence of kidnapping for ransom during
the years 1956 to 1964, in the State, and has stated, that
dacoits have now taken to kidnapping on a large scale,
as this is less risky, the punishment being only 7 years'
imprisonment) .

445. It has been suggested, that the offence under sec-
tion 304A, Indian Penal Code, should be made punishable
with death'.

446. A more speciﬁc suggestion regarding section 304A,
Indian Penal Code has been made by a retired High Court
Judge? The suggestion is to the effect, that there should
be death penalty (with imprisonment for life as an alter-
native and a heavy ﬁne in certain types of serious acci-
dents resulting in death where the driving is callous,
grossly negligent and in uttter disregard of human life and

safety, and that a suitable amendment in section 304A,

Indian Penal Code, may be made. The suggestion is intend-
ed to include Railway and other accidents.

It has been suggested, that under section 304A, Indian
Penal Code, when the "gross neglience" of the driver is
proved, the sentence of death must be provided fora.

447. Some replies have suggested that rape should be
made a capital offence'-5. One suggestion is that it should

be punishable with death if resulting in serious injury to
or death of the victtm"'.

448. It has been suggested', that for "murder of a
woman after having committed rape and murder of child-
ren after criminal assault on them", the death sentence
should be mandatory.

1. A District Bar Association, S. No. 125.
2. A Retired Iudge of the Bombay 1/ligh Court, S. No. 95.
3. A Member of Parliament under question 3(6), S. No. 224.

4 A Retired District Session Iudge and formerly Law Secretary to a
State Government, S. No. 139.

5. S. No. 138.
6. Bharat Sevak Samaj, New Delhi, S. No. 145.

7. A State Government, reply to ,q11esri0n 3 (12) read with reply to
questions 4 and 6 (b), S. No 58o. .



153

449. A High Court Judge has suggested that rape should
be made a capital offencel.

Suggestions to punish with death the oflence of rape
have been received in respect of----

(a) rape of girl under 13 yearsz;

(b) gang rape3;
(c) rape generally*-5-".

450. Suggestions to makeisabotage a capital offence have
been made in several replies. One suggestion7 is to the
effect, that acts of sabotage of trains, bridges and similar
installations or undertakings involving death of a large
number of persons causing widespread alarm and panic
in society and causing a sense of insecurity and loss of
conﬁdence in the basic Governmental undertakings, should
be punishable with death.

Sabotage of public utility services leading to loss of life
or property, it has been suggested, should be punishable
with death". '

451. A High Court Judge" has stated that there are
several other offences which should be punishable with
death. "One batch of oﬁences are connected with sabo-
tage, particularly of transport system, military equip-
ment and installation.

452. Other replies for making sabotage a capital offence
have also been received"-11-*2.

453. Suggestions to punish with death certain speciﬁc
types of sabotage have also been received"-14.

I A High Court Judge S. No. 262.

2 Reply of a Member of Parliament S. No. 224.

3 for gang rape S. Nos. 402 and 406.

4 A District Bar Association S. No. 223.

5 A District and Sessions Judge in Raiasthan S. No. 336.
6 S. No. 278.

7 Chief Justice of a High Court and a Judge of the High Court
agreeing with Report of Secretary Rule Committee, S. No. 143.

A State Government 8 S. No. 580.
9 A High Court Judge S. No. 251.

' IO A State Government. "Cases of sabotage in which people lose their
lives through derailment of railway trains blowing up of aircrafls, removal
of land--marks leading to marine disasters and the like". S. No. 311.

II A District Magistrate S. No. 286.
I2 District and Sessions Judges S. No. 333, 339, 3366.

13 S. No. 242 (A State Government) (in respect of the oﬂences under
section 126, Indian Railways Act, 189c---maliciously wrecking, or attempt-
ing to wreck a train).

14 District Bar Association) (Mischief by ﬁre or otherwise in respect of
national properties) S. No. 223. '

Sabotage.



Secession.

154

454. A suggestion has been made by a retired High
Court Judge', to the effect that there should be death
penalty (with an alternative of life imprisonment, as also
conﬁscation of property) for the offence of advocating and
actively Working for by violent means the secession of a
State or part of a State from the Union of India. The sug-
gestion emphasises that this should be done by an amend-
ment of the Penal Code. (In this connection; it would be
appropriate to refer to a recent Act2, which punishes any
person who questions the territorial integrity or frontiers
of India in a manner which is, or is likely to be, prejudicial
to the interest of the safety or security of India. The
punishment is imprisonment for three years or ﬁne or
both).

455. [By the Constitution (Sixteenth Amendment) Act,
1963, clauses (2), (3) and (4) of article 19 of the Constitu-
tion have been amended. Reasonable restrictions can now
be imposed on the freedom of speech and exprssion, free-
dom of assembly and freedom of movement, in the interest
of the sovereignty and integrity of India. These amend-
ments were the result of the recommendation of the
National Integration Committee to amend article 19 so as
to make it possible for the State to impose restrictions for
preventing activities designed to have further disintegra-
tion of the country, and were considered to be necessary,
because the wording of article 19(2), etc., (as it stood in
1963), did not cover a power designed to curb activities
which sought to challenge the sovereignty and integrity of
India, as some parties had sought to do]~'*-4.

456. (The object of the amendment was to empower the
State to impose restrictions on the activities of individuals
and organizations who wanted to make secession from India
or disintegration of India as political issues for the purpose
of ﬁghting e1ections)5.

Other suggestions to make the offence of preaching or
advocating secession a capital one have also been received".

I A retired Judge of the Bombay High Court, S. No. 95.
2 Criminal Law Amendment Act, 1961 (23 of I961), section 2.

3 Speech of Shri A. K. Sen, then Minister of Law, Lok Sabha Debates_
2nd May, 1963, Cols. 13409, 134:0.

4 Speech of Shri A. K. Sen, then Minister of Law, Lok Sabha Debates
2nd May, 1963, Col. 13410.

_5 See--(t') Statement of Objects and Reasons, Gazette of India, Extra-
ordinary, Part II, section 3, dated 2Ist January, 1963.

(i2) Speech of Shri A. K. Sen, then Minister of Law in the Lok Sabha,
on 22nd January, 1963, cols. 7560 and 7561. '-

6 A City Civil and Sessions Judge, S. No. 380.



155

457. Smuggling on a mass scale or by international Smuggling.
gangs has been suggested as suitable for capital punish-
ment'.

Other suggestions to punish the offence of smuggling
with death have also been receiveda.

458. It has been suggested in certain replies3 that T'°°s°"'
treason should be made a capital offence.

Amongst those who have suggested the imposition of
the death penalty for treason are certain Members of Par-
1iament4-5-"_

459. One suggestion7 is to the effect that offences con- $i'{lS:';°h'
nected with removal of untoudhability, like restricting '
members of the "untouchable" classes from drawing water
from wells, or not selling foodstuffs to them, or debarring
them from using public land or other places, should be
made capital.

A High Court Judge" has stated, that the question of
death sentence for gross anti-national and anti-social
offences be considered.

Other suggestions to punish with death the offence of
treason have also been received''.

We may also quote the reply of the Member of a State
Legislature1°.'

"Any person who indulges in the nefarious acti-
vity of selling away the honour and self-respect of his
motherland for the matter of bits of gold, silver and
paper currency to personally beneﬁt himself, causing
a serious injury to the freedom and integrity of the
country should be made to answer a charge of capital
punishment. Similarly, anybody who is so irrespon-
sible and unscrupulous as to tear off the national ﬂag
or spit on it and who internationally insults the nation
as a whole through his contemptuous behaviour against
the national ﬂag, should also be called up to answer
a charge for capital pur.'ishment.".

x A Barrister-at-Law, Calcutta, S. No. 150.

2 An Advocate in Bihar, Smuggling of goods to enemy {countries
S. No. 321.

3 S. No. I27.

4 A Deputy Minister in the Union, S. No. 210.

5 Dewan Chaman Lal, Member'; Raiya Sabha, S. No. 206.
6 A Member, Rajya Sabha, S. No. 207.

7 An Advocate, S. No. 152.

8 A High Court Judge, S. Nos. 262.

9 A District and Sessions Judge in Gujarat S. Nr. 387.
10 Member of a State Legislature under, question 3(5).



Other
oﬁences.

Other
oﬁences
whether to
be made
capital.

Adulteration-

Armed
Forces.

156

460. Certain other offences have also been suggested as
offences for which capital punishment would be suitable.
One suggestion' mentions offences under sections 195 to
200, Indian Penal Code.

461. Another reply' states oﬁences of cheating, mis-
appropriation, criminal" breach of trust, offences against
currency, bribery, etc., assume the nature of "White collar"
crimes, and so is the case With adulteration of food, and
that these acts corrupt the morale of the public "Which
naturally is the breeding place for murderers or petty
thieves who are merely scapegoats of society", and that
such criminals should be eliminated.

TOPIC No. 30.
Other ojj'ences--whether to be made capital

462. We may now consider the question Whether any
other offences under the Indian Penal Code or any other
law should be made capital. We shall consider only those
oﬁences in respect of which such a suggestion has been
made in thereplies received to our question?' on the sub-
ject. Mainly, the offences covered .:in those suggestions
are---adulteration of food and drugs, offences against the
Army; arson, espionage, kidnapping 'and abduction, homi-
cide by negligence, rape, sabotage, smuggling and treason.

463. So far as adulteration of food and drugs is con
Cerned, it is true that such offences endanger the lives of
numerous persons. We are not, however, satisﬁed that
strict enforcement of the existing law would not be enough
to check serious offences of adulteration. We may also
point out, that adulteration has several aspects-

(1) Adulteration may fall under sections 299 and
300, Indian Penal Code, if death is caused thereby, and
if the conditions of those sections (particularly as to
mens rea) are satisﬁed.

(2) {If death is not caused, then to regard adultera-
tion as a capital offence Would not be in symmetry
with the scheme of the Indian Penal Code. It may be
noted, that a person throwing a bomb into a crowd is
not punished with death, if none is killed. He may
be guilty of an attempt to murder, but not of murder.

464. Regarding offences against the law relating to
Armed Forces, we think that, so far as civilians are con-
cerned, the existing provision in section 132 of the Indian
Penal Code is adequate for ordinary situations. If, in cir-
cumstances requiring special provisions, need for imposing

I. A pleader, S. No. 2o8.
2 An Advocate, S. No. 149.
3 Quﬁstion 3(5) of Our Questionnaire.



157

any drastic penalties is felt, suitable action could be taken
for the duration of the particular situation.

465. The offence of arson is one offence in respect of Arson-
which suggestions have beer; received to make it a capital
one. At present, there are provisions in the Indian Penal
Code, sections 425 to 440, dealing with various forms of
the offence known as "mischief" and these comprise certain
provisions deaiing particuiarly with mischief by fire or ex-
plosive substance,-----sections 435 to 438; but the emphasis
in all these provisions is on damage to property and not
on the loss or possible loss of human life. Where arson act-
ually ca/uses death, the case can be dealt with under
sections 299 and 300, Indian Penal Code. What remains is
the case of arson not causing' death, and we have to con-
sider whether such arson should be visited with death
penalty on the ground that one or more lives are put in
danger by the act constituting the arson?-2.

466. In certain countries3, arson, wilful inundation, Arsop under
st-Jzotiage, and dynamiting causing death, fall under the Eggmh
category of capital offences. In "ngiand, arson is dealt '
with as follows:---

(i) At common law, wilfully and maliciously
burning the dwelling house of another is a felony, and
the ppnishment for such arson" is imprisonment for
not more than seven years'.

(ii) By statute, certain speciﬁc kinds of arson are
punishable in England with ixnprisonment for life or
a shorter terms'?

(iii) Setting fire to the Queen's ships or arsenals
or dockyards, or aircraft factories and other buildings
and military, etc. stores is a felony punishable with
death". But, there again, the offence is treated as a
grave one because of its effect on security and the
damage to property, and is a species of "malicious
damage to property".

467. So far as explosives are concerned, there are speci- "Sf". '73'
ﬁc provisions in the Indian statutes on the subject, which exp "W55
(i) regulate the manufacture, possession, use, etc, of ex-
plosives", and also (ii) punish persons who unlawfully and

I See also Analysis of case--Iaw, case No. I4.
2 See also section 39, inustration, Indian Penal Code.
3 See U. N. Publication, Capital Punishment (1962), Table of Capital

'Offences at the end.

4 Haisbury, 3rd Edn. Vol. IO, page 876, paragraph I698.

5 Malicious Damage Act, 1861 (24 and 25 Vict., c. 97).

6 Dockyards, em, Protection Act, x772 (12 Geo. 3, c. 24).

7 See Archbold, Criminal Pieadings, etc., (1962), paragraph 2272.

8 It is so treated in Haisbury, 3rd Edn., Vol. 10, page 874,
et seq.

9 Indian Explosives 'Act, 1884 (4 of I884).



158

maliciously cause, by any explosive substance, an explosion
likely to endanger life or likely to cause serious injury to
property, irrespective of whether an injury to person or
property has been actually caused or not. The punishment
in the latter case can extend up to imprisonment for life'-3.

468. We may also refer to the Bengal Amendment to
the Explosive Substances Act.3, Sections 5A and 5B (as
inserted in that Act by the Bengal Amendment) run as
follows:--

Bcngal Act "5A. Enhanced punishment for all oﬁences under

12 of r932. sections 3, 4 and 5 in certain cases. Notwithstanding
anything contained in section 3, section 4, or section 5,
if an offence under any of these sections is tried by
Commissioners appointed under the Bengal Criminal
Law Amendment Act, 1925" or by a Special Magistrate
under the Bengal Suppression of Terrorist Outrages
Act, 1932 any person found guilty of such offence shall
be punished with transportation for life or any shorter
term, to which ﬁne may be added, or with imprison-
ment for a term which map extend to fourteen years,
to which ﬁne may be added."

"5B. Enhanced punishment in certain cases. Not-
withstanding anything contained in this Act, any
person who makes or has in his possession any explo-
sive substance under circumstances indicating that he
intended that such explosive substance should be used
for the commission of any offence of murder shall, if
he is tried by Commissioners appointed under the
Bengal Criminal Law Amendment Act, 1925, be
punished with death, or with transportation for life or
any shorter term, to which ﬁne may be added, or with
imprisonment for a term which may extend to fourteen
years, to which ﬁne may be added.".

469. Where there is a deliberate intention to cause death
by arson or explosives, but the object of causing death is
not Successful, the offence would be an attempt to murder.
This is separately dealt with in the Indian Penal Code?
The English law also does not provide for the punishment
of death in such cases, as wduldbe apparent from the sta-
tutory provisions dealing with attempt to murder."

I Explosives Substances Act, 1908 (6 of 1908), sections 3 and 4.

2 Section 5(2)(b), Defence of India Act, 1962 (52 of 1962) punishes with
death, inter alia, any person who contravenes, in a notiﬁed area, a notiﬁed
provision of or a notiﬁed rule under the Arms Act, 1959, the Indian Explo-
sives Act, 1884, the Explosive Substances Act, 1908, or the Inﬂammable
Substances Act, 1952.

3 Explosive Substances Act (6 of 1908), as amended by Bengal Acts 21
of 1932 and 7 of 1934, z'.e., the Bengal Criminal Laws (Anns and Explosives)
Act, 1932, and th3 Bengal Criminal-Law Amendment Act, 1934. p

4 No number was given to the 1925 Act. It was made by the
Governor of Bengal (under section 72E, Government of India Act)'
See West Bengal Code, (I964 Edn.), Vol. 4, page 739.

5 Section 307, Indian Penal Code.

6 Sections 11 to 15, Oﬂenccs against the Person Act, 186: (24 and 25
Vic. c. 100); Russell on Crime, (1964). Vol. 1, page 615.



159

470. It may also be noted, that by a Bengal amendment'
to the Indian Arms Act, 1878, an enhanced punishment was

provided for certain offences relating to arms, in these
erms:--

"20A. Notwithstanding anything contained in this Enhanced'
Act, whoever goes armed with a pistol, revolver, riﬂe punisment
or other ﬁre-arm in contravention of the provisions of inI°°r'35n
Sectlon 13, or has any such ﬁre-arm in his possession or °"°'-

under his control in contravention of the provisions of
section 14 or section 15, under circumstances indicating
that he intended that such ﬁre-arm should be used for
the commission of any offence of murder shall, if he is
tried by Commissioners appointed under the Bengal
Criminal Law Amendment Act, 1925, be punished with
death, or with transportation for life or any shorter
term or with imprisonment for a term which may ex-
tend to fourteen years, to which ﬁne may be added."

471. We do not think that the sentence of death should
be provided for arson (except, of course, where the case

falls under one or other of the four clauses of section 300,
Indian Penal Code).

seen?

473. The offence of espionage should, it has been sug-
gested, be made a capital one.» It may be noted, that where
espionage consists of acts which constitute an abetment of
the waging of war against the State, the offence would be
amply covered by section 121 of the Indian Penal Code,
which allows the penalty of death. Other cases of collec-
tion and transmission of State secrets mostly fall under the
Official Secrets Act" section 3(1) of which provides the
maximum punishment of imprisonment up to 14 years.

In times of emergency, additional provisions are made by
special legislation.'

474. Thus under section 5(4) of the Official Secrets Act,
1923, as amended by Defence of India Act,5 a person guilty
of an offence under section 5 of the Official Secrets Act
shall, if such offence is committed with intent to wage war'
or to assist any country committing external aggression
against India, be punishable with death, or imprisonment'
for life or imprisonment upto ten years etc."-7

I Section 20A, inserted in the Indian Arms Act, 1878(I1 of 1878);.
Bengal Criminal Law Amendment Act. 1934 (7 of 1934); West Bengal"
Code (1964); Vol. 4, page 598.

2 See discussion as to hoarding and proﬁtccring;
infra.

3 The Oﬂicial Secrets Act, 1923 (19 of I923).

4 See the Defence of India Act, I962.

5 See section 6(1)(b), Defence of India Act, 1962 (51 of 1962).

6 See also rule 34(6), rule 38(1)(a) and (b), rule 38(5), rule 39(1)(a) aid'!
rule 39(2), Defence of India Rules, I962.

7 See also discussion relating to "treason", paragraph 532 et seq.

paragraph 476

472. As to black marketing, separate discusion may be Black

marketing. -

Espionage..-



Espionag
in other
countries.

Hoarding
and proﬁ-
te ering.

Kidnapping
and abduc-
tion.

160

We think that the provisions of the law on the subject
as they €.'I1'2.S't now, are, 1n substance, adequate.

475. in some countries, spying (disclosure of national
defence secrets) is a capital offence} These are China
(Taiwan), Dahomey, Spain, some States of U.S.A., Francef
Greeceglran, Luxembourg (Abolitionist de facto), Poland,
United Arab Republic, Central African Republic, South
Africa, El Salvador, Somalia (Northern), Czechoslovakia,
Togo, Turkey, U.S.S.R. and Yugoslavia.

476. We have considered the question whether hoarding
and proﬁteering should be made capital offences. Without
a detailed study of the Working of the relevant Acts and
of the difficulties felt in their enforcement by reason of the
existing penal provisions, and in 'the absence of speciﬁc
proposals of a precise nature, we do not consider it safe t0
make a recommendation in this respect. The cardial prin-
ciple of wilful disregard of human life, which is the founda-
tion of the sentence of death for the existing Capital
offencesf will have to be borne in mind, and the question
examined whether the existing law is not adequate. If it is
found to be inadequate, then before embarking on an
amendment, it will have to be considered Whether a precise
formula could be evolved which, while conforming to this
principle, can deﬁne clearly the scope of the acts of hoard-
ing or proﬁtering that are to be made capital."

477. We have also considered the question whether kid-
napping and abduction of children, particularly when the
kidnapping is with the object of maiming, should be made
a capital offence. So far as kidnapping generally is con-
cerned, there is one difﬁculty if the offence is made a
capital one. The offender would (if the 'offence is punish-
able with death) have a temptation to take the life of the
victim, because by doing so, he would not get a higher
punishments" So far as kidnapping for maiméng is con-
cerned, this difficulty may not be there. But we do not
think that the social harm caused by kidnapping for
maiming approaches, in gravity that caused by murder.
We are'not, therefore. inclined to make the suggested
change.

I See U.N. Publication on Capital Punsihment (I962), Table at

the end.

2 Provisions of the French Penal Code are of particular interest.

3 See discussion relating to existing capital offences; paragraph 77-80
supra. - '

4 From the U.N. Publication on Capital Punishment (1962), Table at
the end ,it would appear, that aggravated hoarding and unlawful raising of

prices, etc., are capital offences in China (Taiwan), Spain, Republic of Viet-
nam, and Czechoslavakia.

5 The point is discussed in detail in the discussion relating to rape
paragraph 522, infra.



161

478. In the State of Ohio (U.S.A.), legislation' making
kidnapping a capital offence was introduced and enacted

after the kidnapping and subsequent death of a boy?'-".

479. Kidnapping is a capital offence in certain countries,
and these seem to fall under three groups-
(i) kidnapping simply;
(ii)kidnapping accompanied with aggravating cir-
cumstances (e.g., kidnapping for ransom); and
(iii) kidnapping followed by death.

480. After the kidnapping and murder in New Jersey in
1932 of the child of Charles A and Anne Morrow Lindbergf'
State Legislatures in the U.S.A. expanded the deﬁnition of
kidnapping, and many States made it a capital oifence. At
the same time, it was made a federal offence to transport
the victim or a kidnapping across a State boundary, with
a maximum penalty of death5-6.

The following table shows the representative penalties
for kidnapping in the States of U.S.A.'.

TABLE V

Representative Penalties for kidnapping

(in U.S.A.)
Jurisdiction Category Minimum Maximum
penalty penalty
California . (1') Simple I year 25 years

(it) Ransom, re- Life, with 'possi- Life with possibi-
ward or robbery bility of parole. lity of parole.
--victim unhar-
med

(iii) Ransom, etc.- L'ife, without pos- Death
victim harmed sibility of parole.

1 It is popularly known as the Baby Lindbergh Act.

2 See the statement of Mr. Michael Disalle, Governor of Ohio,
dated 10th February, 1959, reproduced in McClellan, Capital Punish-
ment, (I96I), pages 108-109. '

3 Kidnapping a minor is also a federal capital oﬂ"_ence in U.S.A., in cases
where the federal Code applies. See U.N. Publication, page 38, paragraph
120, as to the position in Various countries.

4 State v. Hauptmann (1935) 115 N.J.L. 4x2, 180 Atl. 809 (Hauptmann
was convicted and executed for murder in course of burglary of the child's
sleeping suit, under felony-murder rule).

5 (1958) 18 U.S.C. 1201.

6 See also Fisher and McGuire, "Kidnapping and the So-called Lind
bergh Law" (1935) 12 N.Y.L.Q. Rev. 646.

7 Adapted from Rex A. Collings Jr. "Offences of Violence Against the

Person" (1962_ Jan.) Vol. 339 "Annals of the American Academy OfPc1;'{jca1
and Social Sciences" pages 24, 54, Table 3.



Negligence --
homicide
by.

162

Jurisdiction Category Minimum Maximum
Penalty Pe
Delaware No categories Life Life
New York (i) Victim returned 20 years Life
above
(it) Victim dead 20 years Death
Wisconsin (2) Simple None 15 years
(ii) Ransom--vic- None 30 years
tim released with-
out permanent in-
Jury
(iii) Ransom-- Life Life

other

481. The question of homicide by rash or negligent act
crops up from time to time. When A is guilty of rashness
or negligence, and, by the conduct of A, the death of B is
caused (without an intention to kill), the criminal liability"
of A may vary according to his knowledge and the nature
of the act. Assuming that there is no intention to cause
death} the answer to the question of the criminal liability
of A would depend on the nature of the injury caused and
the degree of intention or knowledge of the offender. The'
matter would be clear from the following chart.

Chart of negligent acts? aﬁecting the human body

Degree of knowledge, etc. Offence

Knowledge that the act is so immi-
nently dangerous that it must in all
probability cause death, or injury
suﬂicient in the ordinary course of
nature to cause death.

Murder (section 300, clause 4).

Culpable homicide not amounting to

Knowledge that the act was Iikebz to
' murder (Section 299, last clause).

cause death or injury suﬂicient in
the ordinary course of nature to
cause death. '

I Cases of intention to cause death would fall under the ﬁrst clause
of section 3.00, Indian Penal Code.

2 The sections referred to are those of the Indian Penal Code.



163

Degree of knowledge, etc. _ Offence

Rash or negligent act causing death Offence of causing death by negli-
buit not amounting to culpable homi- gence (section 304A).
Cl 9.

/

Knowledge that the Act might pos- Hurt or grievous hurt.'

sibly, but was unlikely to, cause
death or injury sufﬁcient in the
ordinary course of nature to cause
death.

482. "Hurt" can be further ana1ysed:--

Voluntarily causing grievous hurt Sections 322 and 325.
(grievous hurt may not be intended,
but only known to be likely, etc.)

Voluntarily causing hurt (hurt may Sections 321 and 323 and 325.
not be intended, but only known to
be likely, etc.)

1

Causing grievous hurt by act endang- Offence under section 338.
ering life etc. (whether or not
grievous hurt intended or known to
be likely etc.)
Causing;-lurt by act endangering life Offence Under section 337.
etc., whether or not hurt intended
or known to be likely, etc.)

Doing any act so rashly or negligently Offence under section 336.
as to endanger human life or the
personal safety of others (No hurt
need be caused).

NOTE :--The expression of 'voluntarily', as deﬁned in section 39, Indian
Penal Code includes cases of causing an eﬂect by employing means
known to be likely to cause that effect, and this deﬁnition has to be
read in the sections dealing with 'voluntarily' causing hurt, or
grievous hurt, etc. (sections 321 and 322), and their aggravated
forms, particularly sections 323, 324, 325 and 326.

483. Clause 4 of section 300 is the main provision to be
discussed in detail. The relevant portion of section 300
runs as follows:--

"300. Except  culpable homicide is murder if
the act by which the death is caused is done,. . ..
4th1y, If the person committing the act knows
that it is so imminently dangerous that it must, in
all probability, cause death, or such bodily injury

' as is likely to cause death, and commits such act

without any excuse for incurring the risk of caus-
ing death or such injury as aforesaid".
Illustration (d) to the section, which is relevant to this
clause, runs as fol1ows:---- '
"A, without any excuse, ﬁres a loaded cannon into
a crowd of persons and kills one of them. A is guilty
of murder, although he may not have had a premeditat-
ed design to kill any particular individual".

See for details as to "hurt", etc. paragraph 482, infra.



164

The clause thus, stresses several elements----

(i) knowledge that the act is so imminently dan-
gerous, that (ii) it must, in all probability, cause death,
etc., and, further, requires that (iii) there must be
absence of an excuse for incurring the risk of causing
death, etc. Extreme recklessness by itself is not sulﬁ-
cient. It must be a "wholly inexcusable act of reck-
lessness."1

484. We do not think that there is any substantial defect
in the law. The test adopted is one of disregard of human
life. We cannot abandon that test and make a lesser
offence, a capital one.

We appreciate the feeling that cases of negligence, par-
ticularly rash and negligent driving, should be dealt with.
severely. Whatever steps are needed to avoid danger to
human life by such acts have to be taken. But the provi-
sions of the Indian Penal Code, so far as offences attracting
the sentence of death are concerned, do not seem to need a
radical change on this point.

485. We would point out, that a really heinous case of
causing death by negligence (including rash or negligent
driving), would fall under the 4th clause of section 300,
Indian Penal Code, provided there is no excuse for that par-
ticular act. The matter depends upon the degree of know-
ledge of the offender and the nature of the act.

486. Under section 304A, Indian Penal Code, several.'
cases of negligence by Railway Ofﬁcers have come up be-
fore the Courts, as also cases of rash driving on the Rail-
ways?' Rash driving generally, or negligencein relation
to vehicles has also ﬁgured?-4-5 The undermentioned case
may be seen regarding fast driving."

487. We have discussed this matter somewhat in detail,
in view of the suggestions received to make offences under
section 304A, Indian Penal Code, punishable with death."

488. It has been suggested," that serious accidents, which'
result in death, where the driving is callous, grossly negli-

I See observations of Plowden J. in Barktulla, (I887) P.R. No. 32'
of I887, page 64.

. 2) Tapti Prasad v. Emp. A.I.R., 1918 All. 429 (Line clear wrongly
given.

3Kaku v. Emp., A.I.R., I92! Lab. 297 (Child hurt by accident).

24 em Emp. v. Bhutan, (I894), I.L.R. 16 All. 472 (Boat which was un-
sound used by lessee of ferry--25 persons drowned).

5King Emperor v. Abdul Qayum (I940) I.L.R., 21 Lab. 646 (driving when-
visibility very low).

6 Garden Singh v. Emp., A.I.R. 1941 Lab. 459, 460.
7 Reply of a District Bar Association, S. No. I25.
8 Reply of a retired High Court Judge, S. No. 95, under question 3 (b)-



165

gent and in utter disregard of human life and safety,
deserve the highest penalty of the law. But, according to
our view, this is already permissible under section 300; if
the conditions of section 299 or section 300 are satisﬁed, the
case would not fall under section 304A. Indeed, section
304A makes this clear by the words "not amounting to
culpable homicide".

489. If the act or omission--albeit unintentional----is so
imminently dangerous that it must in all probability cause
death, the charge of murder can be brought home to the
accused. This can be illustrated by a snake-bite case} in
which the accused actually caused the snake to bite the
person who was killed.

490. If the knowledge is of "likelihood" of death, the
case would fall under section 299. Thus, where a snake-
charmer exhibited in public a venomous snake and to show
his skill, put the snake on the head. of a spectator, who tried
to push off the snake, was bitten and died, the accused was
held to be guilty under section 299.2

Illustrations can also be drawn from cases of woman
jumping into well with a child. In such cases, the question
whether there was an "excuse" Within the meaning of sec-
tion 300, fourth clause, Indian Penal Code, becomes mate-
rial.3-' Cases of women administering dhatura, etc., to hus-
bands5 may also be referred to in this connection. '

As has been observed," the real question which arises in.

such cases is whether the act was done with the knowledge
that it was likely to cause death or that it was so immi-

nently dangerous that it must in all probability cause
death. ' '

Often the facts do not fall within section 299 or section
300; and no arnendment of the law can amend the facts
By way of illustration, we may refer to a case which seems

to fall on the border line.7 In that case, the accused was»

driving a lorry on the Grand Trunk Road from Delhi in
the direction of Panipat. He had ﬁve more passengers than
he was permitted to carry. He was signalled by a Sub-

Inspector of Police to stop, so that the lorry might be \

checked. But, in order to escape, he refused to stop and
drove on. The Sub-Inspector, with his constables, proceed-

1 Queen v. Poonai Faztemah, I2 W.R. Cr. 7.
2 Emp. v. Ganesh Dooley, (1879), I.L.R. 5 Cal. 351, 352.

3 Cf. the cases discussed in Gyarsi bat' v. The State, A.I.R. 1953 M. B
61, 63.

4 Emp. v. Dhiralia, I.L.R. 1940 All. 647 ; A.I.R. I940 A11. 486.
5 Emp. v. Chatterpal Singh, A.I.R. I930 Oudh, 502.

6 Cf. Nga Ba Tu v. Emp. A.I.R. I921 Lower Burma 26, 27 (Heald
L).

7 Gurdev Singh v. Emp., A.I.R I941 Lab. 459, 460 (Young C. J. and-1
e . .

Sal J)



166

cd in a motor car "to chase the lorry". The chase proceed
ed for ﬁve miles but the accused refused to allow the police
car to pass his lorry, by driving his lorry in front of the
police car, or by driving it on the side of the road and
raising dust. Most of the time the speed was between 50
and 55 miles per hour. When the lorry came near a bridge,
a small girl, who was standing on the side of the road,
commenced to cross the road in order to get to her father
who was washing clothes on the opposite side of the road.
The accused was going so fast that he could not stop. The
child also added to the trouble by starting to run across
the road. The result was, that the unfortunate child was
hit by the bumper of the lorry, and was knocked down and
killed. The accused was ultimately arrested at Panipat.

The accused was convicted by the Sessions Judge under

section 302, Indian Penal Code on the ground that the accus-
ed knew that the act he was committing was so immi-
nently dangerous that it must in an probability cause
death. Counsel for the Crown did, nOt support this conten-
tion, but argued that the conviction ought to be under sec-
tion 304, Indian Penal Code, as the accused knew that he
was likely by his act to cause death. The High Court,
however, did not consider that the offence came either
under section 304 or under section 302. In its view, the
-offence fell under section 304A. In coming to this conclu-
sion, the High Court emphasised two facts, namely, first,
that the child who was killed came from the side o'f the
road and attempted to cross in front of the lorry, and
»secondly, that it was not a crowded place like a city----in
which case the offence might result in a charge under sec-
tion 304, or even under section 302. The High Court sen-
tenced the accused to rigorous imprisonment for 18 months
under section 304A, Indian Penal Code.

491. An instructive analysis of the words "with the
knowledge that he is likely by such act" used in section

299, Indian Penal Code has been made by Peacock C.J. in
-the underrnentioned case.' '

492. If the ingredients of section 300 are satisﬁed, it
becomes the highest degree of homicide. But otherwise it
-will constitute only the lowest degree of culpable homicide
-----sectiou 304, second paragraph, whereunder _one of the
possible Plinishments is fine only. It is, therefore, obvious
that great care is required in cases where"'know1edge"
constitutes the only mens rea, and the provisions of sections
299, 300, and 304A fall to be considered.

If, even the conditions of section 299, Indian Penal Code,
are not satisfied, i..e., if knowledge of the likelihood of
death cannot be proved, then it remains a case of section
304A. Thus, the evaluation of the evidence, the drawing

I Gorachand Gopee, (1866) 5 W.R. (Criminal) 45 ;Bengal Law Reports,
i.(Supp1'ementary Volume), 443, 45x (Full Bench).



167

of factual inferences, and the application of the law, in
such cases, becomes a matter of the greatest importance,
The act may even be no offence}

493. Most cases under section 304A, Indian Penal Code,
would, in England, fall under "man-slaughter." The
i_'naxi_murn punishment for manslaughter in England is
imprisonment for l1ie.3

494. Cases are not infrequent where a conviction under
section 302 has been altered to one under section 304A.'

495. For certain interesting points relating to the ques-
tion of liabilty under section 304A, Indian Penal Code, the
undermentioned decisions5-''--7-3-9-'°-- 11-1933 may be seen_

496. As to section 101, Railways Act, the underrnentioned
Supreme Court case" may be seen.

We shouldalso state here, that every case of rash or
neghgent driving may not be necessarily heinous. In this
connection, we should like to quote the following observa-
tions of Beamont, C.J., in at Bombay case'5----

' . . . . . . ..Then the learned Magistrate says that
there was "extremely rash and callous conduct of the
accused causing the accident without the least justi-
fication." If I took that view of the accused's conduct,
I should certainly be in favour of enhancing the sen-
tence. I think that in all these cases one has to con-
sider whether the rash and negligent act of the accused
which has occasioned the death, shows callousness on

I Cf. Nagawa Bhimappa, (I902) I.L.R. 4 Born. L.R.~425 (Poisonous
substance administered as charm----no knowledge of poison-held no
offence).

2 Cf. Sukaroo Kabiraj v. Emp., (1887) I.L.R. I4 Cal. 566, 569.

3 Offences against the Person Act, 1761 , section 5, as amended by
the Criminal Justice Act, 1948.

4 See Pika Rewa v. Emp. (I912) I.L.R. 43 Cal. 855, 861.

5 State v. Banshi Singh, A.I.R. I960 Madh. Pradesh 105, (section 304A,
Indian Penal Code and section IOI, Railways Act, considered).

6 Emp. v.I<'1zan Mohammad Sher Mohammad, A.I.R. 1937 Born. 96,
98 (Beaumont C. J. and Wasoodew J.).

7 Emp. v, Marshall, A.I.R. 1937 Born. 80, (Bcaum0nt CJ. and Wasoodew
J).

8 Parthasarazhy, in re., A.I.R. I959 Madras 497, referring to H. W.

Smith v. Emperor, I.L.R. 53 Cal. 333 S and Ganesan, in re., A.I.R. 1950
Mad. 71.

9 State of Mtysore v. BamtraKunj:'ana, A.I.R. 1960 Mys. 177.

10 State of M. P. v. Ranjz'tKumar, A.I.R. 1959 M.P. 284.

II Sahadevan, in re., A.I.R. 1955 Mad. 548.

12 Pirabash Panda v. State, A.I.R. I961 Orissa. 45.

13 Emp. v. Shahu, A.I.R. I917, Sind. 42 (I). L .
I4 Awadh Behari v. State of M, P., A.I.R. I956 S.C. 2738. .

15 Empenr v. Khan Mohammad Sher Mohammad, 'A.I.R. 1957 Bom.
96, 98 (Beaumont C. 1.). I

I-*13----122 M of Law



168

his part as regards the risk to which he was exposing
other persons. 1 think the severity of the sentence
must depend to a great extent on the degree of callous-
ness which is present in the conduct of the accused.
Here I do not think there was any callous conduct. As
I said before, the accused committed an error of judg-
ment, but, having done so, he did his best to avoid the

consequences of his error. The learned Magistrate's

third ground is that-

Accidents of this nature are of frequent occur-
rence, and in the interest of administration of

justice and protection and safety of human life,.

such offences require to be sternly dealt with.

'I do not agree with that principle. One has to-

remember that driving motor cars has become an
essential part of human activities, and it is impossible
to avoid a certain number of accidents. In my view
it is no part of the duty of Courts to punish with
savage sentences every motorist who has the misfor-
tune to have an accident, which results in a loss of
life, even though the accident be due to an error of
judgment on the part of the driver. The circumstances
of each case must be considered in imposing sentence.'.

497. A moment's inattention should not attract the death
penalty. Reference may be made, in this connection, to
the observations made by an English Judge with reference
to prosecutions under section 1, Road Traffic Act, 1960.
Stevenson J. said': "It is terribly important that these cases
should be most carefully scrutinised before they are start-
ed, and that people should not take the view that merely
because of death there should be a prosecution".

498. Every case where a risk of life is involved is not
one of rashness. "A surgeon is not reckless in performing
an operation merely for the reason that he knows it very
likely to be fatal; it may afford the patient's only chance."

499. We may refer in this connection to two cases decid-
ed in England by Streatﬁeld J. in November, 1964. He had
to consider the sentence to be passed on the accused per-
sons who had pleaded guilty at the Sufflok Assizes to caus-
ing death by dangerous driving. In one case, the court
merely ﬁned the accused £50 and banned her for driving
for ﬁve years; and in other case, the court ﬁned the accus-
ed £ 50 but did not disqualify him for driving, as that
would have led to very serious consequences for him. In
the first case, a young woman who had no driving licence,
asked the man who gave her a lift for permission to drive

1 Stevenson ].'s view reported in the Times, July 12, 1961, cited in I963
26 Modern Law Review 432.

2 Herbert Wechsler, " On Culpability and Crime", in (January, 1962)
Vol. 339, Annals of the American Academy of Roliticd and Social Sciences
24, 29.



English law
relating to
homicide by
negligence.

Murd er.

Manslaugh-
tCX'.

Malice
aforethought.

lﬂ

his Mark 10 Jaguar car. He allowed her to do so, and
while rounding a bend on the wrong side of the road, she
collided head-on with a small saloon, killing two women
passengers and seriously injuring a man. In the second
case, a man had killed a motor-cyclist by dangerous driving.
The principle on which these sentences were based was
thus explained~--"The fact that a death resulted from a
piece of dangerous driving did not make the dangerous
driving any more or less. It would be quite wrong for the
court to measure a man's culpability by the amount of

1

damage he did.".*

500. We do not, of course, rule out any improvements
or changes in matters of detail that may have to be made
in section 300, clause 4, Indian Penal Code, or in the other
sections dealing with negligent acts. If there is any hiatus
between that clause on the one hand and section 299, 3rd
clause or section 304A of the Indian Penal Code on the
other hand (in the sense that cases at present falling under
the latter sections, should really be brought under section
300), the matter can be considered. As at present advised,
we do not ﬁnd any such serious gap as to require immediate
attention.

501. It must also be remembered, that a decision whe-
ther a case of homicide by negligence falls or does not fall
under section 300, 4th clause, Indian Penal Code, is a mat-
ter of great importance. There is no intention to cause a
bodily injury, and such a case is, therefore, one only of
"knowledge". If it falls under section 300, it becomes a
capital offence. But if it does not fall under section 300,
then, it is punishable only under the second part of section
304, Indian Penal Code (whereunder the maximum punish-
ment is ten years' imprisonment).

502. We proceed to consider the English Law. At
English law, it is murder for a person of sound memory
and discretion unlawfully to kill any human creature in
being and under the Queen's peace, with malice afore-
thought either expressed or implied by law, provided the
person killed dies of the iniury inﬂicted within a year and
a day after the same.

503. Manslaughter is the unlawful killing of such a
person without malice, either express or implied".

504. The requisite mental element in the crime of mur-
der in English law is, thus, "malice aforethought". The
deﬁnition of this expression is not to be found in any
statute, and has to be drawn from the decided cases.
Malice aforethought is either expressed or implied by law.
Express malice, according to Halsbury", exists where the

1 See note in (1964) so L.Q.R. 18, 19.
2 Halsbury, 3rd lBdn., Vol. 10, page 704, paragraph 1349.
3 Halsbury, 3rd Edn., Vol. 10, page 707, paragraph 1354.



170

deliberate purpose of the accused is to deprive another of
me Or, to do some great bodily harm. Malice afore-
thought, according to Halsbury', is implied by law--~(i)
where the person killed is an olﬁcer of the law, legally
arresting or imprisoning the accused or executing other
process of law in a legal manner; (ii) where, although there
may have been some provocation, the provocation has not
been suﬂicient to reduce the oﬂfence to manslaughter; (iii)
Where the killing has been caused by the accused while
engaged in committing some other felony involving an act
of violence or an act dangerous to life?

An offence which does not fall under murder, may yet
fall under manslaughter. Brieﬂy speaking, 'Manslaughter'
is the unlawfully killing of a human creature in being and
under the Queen's peace, without malice either expressed
or implied'. More elaborately, any one is guilty of man-
slaughter, who'-----(i) unlawfully kills another upon provo-
cation of such a character as to reduce the offence from
murder to manslaughter, or (ii) who, while committing an
unlawful act or a felony, not likely to cause danger to
others, unintentionally kills another person; or (iii) who
unintentionally causes the death of another by the cul-
pable negiect of a legal duty, ' resting upon the person
causing the death'.

505. Apart from this position at common-law, we may
refer to the statutory provisions in sections 2 and 4 of the
Homicide Act, 19575. Under section 2, a person suffering
from such abnormality of mind as substantially impaired
his mental responsibility-i.e., who comes under "dimi-
nished responsibility", who would otherwise be liable for
murder (whether as a principal or accessory), is now liable
for manslaughter; and under section 4, a person acting in
pursuance of a suicide pact between himself and the
deceased (whether he himself kills the deceased or is a
party to the killings), is guilty of manslaughter and not of
murder.

506. Generally as to manslaughter by neglience, the
detailed discussion in the under-mentioned cases"-7 may be
seen.

I As to this last cgegory----Death caused while committing felony, see
Halsbury, 3rd Edn., Vol. 10. paragraph 1368.

2 This should be read subiect to the Homicide ACE 1957-

3 Halsbury, 3rd Edn., Vol. 10, paragraph 1349.

4 Halsbury, 3rd Edn., Vol. 10, page 715, paragraph 137i.

5 The Homicide Act, I957.

6 Andrew: v. D. P. P. (r937)A.C. 576 ; (1937) 2 All Eng. Reports 55:
H.L.); and see the analysis in The People v. Duniecwy, (19:18) Irish Re-
ports 95, (C.C.A. of Eire). summarised in Turner, and Armzrage. Cases 1]
Criminal Law (£964), page 3oz.

7 See also Vishoanatfz Vishnu v. The King, g\.I.R. 1948 RC. _I83, 184
(on appeal from East Afnca_~--a case under section 222, 'I_':mgany1ka Penal
Cole, corresponling to section z79--289, Indian Penal Code). .



View of
Russell and
Stephens.

171

50?. Unfortunately, cases of unintentional death which
have arisen in England have almost all been' those where
some felony was intended, and the result is that in the
books a discussion of the topic of "implied" or "construc-
tive" malice is always presented with reference to the
special situations of resistance to oﬂicers of justice or
offences constituted by acts done in the course or further-
ance of felony involving violence".

508. There have not been many cases in England where
there was no intention to cause death or bodily harm, and
yet death ensued, because of negligence (apart from cases
accompanied with the complication of "violence involving
felony" _or resistance to oﬂicers of justice).

509. It would appear that where there is no intention
to cause death or great bodily harm, then (in the absence
of a special feature, such as the victim being an officer of
the law or the accused being engaged in a felony, etc.),
there is no "malice aforethought", and, therefore, no mur-
der.

510. We shall now note the provisions of the 1957 Act.
Section 1 of the Homicide Act, 1957, runs as follows:----

"1. (1) Where a person kills another in _the course
or furtherance of some other offence, the killing shall
not amount to murder unless done with the same
-malice aforethought (express or implied) as is requir-
ed for a killing to amount to murder when not done
in the course of furtherance of another offence.

(2) For the purpose of the foregoing sub-section,
a killing done in the course or for the purpose of resist-
ing an officer of justice, or of resisting or avoiding or
preventing a lawful arrest, or of effecting or assisting
an escape or rescue from legal custody shall be treat-
ed as a killing in the course or furtherance of an
offence".

Now the question is, "What is the position resulting
from this provision of the law and the 1957 Act regarding
death caused by negligence?". =

511. The view' expressed in a leading work in Criminal
Law is, that if malice aiorethought could be deﬁned as
"foresight that death would or might be caused" then ex-
position of the law of murder would be simpliﬁed and no
change in the law itself would be involved in the majority
of cases'. This seems to be in harmony with the View of

I See the various cases summarised in Turner and Armitage, Cases in
Criminal Law (1964), pages 219 to 235 and 280 et seq.

2 This difficulty has been noticed in Russell on Crime (1964), Vol. I
pages 477, 586, 59:, 594, and conclusion at page 598.

3 See Russell on Crime (1964), Vol. I, page 467.

4 As to the Act of 1967, see Russell on Crime (1964), Vol. 1, page 593
at 5:4.



172

Stephens', and of the Royal Commission on Capital Punish-
ment". One who has shown a disregard for the life of
others, should, on this reasoning, be guilty of murder (if
he causes death).

512. Most of the deﬁnitions of manslaughter in English
law are of a negative character, for example, that man-
slaughter consists of killing another person unlawfully,
yet under conditions not so heinous as to render the act
a murder, or that the oﬁence of manslaughter includes a
felonious homicide not amounting to murder, or that it is
the unlawful and felonious killing of another without any
malice either express or implied". ,

513. It has been the practice to divide manslaughter
into two main categories, voluntary manslaughter and in-
voluntary manslaughter'. So far as homicide by negli-
gence is concerned, it is the latter category which is appli-
cable. [The former is conﬁned to cases where inten-
tional killing is reduced to manslaughter owing to provo-
cation or where special statutory provisions, such as sec-
tion 2(3) and section 4(1) of the .Homicide Act, 1957 are
applicable].

514. According to Russell5, the main thread running
through all the line of development of manslaughter is
the fact that the prisoner brought about 'a death when en-
gaged in what he realised was exposing someone's person
to the certainty or to the risk of some (but not fatal) phy-
sical harm. Therefore, if the prisoner caused the death as
the result of conducting himself in the manner whichpat
that time, he realised involved either the certainty or the
risk that a physical harm less than death would be suffer-
ed by some person, that amounts to manslaughter"-7 (in the
absence of a legal excuse or justiﬁcation).

515. It is often difficult to decide whether a case of
dangerous driving resulting in death amounts to man-
slaughter or not".

516. The expression usually used in the English cases

for denoting the mens rea requisite for manslaughter (in
this context) is "criminal negligence". But it has been

I See Atchbold (1962), paragraph 2484. '
2 See R. C. Report, pages 27-28, 'paragraph 76 (0) and contrast with
" pure accidents" dealt with in ibid, page 40, paragraph. 109.
3 See the deﬁnitions collected in Russell on Crime (1964). Vol. I, page
562.
4 See Russell on Crime, (1964), VoL I,.page 562.
5 See Russell on Crime, (1964), Vol. 1, page 598.
6 See Russell on Crime, (1964), Vol. I, page 598. ,
(P (7: )Cf. R. v. Sharmpal Singh, (1962), A.C. 188 ; (1962)>2 W.L.R. 23.8
8 Cf. Andrews v. D. P. P. (1937) A.C.' 576, 584 ;(I937) 2 All. Eng'-
Reports 552, 577 (H.L.).
9 Andrew: v. D. P. P.,»(r937) A.C. 576, 583 ; (1937) 2 A.E.R. 552,
557 (H.L.).

\



173

pointed outl, that this fails to say affirmatively what
exactly is the mens Tea in manslaughter.

517. Kenny2 has submitted that the law should be clari-
ﬁed by a statutory provision which should, in effect, settle
that it shall be the crime of involuntary manslaughter
when a man who has caused the death of another did so in
a course of conduct which, he realised, would or might
cause someone a physical harm but not a fatal harm, pro-
vided that he had no lawful justiﬁcation or excuse for
inﬂicting or risking the infliction of the physical harm
which he foresaw. The test is intended to be subjective.

518. Sometimes it may not amount to manslaughter,
but many amount to an offence under section 1 of the
Road Traﬂic Act, 1960 or section 2 of that Act.

519. Sections 1 and 2 of the Road Traﬂic Act, 1960"-4,
run as fo1lows5:--

"(1). (1) A person who causes the death of another
person by the driving of a motor vehicle on a road
recklessly, or at a speed or in a manner which is dan-
gerous to the public, having regard to all the circums-
tances of the case, including the nature, condition and
use of the road, and the amount of traffic which is
actually at the time, or which might reasonably be
expected to be, on the road, shall be liable on convic-
tion on indictment to imprisonment for a term not
exceeding ﬁve years. .

(2) An offence against this section shall not be
triable by quarter sessions; and nothing in the fore-
going sub-section shall be construed as empowering a
court in Scotland, other than the High Court of Judi-
ciary, to pass for any such offence a sentence of impri-
sonment for a term exceeding two years.".

(3) Section 20 of the Coroners (Amendment) Act,
1926 (Which makes s ecial provision where the coroner
is informed before e jury have given their verdict
that some person has been charged with e of the
offences speciﬁed in that section) shall ap ly to an
offence against this section as it applies to manslaugh-
ter.

I Kenny, Criminal Law, (1962), page 182.
2 Kenny, Criminal Law, (1962), page 184.
3 Road Traffic Act, 1960 (8 and 9 Eliz. 2 c. 16)-

4 See, generally, Gross & Jones, Introduction to Criminal Law(1962),
pages 154 and 314, 318.

5 The predecessor of section I was section 8, Road Trdﬂic Act, 1956
(I-Ialsbury, Statutes Vol.36, page 807).



174

2- (1) If a person drives a motor vehicle on a road
recklessly, or at a speed or in a manner which is
dangerous to the publicl, having regard to all the Cir-
cumstances of the case, including the nature, condition
and use of the road, and the amount of trafﬁc which
is actually at the time, or which might reasonably be
expected to be, on the road, he shall be liable-

(a) on conviction on indictment, to a ﬁne or to
imprisonment for a term not exceeding two years or
to both a ﬁne and such imprisonment;

(b) on summary conviction, to a ﬁne not exceed-
ing one hundred pounds or to imprisonment for a term
not exceeding four months or to both such ﬁne and
such imprisonment, or in the Case of a second or sub-
sequent conviction to a ﬁne not exceeding one hundred
pounds or to imprisonment for a term not exceeding

six months or to both such ﬁne and such imprison-
ment.

(2) If upon the trial of a person for an offence
against section one of this Act the jury are not satisﬁed
that his driving was the cause of the death but are
satisﬁed that he is guilty of driving as mentioned in
sub-section (1) of this section, it shall be lawful for
them to convict him of an offence under this section.

(3) Upon the trial of a person who is indicted for
manslaughter in England or Wales, or for culpable
homicide in Scotland, in connection with the driving
of a motor vehicle by him, it shall be lawful for the
jury, if they are satisﬁed that he is guilty of an oﬁence
under this section, to ﬁnd him guilty of that offence".

520. Moreover, there is one practical consideration to
be borne in mind. It is useless to. hold the p€1'S°I1 1'€SP0n'
sible where he did not foresee death, because no threat of
punishment would deter a man from doing something un-
less he was directing his mind to the matter. . ;lI'het.1aw E:
manslaughter has not changed by the Intro 11° 1011

Reckless, and
dangerous

driving
gene: ly.

motor-vehicles on the road. Death caused by their 9983' '

- - ' t 'is 120
gent driving, though 1mh3PP11Y much m°1'e frequen '

be treated in law as death caused by any Other _f°rm °f
negligence'-'. 

521, As to proﬁteering, separate discussion may be
seen'. '

i As to section 2 see R. v. Claw, (1963) 2 All E. R. 216.
2 See Andrew: v. D, P. P. (1937) A.C. 576; (I937) 2 A-E-R 552.
.L.).

3 For a comprehensive discussion, see Brett, " MI11313l18ht°1' and the
Mot0rjst5" (1943) 27 Australian Law Journal 5, 39-

4 See discussion relating to hoarding and proﬁteering, paragrah 475,
supra.

Proﬁtecting.



R399'.

175

522. A suggestion has been made by many persons that
the offence of rape should also be punishable with death.
Nobody can doubt that chastity should be as zealously
protected as life. There is, however, one important prac-
tical consideration which has to be borne in mind. If the
offence of rape is made punishable with death, the offender
will always have a temptation, after committing rape, to
put his Victim to death. We cannot, in this connection, do
better than quote the words of the authors of the Indian
Penal Codel, who made the following observations on the
subject:---

"To the great majority of mankind nothing is so.'
dear as life. And we are of opinion that to put rob-
bers. ravishers and mutilators on the same footing with
murderers is an arrangement which diminishes the
security of life . . . . ..Those offences are almost always
committed under such circumstances that the offender
has it in his power to add murder to his guilt . . . . ..
As he has almost always'. the power to murder, he will
often have a strong motive to murder, by inasmuch
as murder he may often hope to remove the only wit-
ness of the crime which he has already committed.
If the punishment of the crime which he has already
committed be exactly the same with the punishment for
murder, he will have no restraining motive. A law
which imprisons for rape and robbery, and hangs for
murder, holds out to ravishers and robbers a strong
inducement to spare the lives of thosewhom they have
injured. A law which hangs for rape and robbery,
and which also hangs for murders, holds out, indeed,
if it be rigorously carried into effect, a strong motive
to deter men from rape and robbery, but as soon as a
man has ravished or robbed, it holds out to him a
strong motive to follow up his crime with a murder."

523. We may also mention here that the offence of rape
was previously punishable with death in Canada, but in
the new Criminal Code of Canada, as revised in 1954, the
punishment is only imprisonment for life and whipping'.
This deletion has been approved in the Report of the Joint
Committee of the Senate; and of the House of Commons
on Capital Punishment in, Canada'.

524. In England', raperwas, at ﬁrst, a felony punishable
"by death. The Statute which made it a capital offence in
the beginning, was the Statute of 1576, 18 Elizabeth C. 7,

1 Draft Penal Code, Note A, page 93.
2 Section 136, Criminal Code of Canada.

3 Report of the Joint Committee of the Senate and the House of
Commons on Capital Punishment, 27th June, 1956, page 16, paragraph 64.

4 See Radzinowicz, History of English Criminal Law (1948), Vol.
page 631. foot--note 2. .;



176

under which a person feloniously committing rape or un.
lawfully and carnally knowing and abusing any woman.
child under the age of 10 had to suffer death. By later
Statutes, the same punishment was prescribed for sodomy
and for the crime against nature. Later, the offence was
reduced to great mis-demeanour punishable with loss of
eyes and castration. Subsequently, by the Statute of
Westminister 1, C. 13, it was reduced to trespass (punish-
able with imprisonment up to 2 years and ﬁne). But the
Statute of Westminister 2, C. 34, again declared it to be a

felony.

525. The evolution of the doctrine of constructive malice
in connection with felonious acts', however, made a differ-
ence in England where death resulted from a rape or
attempted rape. This was on the principle that an act of
violence done in the course of or in the furtherance of a
felony involving violence, if it led to the death of the
victim, amounted to murder, even if there was no intention

to kill'-'-''.

526. This artiﬁcial concept of constructive malice has
now been abolished by the Homicide Act". The present
position in England "is that rape is a felony punishable
with imprisonment for life5. '

527. It would appear5 that simple rape is a capital
offence in very few countn'es7, whereas rape followed by
death is a capital offence in some countries".

In the light of the above discussion, we do not TCCOWE:
mend the sentence of death for rape.

528- As regards acts of sabotage, generally the discus- sabotage
sion relating to arson" may be seen. '

I Cf. D. P. P. v. Beard, (1920) A.C. 479, 492, 493, -and Russell on Crime
E9Q6zg,23V0l. 1, pages 468, 482, 483 ; P. H. Dean': article in (198) 54

2 R. v. Stone, (1937) 54 Times Law Reports 1046.'
3 See also observations of Stephen J'. in R. v. Serne (1887) I6 Cox 31:;

Turner and Armitage, Cases on Criminal Law (1953), page 118.
1

4 The Homicide Act, 1957 (5 and 6 Eliz. Ch. Ir), section I (1).

5 Sexual Offences Act, 19 6( and Eli . , C. '
with section 37 and secogd gchedulse. Z 2 69)' section I' read

efdsee U. N. Publication on Capital Punishment (1962), Table; at the

Sgﬂghiggégsxaﬂ), Nyasaland, South Africa, Northern Rhodesia, and I8

:8 Japan and Philipines.
9 See discussion relating to arson, separately, pargﬁaph 455: supra.



Secession.

Smuggling.

Train rob-
bery and
wrecking.

Treason.

English law
relating to
treason.

177

529. We have considered the question whether the
preaching of secession from the Union of India by violent
means should be made a capital oﬁence. We feel that this
is a matter of a special character, and would not in this
Report, suggest a provision of this nature'.

530. Some of the replies to our question on the subject
suggest that the smuggling of goods should be made a
capital offence. We are unable to agree with this sugges-
tion, for the reason that ordinarily speaking, the sentence
of death should (apart from offences which are destructive
of the country's 'integrity, independence or safety which
interfere with the loyalty and morale of the army), be re-
served for an oifence which shows a wilful disregard of
human life.

531. Train robbery and train wrecking are capital
offences" in certain areas'. We do not think, however, that
it is necessary to go beyond section 209 and 300," Indian
Penal Code, which suﬂiciently take care of the matter
where death is caused as a result of such acts.

532. We proceed to examine whether the offence of
treason, as suggested in some of the replies", requires to be
made a capital one.

533. In India, the provision that corresponds to the
offence known as "treason" in English law is the offence
of "waging war against the Government of India". The
main offence is punishab e with death'', and conspiracies
and preparations and other connected offences are punish-
able with varying punishments".

534. According to the law of England, death sentence is
mandatory in all cases of high treason". The sentence is
one of hanging by the neck until such person be dead,
but the Crown may substitute another mode of execution
directing that the head shall be severed from the body of
such person whilst alive'. What is meant by "high trea-
son" has to be gathered from the Treason Act, 1351", and
the Treason Act, 1795'.

I A Bill to punish secession has been recently introduced--rThe Unlawful
Activities (Prevention) Bill, 1967 (Lok Sabha Bill No. 60 of 1967).

2 See U. N. Publication on Capital Punishment (1962), Table at the

d.
en 3 Mainly, certain States of U.S.A. '(about 20 States).

4 Replies to Question 3 (12) are summarised separately. See paragraph
458, supra.

5 Section 121, Indian Penal Code.

6 Sections 121A, 122, 123, Indian Penal Code.

7 See also section 196, Code of Criminal Procedure, 1898.

8 Treason Act, 1814 (54 Geo. 3, c. 146), section 1.

9 Treason Act, 1814, section 2.
to Treason Act, I351 (25 Edw. 3 8t- 5. 0- 2)-

n Treason Act, 1795 (36 Gee. 3. c. 7), section I-



178

535. There are certain other Acts regarding high trea-
son. constituted by hindering the succession to the Crown,
which are not of importance for our purposel-2.

536. In England, a temporary addition to the murder Treachery»
of capital offences was made in 1940, when the legislature
passed the Treachery Act', section 1 of which provided:----

"1. If, with intent to help the enemy, any person
does, or attempts or conspires with any other person
to do, any act, which is designed of likely to give
assistance to the naval, military or air operations of
the enemy, to impede such operations of His Majesty's
iorces, or to endanger life, he shall be guilty of felony
and shall on conviction suffer death.".

Russell's discussion of the Act may be quoted'-5: :-

"Save in the case of a prisoner who is subject to
the Naval Discipline Act, to military law, or to the Air
Force Act, or an enemy alien, persons charged with
this offence are to be prosecuted upon indictment, and
if convicted, are to be dealt with in like manner as
persons convicted on indictment for murder, but no
prosecution is to be instituted (otherwise than by way
of proceedings for a trial by court-martial) except by
or with the consent of the Attorney-General, although
any person may be arrested, charged, and remanded
without that consent. The Treachery Act would seem
to be temporary, for by section 6 no person shall be
guilty of an offence under this Act by reason of any-
thing done after such day as His Majesty may by
Order in Council declare to be the date on which the
emergency which was the occasion of the passing of
this Act came to an end.".

The Act has been recently repea1ed°.

537. Under Regulations 1(b) and 38-A of the Defence
General Regulations, 1939, death sentence could be inﬂict-
ed for certain' offences, including looting'. These Regula-
tions were revoked on May 9, 1945.

538. The French Penal Code contains elaborate provi-
sions regarding treason, which speciﬁcally cover disclosure
of secrets also". .

_ 1 Various Acts relating to treason will be found dealt with in Archbold
Criminal Pleading, etc. (1962), paragraph 3001 et seq.

2 For detailed discussion, see Appendix relating to English law trea-
son.

3 Treachery Act, 1940 (3 and 4 Geo. 6, c. 21).
4 Russel on Crime (1964), Vol. 1. page 215.
5 See also I-lalsbury, 3rd Bdn., Vol. 10, page 566, paragraph 1048.

6 See the Criminal Law Act, 1967 (Chapter 58), Schedule 3, Part I,
"Repeals of obsolete or unnecessary enactments".

7 Cf. section 5, Defence of India Act, 1962.
8 Article 75 et seq., French Penal Code.



Recommen-
d ati on
regarding
a 'ens on.

179

539. The provisions of the Indian Penal Code regarding
waging war are sufficient for practical purposes,

540. An overwhelmingly large number of
express satisfaction with the present provisions.

replies

CHAPTER VII
DISCRETION OF THE COURT
TOPIC, No. 3l(a)

Replies to Question No. 4

541. Question No. 4 in our Questionnaire was as fol-
loWs:----

"The relevant provisions in the Indian Penal Code
vest in most cases a discretion in the court to award
the sentence of death or the lesser sentence of im-
prisonment for life. Is the vesting of such discretion
necessary and are the provisions conferring such dis-
cretion working satisfactorily? If not, have you any
suggestion to make in this behalf?"

542. The question1 comprises three parts; ﬁrst whether
the vesting of the discretion in the court to award the
sentence of death or the lesser sentence is necessary;
secondly,' whether the provisions on the subject are
working satisfactorily; and, thirdly, whether there are
any suggestions to make in that behalf. The three points,
however, are connected with one another, and can be
dealt with together.

543. The replies received on this questionl fall under
three categories---those which regard the existing position
as satisfactory, those which express the View that the
discretion is not being exercised in a proper way, and,
lastly, those which, while expressing general agreement
with the present provisions, have made suggestions on
certain points of detail. This group comprises almost all
the State Governments, High Courts, and individual
High Court Judges who have sent replies to the Question-
nairez, besides a number of other bodies and individuals.

544. The reply of the Chief Justice of a High Court'
states that the existing provisions of the Indian Penal
Code. when considered with the judicial decisions of the
Various High Courts, do give sufﬁcient discretion of the
court to award either the sentence of death or the lesser
sentence, and that the system is working satisfactorily.

I Paragraph 54I..su1>ra.
2 It is unnecessary to enumerate these replies. /_ ~
3 Chief Iustice of a High Court, S.'No. 316. km», ~ P



180

545. In the reply of a High Court Judge', it has been
emphasised that murders may be "murders in the par " or
"murders in the dark alley", "murders due to family or
close relationship", "murders due to quarrels or violent
rage" and so on. The perfect legislative prescription of
detailed degrees of offences and regulation of offences on
such a basis is not possible. Even if this is possible, this
cannot be efficient. The present provisions, it is stated,
are working satisfactorily.

546. In the reply of a Member of the State Legislature',
it has been stated, that the discretionary powers are work-
ing satisfactorily, though With a lenient trend.

547. In the reply of another High Court Judge", it has
been pointed out that the vesting of the discretion is-
necessary, so that punishment suitable to the facts and
circumstances of the case can be meted out. The reply
adds that it is on the balance of the particular facts and
circumstances of each case that the question as to which
punishment to be awarded has to be decided. '

548. The reply of another High Court Judge' states»
that even after the amendment of 1955 in section 367 (5) ,.
Code of Criminal Procedure, 1898, the assumption that
death is the normal punishment continues, and suggests,
that the Criminal Procedure Code may be suitably
amended to provide that reasons should be given for
imposing the death penalty.

549. The reply of an Advocate, who has been a Member
of the Lok Sabha'5, states that the amendment of section'
367, Criminal Procedure Code, has been of no avail, and
that to make the discretion effective, it should be fortiﬁed
by a provision that the discretion of the Sessions Judge
or of the High Court, in awarding the lesser punishment,
would not be overruled or reversed by the High Court or
the Supreme Court, even if, in the opinion of the High
Court or the Supreme Court, as the case may be, there
are no extenuating or mitigating circumstances. By way
of illustration, the reply refers to the decision in a Madras
case", where the High Court observed that the Sessions
Judges ought not to refrain from awarding capital punish-

ment merely on the ground that public opinion favours the '

abolition of capital punishment. The High Court also criti-
cised the Sessions J udge's view that it Was not necessary to

1 A High Court Judge, S. No. 230.

2 A Member of a State Legislature, S. No. 232.

3 A High Court Judge, S. No. 396.

4 A High Court Judge, 8. No. 262.

5 An Advocate, who has been a Member of the Lok Sabha, S. No. 305.
6 In re Sambangi, A.I.R. 1939 Med. 109, In.



181

condemn four persons to death for the murder of one
man'.

550. The reply also refers to the Supreme Court obser-
vations in Vadivelu Thevar v. State of Madras? to the
effect that if the court is satisﬁed that there are mitigat-
ing circumstances, only then it will be justiﬁed in impos-
ing the lesser sentence. It should be stated here that what
the Supreme Court was trying to emphasise in that case
was that the character and volume of the evidence in
support of the prosecution could not be the basis for not
awarding the sentence of-death. Further, the decision
does not deal with the position after the 1955 amendment.

551. It has been emphasised, in the reply of the Advo--
cate-General of a State', that the award of death penalty
must ultimately rest with the Judge who would decide
the case. The gravity of the situation, and the deliberate
manner in which the offence is committed with no ex-
tenuating circumstances, etc., are, it is stated, all factors
to be considered while awarding the death sentence.

552. It has been suggested in the reply of an Advocate,
who is also a Member of a State Legislature', that the
vesting of the discretion is absolutely necessary, and
that, in every case where the sentence of death is to be
awarded, it should be clearly provided in the statute that
the court has got a discretion to award the lesser sentence
of imprisonment for life. The reply refers to the con-
ﬂict of decisions on the subject whether, after the amend-
ment of section 367 (5), Code of Criminal Procedure, 1898,
by the Act of 1955, death sentence still remains the normal
sentence _for murder.

553. The reply of a very senior Advocate of the Bombay
High Court?' states that the discretion "is both necessary
and beneﬁcial". "This discretion is the main feature of the
Indian law relating to murder, which makes it more
sensible, rational and humane than the corresponding Eng-
lish law, enabling the Judge to discriminate between quali-
ties of murder. My only comment is that there is a ten-
dency to use this discretion much too lavishly in favour
of the lesser sentence, Which, in the long run, may make
the death penalty a dead letter in practice. On the whole,
the provisions conferring the discretion have worked
satisfactorily".

1 It should, however, be noted that the case in A.I.R. I939 Mad. 109
was one of brutal and carefully plarmed murder, which "reminds one of
the days of the thugs ".

2 Vadivelu Thevar v. State of Madras. A.I.R. I957 S.C. 614.
3 An Advocate General, S. No. 229.

4 A Member of a State L_egislgtu.t-e, S, No, 235,
5 A very senior Advocate, under question 4, S. No. 318,1.



182

554. In the reply of a Member of a State Legislaturel,
it has been stated that the provision of discretion general-
ly works in the right direction, excepting in a few cases.

555. The reply of a High Court J udgez states that dis-
cretion has necessarily to be left with the courts, but one
'cannot say that it is Working satisfactorily, as, after the
amendment of 1956 in section 367, Code of Criminal Proce-
dure, 1898, courts have become even more erratic in the
matter of choosing between the extreme penalty on the
one hand and lesser penalty on the other. The reply pro-
ceeds to observe that an element of discretion necessarily
involves some uncertainty, but the uncertainty can be
reduced by re-enacting some provisions, not only in sec-
tion 302, Indian Penal Code but in other sections (such
sections as 396 and 121, Indian Penal Code) that the death
sentence should be compulsory unless the court records
special reasons why it may not be awarded.

556. The reply of another High Court Judge?' states
that the responsibility of deciding between death sen-
tence and life sentence has been discharged by the Judges
in India in a human and conscientious manner. The reply,
however, expresses an anxiety as to the future, stating
that there is deterioration in the qualities of judgment in
the Sessions Courts in the recent years, and that "there
will soon come a point of time when the existing law may
have to be reviewed by a Commission appointed for the
purpose to see if statutory provisions can be embodied for
giving guidance to Judges in respect of the award of the
sentence".

557. The reply of another High Court Judge' states
that recently there is tendency among Sessions Judges to
ﬁnd an excuse for giving the lesser sentence or for reduc-
ing the offence.

558. The replies of most of the District and Sessions
Judges' expressly state that the present position is
working satisfactorily.

559. This is also the view of an association of oﬁicers of
the judicial service?

560. In the reply of a City Civil Court oJudge7, it has
been emphasized that a decision as to sentence depends

I A Member of a State Legislature, S. No. 249.

2 A High Court Judge, S. No. 251.

3 A High Court Judge, S. No. 262 under questions I, 2, 4, 5 and 6.
4 A High Court Judge, S. No. 252.

5 Principal Judge of a City Civil Court in a Presidency Town

emphasises that it is diﬂicult to determine in advance the right measure of

punishment, 8. Nos. 335, 336. 34!, 342. 347. 348.349. 351. 352. 354.358.
360, 362, 364, 366, 370. 371.

6 A Judicial Oﬁcers' Association; S. No. 374.
7 A City Civil Court Iudge, S. No. 377.



183

on the facts and circumstances of each case, and that the
court would be the best judge of those facts and circum-
stances.

561. A District and Sessions Judge has in his reply
stated' that, as a practising lawyer for more than 25 years,
he had noticed that many Sessions Judges were reluctant
to award the death sentence even for brutal murders, but
that on the whole it was described that a Sessions Judge
must have a free hand in awarding sentence.

562. In the reply of Presidency Magistrates in a Presi-
dency town, it has been pointed3 out that discretion is
necessary because the circumstances under which each
individual offence of murder is committed would be
vastly different, and so would be the motives and methods.

553. According to these replies, the vesting of such dis-
cretion is necessary, and on the whole, the provision is
'working satisfactorily also. The courts, it is stated,
should be given the fullest opportunity to consider the
question of inﬁicting capital punishment having regard to
the circumstances of the case". It has been pointed out
by one State Government' that the question of sentence
is and must always remain a matter of discretion; the
vesting of discretion in courts is based on sound and equit-
able principles. Any rigid approach to matters relating to
lr-:u;ian affairs may unnecessarily produce harsh and
danmging results. The discretion, it is pointed out in an-
o';':';<-.1' reply'), has to be left with the courts. It is also
stated" that the discretion is necessary for the "indivi-
dualisaton of the offender before ﬁtting the punishment
with the criminals, as otherwise the court is likely to
impose punishment simply having regard to the apparent

eE1lOI'1'nlt_V of the crime, disregarding the circumstances of
t. e case".

564. It has also been pointed. out" that the High Court
has ample powers to see that the penalty imposed by the
trial court is adequate and to enhance it where necessary.
The argument that the discretion may be affected by per-
sonal bias, prejudice, likings and sympathies has been
anticipated in one of the replies', which takes care to
observe that the discretion would not be abused, as the
desire to do justice, especially in such serious crimes, is
inherent in every individual.

I A District and Sessions Judge in Gujarat, S. No. 386.
2 S. No. 549.

3 Chief Justice of a High Court and a Judge of the High Court agreeing
with the Report of the Secretary, Rules Committee, S. No. 130.

4 A State Government, S. No. 182.

5 A State Law Commission, S. No. I01.

6 An Inspector-General of Police, S. No. 131.

7 A High Court Judge, S. No. 105.

8 A Member of the Bar Council of Madras, S. No. 104.

14--l22 M of Law



184

565. In the reply of the Judicial Section of the Indian
Ofﬁcers' Association in a Statel, the reason for retaining
discretion is thus stated:------

"Discretion is necessary, since compassion as a
basic element, even in administering justice should
not be lost sight of. Facts of every case present an
inﬁnite variety that cannot be provided for except by
some latitude involved in judicial discretion. By and
large, provisions conferring discretion have worked
out satisfactorily. Inherent in the nature of the dis-
cretion that needs to be exercised is an impossibility
to deﬁne more precisely, or in any set terms, the
limits or premises on which such discretion should be

exercised".

566. On the other hand, a small group of replies has
expressed dissatisfaction with the way in which the dis-
<.-retion is exercised at present. A Secretary to one State
Government'-' has replied that often the courts err on the
side of leniency, and award the lesser punishment of
imprisonment for life owing to sentimental reasons.

Another State Government" has, while agreeing that the
present provisions are working satisfactorily on the
whole, ventured to point out that death sentence is
passed in very rare cases, as Judges appear to have some
"fallacy" on this issue that capital punishment should be
avoided as far as possible.

567. Two High Courts Judges' have stated that their
experience is that the discretion has been exercised on the
whims of the individual judicial oﬁicer, and not on any
recognised principles. That the vesting of discretion
adds an element of luck is a point made in another
reply5-5.

_ 568._ One argument advanced is that the vesting of
discretion places both the sentences on the same footing
but, as a matter of fact, the sentence of death is more
severe; courts, it IS stated, will be in a dilemma in such
a case, and often they feel like giving the less severe
punishment7.

~----__._m__, ___ ______;__

I Reply to Question 4, S. No. 562.

2 Home Secretary to a State Government, S. No. 131.
3 A State Government, S. No. I54.

4 Two High Court Judges, S. No. 105.

5 An Advocate, S. No. 201.

6 See also the obse t' ' N ndK . TheS 6 .
L. I. 702, 706 paragraplirvz?3foE1§.(lJI.1). a "mar V M" (I9 3) 2 Cr

7 S. No. 127.



185

Those who have favoured the continuance of the
existing provisions have also referred to one case where
the Supreme Court had to criticise the leniency of the
lower courtl. It is also stated that the vesting of discre-
tion is against the spirit of the law, which aims at equal
treatment for equal offences.'

569. In the reply of a High Court Judge", the position
has been thus analysed:---

"Where the law expressly prescribes, for a crime,
two alternative punishments, it impliedly recognises
the existence of degrees in the crime, although tech-
nically the same. Those degrees are determined by
the circumstances of the case, the state of mind of the
offender and the quantum of moral obliquity dis-
played by the act. The existence of two alternative
penalties must necessitate vesting of discretion in
the court, so as to decide which of the two alternative
penalties should be imposed in the facts of a particular
case".

The reply, however, adds that in the Muffasil courts
in the State, this discretion has not been satisfactorily
exercised, and, in many cases, the High Court had to re-
verse the sentence of death.

570. The reply of a District and Sessions Judge' states
that though the discretion has to be exercised judicially,
in actual practice it has been found that the personal pre-
dilections and conscientious objections to capital sen-
tence on the part of the Judge concerned have entered in
the exercise of the judicial discretion. The reply sug-
gests that unless uniform principles are evolved per-
taining to the imposition of capital sentences, the law as
administered at present cannot be said to have achieved
its deterrent object5.

571. A State Government", while stating that discretion
is necessary and that the existing provisions are Working
satisfactorily, has added that "a disinclination to award
the death sentence is prominently noticed in recent judg-
ments. Often the feeling is that the judge is bending him-
self away from the irrevocable sentence of death, and,

I Reply of Chief Justice of a High Court and a High Court Judge under
Question No. 4.

2 S. No. 117.

3 A High Court jdigi. un 'air question, 4, S. No. 3x6.

4A District mi Sessiois Judge in Maharashtra, S. No. 346; under
questions 4 to 7.

5 The reply cites two cases decided by the Bombay High Court. One is
not reported. Regarding the other, Slate v. Shankar, A.I.R. I957 Bom.
226, 231, paragraphs 15 and 232, it appears that the death sentence was not
imposed, because the evidence was wanting as to who actually committed the
murder. This judgment discusses the Bawla case (31 Born. Law Reporter
515).

6 A State Government, S. No. 580.



186

therefore, trying to look out for reasons to award the
lesser punishment". The reply, further, states that it
would be better "if the legislature stepped in to indicate a
clear distinction between cases where death sentence shall
be awarded and one where it may be awarded."

572. It appears, from its reply1 to other questions, that
in the category of murders which slmll be punishable with
death (ﬁrst degree murders), it would place "murder of a
woman after having committed rape and murder of
children after criminal assault on them".

573. The third and last group of replies under this ques-
tion consists of those who, while in favour of retaining the
existing provisions, have suggested certain modiﬁcations
in detail. One suggestion is that the discretion should be
applied according to the latest views on penology and
psychiatry? Another  to the effect that there should be
no discretion in case of heinous Or repeated murders".

574. Another reply' emphasises that the discretion can
be effective only when the judiciary is an "enlightened"
one. One repiyé assumes that the courts have to give the
death sentence unless there are circumstances justifying
the lesser penalty, and suggests that the mode of exercise
of the discretion must change. Another reply" would like
the discretion to be taken away from Sessions Judges, "as
they have had not much experience of criminal work", and
suggests that when a sentence comes up for conﬁrmation
before the High Court, it can be relied upon to exercise the
discretion Vested in it. This reply states that the provisions
conferring the discretion on the Session Judges are not
working satisfactorily.

575. It remains, now, to note a suggestion7 in the other
direction, to the effect that discretion should be given to
the Court in the case of offences under section 303, Indian
Penal Code also.

576. The view of one Association of Judicial Oﬁicerss is
that if a discretion is vested in the courts, there is always
a tendency to err on the Wrong side, and the best step
would be to "codify the law". It suggests that the practice
is to record reasons for awarding the death sentence, and
that this practice may be codiﬁed.

x S. No. 580 under questions 6 (b) and 3 (b).

2 A Barrister-'rn--Law, Calcutta, S. No. 150.

3 S. No. 138.

4 S. No. 118.

5 A Bar Council, S. No. 115.

6Bharat Sewak Samai, New Delhi, 8. No. I45.

7 Indian Federation of Women Lawyers, Bombay, S. No. 121.
8 S. No. 373, reply to Questions 3. 4, 5 and 8.



187

577. A suggestion made by an Advocatel is that though
the vesting of discretion is necessary, records of all death
sentences should be compulsorily perused and examined by
a special Bench of the High Court. Another suggestion
made by an Advocate" is that though the discretion is
necessary, in such cases the court should have the help
of a set of special jury.

578. Another suggestion of an Additional Sessions
Judge' is that a provision should be inserted that if the
trial court awards the lesser punishment, it should be made
ﬁnal and incapable of being enhanced and turned into a
sentence of death.

TOPIC NUMBER 31(b)
H Ow discretion exercised

579. The way in which the discretion is exercised by
the court can be seen from the decided casesi.

TOPIC NUMBER 31(c)
Recommendation regarding discretion of the Court

580. On a consideration of the replies received to the
question as to whether discretion of the Court in the matter
of the sentence to be awarded for capital offence should
be retained, we have come to the conclusion that it is
necessary to retain this discretion, and that by and large
discretion is exercised satisfactorily, and in accordance
with judicial principles. ,

581. If the discretion is to be abolished, the alternatives
would be, either to substitute a provision that the sentence
of death shall be the rule and the lesser sentence shall be
the exception; or, to substitute a provision that imprison-
ment for life shall be the ordinary sentence and the sen-
tence of death shall be the exception. So far as the ﬁrst
alternative is concerned, we are not inclined to agree with
any such proposal. The amendment of section 367(5) of
the Code of Criminal Procedure in 1955 has dealt with the
matter. In the absence of strong reasons, we would not
like to disturb it. We know that the question how far
such a discretion should be conferred on either the Judge
or Jury is a matter which raised great controversy in
England'. It is not necessary to consider the various

r An Advocate, S. No. 410.

2 An Advocate in West Bengal, S. No. 407.
3 An Additional Sessions Judge, S. No. 379.
4 See Analysis of case-law.

5Royal Commission Report, pages 191 to I 3,

_ , paragraph 8v-
(Discreuon of Judge), pages 214, paragraph 611 53 549

iscrction of Jury).

Case-law.

Recommen-
dation re-
garding dis-
cretion of
the Court.



188

   

aspects offthat«1:0n£mve!:a&    l l i '
between the two <-senterioes  too heavy ier ,

The Royal Commission recommended leaving the

tion to the Jury, but the recommendation was not 

by the Government? The 'positioe9;;in India is diﬁere',§;t,,
The cases of homicide in India are not so few and tar'

between as to justify any apprehension that the decision
of the Judge regarding the sentence would cause emba.!w-

ment to the Judges. Moreover, experience in India of
working of the provisions has not revealed any ;

practical difficulties as to the burden placed on the Judgem

In fact, Sir John Beaumount, in his evidence before 
Royal Commission", expressed the View that the alternatiigéyo

sentence had worked Well in India, and that no Judge
complained that the burden was either unfair or excessiiitfm

532. We do not think thet the 'exercise of discxgnoag,'

 
 

the Judges has evoked or"is likeiy to evoi:e*an5'* 

controversy, and so far there has been no public» 

of the judiciary on this point, and we do not a 
any such controversy. The law, as it exists in In 8,01' ﬂy
it existed before the amendment of the Code of Criminta'l
Procedure, 1898, in 1955, did not lead to any 
from the Judges in India of the bag-den bgin . oner0us... 01;
the other hand, the judges havel'ea:éfc'is'ed
according to judiciai princ_iples.'"

In this View of the matter, we dew: think that my;
change in the law is called for. ' ' ' i "

583. Moreover, in principle,' the highest  of the
law should not follow autonoatioallyr -We-are  
there is a shade of 0 ' ;', V pp ' yfj -,,
ment of section 367 1955 as unfortunate,  "
rity of the views expressed on this question are 
other side, and no 'strong case has been made out for 
back upon this amendment. The tendency in modern
times is, in general, moreend more  thetmamdatary
character 0f~d.e,a.th. penalttyt

534- 50 fart as the   valternntive. 

  

it 

a provision substituting  for life as the ' 

nary sentence, is concerned, the matter will he diseased
separately5. , S f

IFor a gooddiscussion, see I. E. Hall Williams, " .1' ' '
murder trials", (1954), 17 Modern Law' Review, pa§3"§z5.'s°'°"°" In

2FO!' _a.detailed discussion, see Christoph, "Capital Punishment and
British Politics" (1962), poses 91. 92 and :27 (middle), and :0: House of
Commons Debates (Novcmbet"'1o,'I955), Vol. 545, cohimnszxg-220.

3 Royal Commission Report, page 193, paragraph 545,

_4 See discussion and information summarised in U. N. Publication,
Capital Pmllshment (1952), Pages II and 12, paragraph: 14-19.

53:: dismlsion relating to Question 7 (4)  79°  ,



189

585. We note that some of the replies reveal dissatis-
faction with the manner in which the discretion 'is exercis-
ed, and that a View has been expressed that Judges are
inclined to be lenient. We,.however, think that since the
matter of sentence is essenttally one of discretion, though
a judicial discretion, to be exercised in accordance with
sound judicial principles, a change in the provisions should
not be thought of as a possible remedy to cure the dissatis-
faction referred to above.

TOPIC NUMBER 31(d)
Lesser sentence for offences under sections 302 and 303

586. Two points regarding the punishment under sec- Lesser sen.
tions 302 and 303, Indian Penal Code, may be discussed here tence for
though they do not directly arise from the question of gggggess
abolition of capital punishment. The first is, whether in dons 302°C'
respect of the offence under section 302, Indian Penal Code and 303.
(murder), a punishment of imprisonment for a speciﬁed
period should be added in addition to the existing provi-
sion for punishment by imprisonment for life. Cases have
arisen in the past where it was felt that, in the circums-
tances, imprisonment for a specified period (and not for
life), would be adequate. Even though the oﬁence does

. fall under murder, the court may feel that neither the

sentence of death nor the sentence of imprisonment for
life is called for the circumstances of the case. The usual
practice in such cases has been for the High Court to make
a recommendation to the Government for suitable action

_ under section 401 of the Code of Criminal Procedure'. We

do not consider it necessary to recommend any change in
the statutory provisions.

587. For the offence under section 303, Indian Penal Code,
the sentence of death is mandatory. The reason for this is
that in the case of an offence committed byaperson who is
already under sentence of imprisonment for life, the lesser
sentence of imprisonment for life would be a formality.
It has, however, been suggested" that even for this
offence the sentence of death should not be mandatory.
We have considered the arguments that can be advanced in
support of the suggested change. It is true that, ordinarily
speaking, leaving the court no discretion in the matter of
sentence is an approach which is not in conformity with
modern trends. It may also be noted that section 303 is
not conﬁned to a person who is undergoing imprisonment
for murder. It applies in all cases where the sentence
is of imprisonment for life, which would take in persons'

I See Analysis _of Case law, Cases No. 4 (Footnotes), 33, 34, 36, 46,
S3. S7 and 93-

zcf. suggestion of fthe Indian Federation of Women Lawyers, S. No.
121.

3 See also replies to Question 3 (a)--dealing,with section 303, Indian Penal
Code, paragraph 391, supra.



Considera-
tions guiding
the discre-
tion of the
court.

190

sentenced, for example, under section 304 (culpable homi-
cide), under section 395 (dacoity), sections 388 and 389
(extortion by threat of accusation of an offence of un-
natural intercourse), mischief by ﬁre (section 438) and
counterfeiting currency notes (section 489A). In all these
cases, if the person sentenced to imprisonment for life
commits murder again, the court would (by the terms of
section 303) be precluded from considering the extenuat-
ing circumstances of the case, with a View to passing the
lesser sentence.

588. It may also be noted that under section 307, second
paragraph, Indian Penal Code (attempt to murder by a
person undergoing imprisonment for life, if hurt is caused),
the offender "may be punished" with death. The punish-
ment of death is not mandatory. This paragraph was
added by the Amendment Act', and has not gone so far
as to make the sentence of death obligatory.

589. As against these points, it can be argued that where
a person has been already sentenced to imprisonment for
life, it means that he has been at least once guilty of a
serious oifencte, and, in the vast majority of cases the com-
mission of a murder by him would tend to show that he
is a dangerous criminal who has not mended his ways.

590. We also considered the question whether section
303, Indian Penal Code, should be conﬁned to cases where
the sentence which the offender is undergoing is one in
respect of a capital offence, by adding the words "for an
Offence for which he could have been sentenced to death"
after the words "imprisonment for life".

591. We have, however, come to the conclusion that it
is not necessary to make any change. We feel that in
such cases it would be pointless to award the sentence of
imprisonment, which under the Code of Criminal Proce-
durei must run concurrently. Acute cases of hardship,
where the extenuating circumstances are overwhelming in
their intensity, can be dealt with under section 401, Code
of Criminal Procedure, 1898, and that seems to be suﬁ'i-
cient.

A TOPIC NUMBER 32(a)
Considerations guiding the discretion of the court

592. Courts exercise their discretion (as to awarding
the higher or lesser sentence in a capital case) on certain
broad principles. The case-law on the subject, represen-
tative examples of which are collected elsewhere3, shows
in a fair measure some of the important principles that are
taken note of, in this context.

1 Indian Penal Code Amendment Act, 1870 (27 of 1870).

2 See section 397 (2), Code of Crim'nal Procedure. 1898.
3 see analysis of case-law.



191

T0912 NUMBER 32(b)
Replies to Question N0. 5

593. Question No. 5 in our Questionnaire was as fol- Q4"-3ti°"V

1ows:--

"If the vesting of such discretion is necessary, what
should be the considerations which should weigh with
the court in awarding the lesser punishment of impri-
sonment for life? Is it possible to codify such consi-
derations?".

The two parts of the question, namely, what should be
the considerations to be followed in awarding the lesser
punishment, and whether it is possible to codify such con-
siderations, may be dealt with together. The replies to
the Question fall under three classes--those against codiﬁ-
cation, those in favour of it, and those suggesting a middle
course, i.e., provisions in certain respects.

594. Most of the replies1 received on this question have
expressed the view that the considerations for awarding
the lesser punishment do not admit of exhaustive codiﬁ-
cation. In a way, consideration of the topic is linked up
with the question of the court's discretion, arid, for that
reason, one reply'--' to this question points out that the ﬁeld
of discretion should not be curtailed or widened by a rigid
classiﬁcation. That a codiﬁcation might both widen and
curtail the discretion is a point which can be elucidated
from the elaboration made in another reply", which points
out that it is undesirable to codify the considerations, be-
cause there may be a case where the death sentence is pro-
vided for under such codiﬁcation, but having regard to the
special features of the case, the particular accused does not
deserve it. On the other hand, it is dangerous also for the
State to attempt such codiﬁcation because in some cases,
where according to such codiﬁcation there is no capital
punishment, the accused should have been punished with
death in View of the exceptional nature of the offence.
That reply further points out that it is not possible to
categorise (i) all circumstances of human ingenuity, or (ii)
more particularly, the ingenuity of a criminal mind, or (iii)
the circumstances under which the crime may be commit-
ted. That the considerations for awarding sentence might
even change with time, is a point made by a retired High
Court Judge'. Another danger of codiﬁcation has been
noted by a High Court', namely, that it might result in re-
surrecting the old view,--now discarded by progressive

I It is unnecessary to enumerate all of them.
2 A High Court, S. No. 140.

3 Chief Justice of a High Court, and a Judge of a High Court,-
S. No. 130.

4 A Retired Judge of the Bombay High Court, S. No. 95.
5 A High Court, S. No. 167.



192

judicial opinion,--that where both the punishments are
provided, the normal rule is to award the higher punish-
ment.

595. Certain replies, while suggesting that the test of
intention to cause death 2T1'.'._',' be adopted', or that the
absence of pre--meditati0n would be a principal considera-
tion in awarding the lesser sentenceg, have taken care to
state that the considerations cannot be codiﬁed. And
inany replies" have pointed out that the principles have
been laid down by judicial decisions, but that, at the same
time. the considerations cannot be codiﬁed.

596. A State Governmentt has stated that the enume-
ration or codiﬁcation of the considerations would make the
matter verj; rigid in its application. Another State Gov-
c>'n.i vni' l"'1.3 stated that at present considerations of age,
:~.e':, ,,re'=./ioi=,s conduct, mental conditions, premeditation,
intoxication and the nature of the crime are the principles
which gjuﬂiio {Lie use of discretion. 'These considerations
913- ;<.1:1CﬁCl'3i': éfilii it is not ne:essa.1'y to codify them, as codi-
fication wou1j:' mean limiting the discretionary power.

lll

       

">7. T o i';~jfT_.' oi' the Chief Justice of a High Court
who  against ccdiﬁcatiorr, is as follows:----

:11 settled by judicial decisions that capital
s.ren1.c;1ce should not be imposed unless there is pre-
meditated cold-blooded murder. Murders committed
in the heat of the moment are seldom punished with
capital :-.cnte:rice unless the offender has acted in an
exceptionally cruel manner, especially towards a help-
less victim or has been guilty of multiple murder com-
mit'ie.d in the course of the same transaction after
committing other serious offences like rape, dacoity,
etc.".

 

"It is \'«.W

598. The Chief Justice of another High Court7 has stated
that the main considerations are sex, age, provocation,
though not sufficient to reduce the crime to manslaughter,
absence of premeditation or cruelty or barbarity, motive
and other circumstances indicating that the accused is not
a person with a selﬁsh, cruel and calculating nature with
little or no respect for human life. The reply however
points out that the mitigating considerations vary in each
case, and are so inﬁnite in variety that it would not be

I A Bar Council, S. No. I32. \
2 An Inspector-General of Police, S. No. 131.
3 For example, one High Court. S. No. Ii7 and one High Court Judge,
'9. No. 147.
4 S. No. 57..
5 S. No. 580.
6 S. No. 317.
' 7 Chief Justice of a High Court. 8. No. 393.



193" C

    »"«A11y'-attempt to do so may tend
ta-9"Iiie:tinc¥'esirable  of fettering the discretion of the

 A High Court Judge', while stating that the courts
geiiefally have regarded extreme youth, extreme old age,
provocation, mental disorder and miserable family life as
some of the considerations for awarding the lesser sent-
ence, has stated, that an exhaustive list of such considera-
tions 'cannot be prepared, and that it should be left to the
Judges to exercise their discretion on a proper considera-
tiori of the circumstances of, individual cases, within the
 if any,_'iE1*idicate_d,;', C the legislative policies or by en-
 puhHs,9piz:is2e . _ . -

600. It has been stated in the reply of another High

-Court Judge", that the considerations should better remain

undeﬁned. The reply adds that such considerations,
amongst others, may be: conduct of the offender, nature
of "the temptation, to which theioﬁender has yielded, the
i    tlrieycrirne Wasjcominitted, and the cir-
' "stances in which the 'murderous assault was made.

  

601. It has been emphasised in the reply of another
High Court J ridge", it is on a balance of the particular facts

and circumstances of each case that the question of punish-
ment can be decided.

602. The reply of a State Government states that a court
in passing a sentence", should inﬂict such sentence as the
gravity or otherwise of the crime of which the accused has
been convicted warrants and merits. . rience in courts
shows that the provisions should be ﬂe ' le. Any attempt
to cadify the law, it is stated, would fetter the judicial dis-
 and create uniniaginable hardships.

l 'ﬁ93.'*It,_has been pointed out by many High Court
 "ﬂint the considerations depend on the nature and
 of intention, and on every single relevant fact of
the circumstances of the crime; and that codiﬁcation, if any,
canonly indicate the principle.

604. A City Civil Court Judge in Bombay" has stated
that it will be incorrect to codify the considerations for the
exercise of such discretion, "for the very conception of
codiﬁcation is a negation of the concept of discretion".

r A High,Court Judge, S. No. 230.
2 A High Court Judge, S. No. 395.
3 A High Court Judge, S. No. 396.
4 A State Government, S. No. 242.
-5  Conn Judges, S. No. 262.

i "is §.Ns";'*4s4; '



194

605. A High Court Bar Association' has stated that the
discretion vested in the court was a wise one, and the law
need not be altered because for the last 100 years it has
worked very satisfactorily. The reply adds that while the.
law reports are replete with the considerations which
weigh with the court in awarding the lesser punishment,
it is undesirable to codify them, as the discretion of the
judges should be left unfettered. The reply of the majo-
rity of the Presidency Magistrates in the Presidency Town'
states that there are extremes of murders,--two extreme
instances being a cold blooded murder committed with ut-
most cruelty or for dastardly motives (on the one hand),
and murder by a mother of her child owing to poverty (on
the other hand). These two extreme instances "Would
illustrate the gamut of motives and methods for the com-
mission of the crime; it would be diiﬁcult to enumerate or
codify them". The discretion regarding sentence, it is
stated, is being exercised judiciously, and it is not neces-
sary to codify the Qonsiderations.

606. The reply of a District Bar Association3 states that
each case will have to be considered in its own context and
circumstances. As times change and circumstances vary,
considerations will also differ.

607. It should be noted that a very large majority of the
District and Sessions Judges" have expressed themselves
strongly and in very clear terms against codiﬁcation.

603. One of the replies emphasises that human nature
is so complex, that in every case a diﬁferent set of cir-
cumstances is likely to arise and all of them cannot be
selected and codiﬁed.

609. Another reply6 states that While considerations like
the gravity of the offence and the motive of the crime
should weigh in awarding the punishment, it would be
diﬁicult and inexpedient to codify them, and the considera-
tions should be elastic because cases differ in their magni-
tude and complexity.

610. Several District and Sessions J udges7 are of the
view that as the circumstances of murder vary from case

I Reply to questions 4 and 5, S. No. 493.

2 S. No. 549.

3 S. No. 239.

4 Districts and Sessions Judges, S. Nos. 339, 354, 364, 367, 390, 448,

456. 459.462. 473, 480, 488. 500-
5 A District and Sessions Judge, 8. No.354.
6 A District and Sessions Judge, S. No. 353.

7 S. No. 520 ; S. No. 522 ; S. No. 524; S. No. 526 ; S. No. 527;
S. No. 534; S. No. 535; S. No. 551 ; S. No. 553 3 S. No. 554 ; S. No.

560.



195

to case, it would not be wise to codify the considerations.
In one reply', it is emphasised that it is the "sum total"
of the circumstances that guides the court in awarding
sentence.

611. The reply of a very senior Advocate of the Bombay
High Court" seems to express concisely the reasons for
opposing codiﬁcation. "All extenuating circumstances,
such as motives for the crime, absence of premeditation or
previous preparation, provocation, even falling short of
"grave and sudden", in appropriate circumstances; stress
of the situation which led to the murder, age, sex, family
circumstances, etc., may cumulatively incline the court to
take a lenient view.

"It is neither possible nor advisable to codify the consi-
derations, and fetter the court's discretion. Each case of
murder has its own peculiar features which deserve con-
sideration.".

612. Another difficulty of codiﬁcation has been thus
brought out":--

"It is not possible to codify the considerations that
should weigh with the Judge, for otherwise it is no discre-
tion at all. The judge who is trusted to try such cases must
be trusted to exercise it wisely.".

613. A small number of replies has, however, stressed
the desirability of codiﬁcation. This category comprises
two classes----ﬁrst, those who, while not expressly suggest-
ing codiﬁcation, have stated that the principles should be
indicated; and secondly, 'those who regard codiﬁcation as
possible.

614. Under the first class fall the opinions expressed by
certain High Court J udges' to the effect that if discretion
(in the matter of sentence) is to be left, some principles for
its exercise should be indicated, for example, minority of
the accused.

615. To the second class belong several replies which
have ventured to suggest a basis for codiﬁcation. Various
bases have been suggested, e.g., motive5, and absence of
pre-meditation and tender age".

1 A District and Sessions Judge, 3. No. 556.
2 S. No. 318.

3 An Additional Sessions Judge, in the State of Guiarat, S. No,
379-
4 Two High Court Judges, S. No. 105.
5 A Pleadcr, Madras, S. No. I09.
6 Administration of a Union Territory, S. No. 106.



196

616. One reply' suggests that the only two considerations
are that, if the Judge strongly feels that the accused is
honest, or, if the past history of the accused shows satis-
factory character, the lesser punishment should be award-
ed, and that these are the only two considerations for lesser
punishment. Another reply'-' states that the age, nature
of the offence. circumstance of the offence (i.e., whether
it was committed on the spur of the moment or on excit-
ment or emotional outburst, etc.) may be considered.
Another reply" after stating that the considerations to be
taken into account pertain to the offence and the offender,
proceeds to give an elaborate enumeration of the factors
to be taken into consideration regarding the offence as well
as the offender. These are as follows:--

(1) the greatness or smallness of the evil likely to
result from the acts;

(2) the facility or difﬁculty with which it can be
committed or with which it can be detected;

(3) the frequency or parity with which acts are
committed;

(4) the aggravating or extenuating circumstances
which accompany this particular act, viz., (a) the
victim, as where a women or child is involved, (b) the
place, (c) the time, and (d) the company.

817. As regards the offender himself, account should be
talaen, it is stated, of the following facts:----

(a) his age, health and sex;

(b) his rank, education, career and disposition;
(:5) his motive;

(d) any temptation or intoxication;

(e) his susceptibility to punishment; and

(f) the evil which the judicial proceedings have
inflicted on him already.

From these considerations, a ﬁve-fold classiﬁcation of
offenders, it is stated, may be formulated:----

(i) passion; (ii) opportunity; (iii) acquired habit;
(iv) insanity and (V) innate instinct.

I '\n Inspector--Gencral of Police, S. No. 166.
2 A Member of the Raiya Sabha, S. No. 207.
3 S. No. 122.



197

618. It remains now to consider replies suggesting the
middle course (provisions in certain respects). Thus, it has
been stated1 that there is no insurmountable difficulty in
making 0. speciﬁc provision regarding the considerations
to guide the court's discretion, but that it should be made
clear that the enumeration is not exhaustive.

619. One reply states as follows":----

"I would not put it as if the exercise of discretion
should be on considerations which weigh with court
in awarding the lesser punishment of imprisonment for
life. I would put it the other way. The considera-
tions which should weigh with court in awarding the
higher punishment of sentence of death would have to
be thought of and discretion vested in courts in this
regard. It must be possible to codify such considera-
tions.".

620. Another reply", while favouring total abolition,
states. that if total abolition is not conceded, the extreme
penalty should be reserved only for the following offenc-
es?---

"(a) Cold--blooded pre~planned murders for sordid
gain, specially of children, women, inﬁrm and old per-
sons.

(b) After satisfying sexual lust, murder of the
victim of rape;

(c) Murder for hastening succession or obtaining
riddance from an uncongenial spouse;

(d) murder falling under section 194, second para.
and under section 396, I.P.C.;

(e) high treason, passing to the enemy secret in-
formation to the detriment of India or otherwise aid-
ing the enemy of the country;

(f), where the accused has, taking undue advan-
tage, acted in a cruel, unusual and revolting manner
shocking to human feelings".

621. A District and Sessions Judge in the State of
Maharashtra' has also suggested codiﬁcation.

I Law Secretary to a State Government, S. No. 162.

2. A Member of a State Legislature, who is also an Advocate under ques-
tion 5, S. No. 226.

3 Under questions 5, 6 and 7, S. No. 305.

6 4 A District and Sessions Judge under questions 4 I0 7, S. No.
34 -



198
His suggestion is this--

"I think that imposition of capital sentence should
be made compulsory in certain categories of crimes
which are at present punishable with death. The cate-
gories of crimes indicated in section 5 of the English
Homicide Act, 1957 and which are punishable with
death under Indian Penal Code may be taken as offen-
ces for which sentence of hanging should be the capital
sentence. So far as the remaining categories of the
offences punishable with death under the Indian Penal
Code are concerned, certain uniform principles should
be laid down in the matter of the imposition of the
sentence. Where the murder is premeditated cold
blooded and brutal such as where the offence falls
within the ambit of paragraph 1, or paragraph 2 of
section 300 Indian Penal Code, capital sentence should
be the normal sentence.

"Where the offence of murder falls within the ambit
of paragraph 3 or paragraph 4 of section 300 of Indian
Penal Code, then the lesser sentence should be impos-
ed.".

622. One District and Sessions Judge has stated' that
the vesting of discretion is necessary, but that the provi-
sion is not working satisfactorily, and that for the exercise
of discretion, some broad principles by way of illustrations
or illustrative cases may be appended to the relevant sec-
tions. The reply, while enumerating some of the conside-
rations which usually weigh with the court, takes care to
emphasise that it is not possible to attempt an exhaustive
enumeration of these considerations.

622. One District and Sessions Judge has stated' that
policy of the law can be laid down, though an exhaustive
codiﬁcation cannot be attempted; the reply gives (i) ex-
treme youth and (ii) grave provocation which is not sudden
provocation, as examples of the considerations to be taken
into account. An eminent member of the Bar has also'
suggested, that while the discretion should remain unfetter-
ed, it would be useful to lay downthe general policy of the
law, though the considerations cannot be codiﬁed. Another
reply" suggests that in the case of a conviction under sec-
tion 302, Indian Penal Code read with section 34 or sec-
tion 149, Indian Penal Code, the normal sentence should be
death, in the absence of extenuating circumstances.

1 Reply to questions 4 and 5, S. No. 570.
2 A Bar Council, S. No. 159.
3 An eminent Member of the Bar, through the Bar Council of India,

.S. No. 16x.

4 A District and Sessions Judge, Guiarat State, S. No. 212.



199

624. The reply of a High Court Judge' is as fo1lows:--«
"The considerations should be--
In murder cases--
(i) where the offender is under eighteen
years of age;
(ii) if an offence under the fourth clause

of section 300, Indian Penal Code, when there
was no intention to commit murder;

(iii) the murder, though intentional, hav-
ing been committed without premeditation
and in the heat of passion, without brutality;

(iv) the murder having been committed
under grave provocation, the provocation not
being both grave and sudden so as to reduce
the offence to culpable homicide not amount-
ing to murder;

(v) reasonable doubt as to the sanity of
the offender, at the time of murder actual
insanity not being proved; ' '

(vi) where munder has been committed by
more than one person--on the person who did
not take a principle part in the murder.

I do not aspire to be exhaustive, but these are the
few I can think of at the moment. I do not ﬁnd any
difficulty in amending the Indian Penal Code accord-

ing1y.".
625. The reply of a member of a State Legislature" sug-
gests the following considerations:--

(a) the circumstances of the murder, if the mur-
derer was forced to commit the murder;

(bl the nature and character of the murderer, if
there is enough ground to believe that it was commit-
ted only by accident and the murderer will repent and
prove to be a good and peaceful citizen;

(c) the provocation was of a nature which could
not be tolerated.

626. The reply of a Member of a State Legislative Coun-
cil" is as :Eo1lows:---
"The following considerations, inter alia, should
weigh with the court in awarding the lesser punish-
ment of imprisonment for life-

(a) Whether the offence was pre-meditated,
calculated, in cold blood and of malice afore-
thought or deliberate and very heinous;

I A High Courim]u'ige,Wiirniier question 5, S. No. 316.
2 A Member of a State Legislature, S. No. 243.

3 Member of a State Legislative Council, who is also an Advocate
under question 5, S. No. 257.

15-122 M of Law



200

(b) Whether it was a crime of passion, sudden
and unprovoked case of revenge for deep personal
injury to one's prestige, honour and reputation;

(c) offence committed in self-defence;

(d) the impact of the sentence on the depend-
ents of the offender;

(e) other humanitarian and psychological con-
siderations. All these considerations can be codi-
ﬁed but with ultimate analysis initiative and dis-
cretion of the Judge and the jury cannot be com-
pletely bound and limited".

627. The reply of a District and Sessions Judge deals
with the matter in detail1:----

"In suitable cases, the Court may award the lesser
punishment of life imprisonment, but what is a suitable
case is within the court's discretion which must, of
course, be exercised judicially and not arbitrarily or on
irrelevant considerations. The conduct of the murder-
er, the nature of the temptation to which he yielded
and the manner in which the crime Was committed are
some of the considerations which will weigh with the
court. It is not possible to codify these considerations.
Codiﬁcation would make the law rigid which is not
desirable. Some of the considerations which should
weigh with the court in awarding the lesser punish-
ment are noted below:--

(i) immaturity of mind, as might be seen in
youth or persons of retarded mental development;

(ii) degeneracy of mind, as might be seen in
extreme old age or in neuropathic or psychopathic
persons who are not deﬁnitely insane;

(iii) undue inﬂuence of a person in authority,
though not amounting in law to coercion;

(iv) where there is a doubt as to the sanity of
the accused at the time of the offence, actual sanity
not being proved;

(v) where _the_murder is committed under
provocation which is grave, though not sudden; or
1S sudden though not grave; or is neither;

(vi) where the murder was committed due to
frustration in love;

_ (vii) minor degree of participation in the
crime e.g., where incomplete knowledge of com-
mon purpose existed or where the part played in
carrying the crime into effect was a minor one;

1' A District 3211 Sessions Jzuigs, uridcr question 5, S. No. 429.



201

(viii) where the murder was committed in a
state of intoxication;

(ix) murder to avoid some imaginary mishap
due to some superstitious belief such as witchcrait;

(x) murder on the spur of the moment on a
sudden quarrel without pre-meditation;

(xi) where the corpus delicti is Wanting;

(xii) where there is no motive disclosed for
the crime, or the motive is to conceal one's shame,
e.g., murder of a new-born illegitimate child;

(xiii) where considerable time has elapsed
since the crime and the oﬂiender has behaved Well
during that time;

(xiv) where the offender has voluntarily made
a clean confession of his guilt at the earliest oppor-
tunity.".

628. Another reply states(', that though it is not possible
to codify the considerations, yet the position can be broad-
ly stated thus:--

The death sentence be given in cases of--
(a) murder for gain;
(b) dacoity with murder;
(c) cool calculating diabolical murders.

TOPIC NUMBER 32(c)
C0nc1.usi.on regarding codiﬁcation of considerations

629. Having considered the matter in all its aspects, we Conclusion
have come to the conclusion that it is not possible to codify Eegilrdins
the various considerations which weigh or should weig (',§'dgg°,';'i',§':'r'a_
with the court in the exercise of the discretion. There are uons_
circumstances which should never be taken into account,
but they cannot be exhaustively enumerated. There may
be circumstances which, when taken into account along
with other circumstances, may suffice; but they cannot be
exhaustively enumerated. Lastly, there may be circums-
tances which are by themselves sufficient, but they cannot
also be exhaustively enumerated.

Most of the replies received to the question on the sub-
ject* also take the same view.

630. Further, the exercise of the discretion may depend
on local conditions, future developments, evolution of the
moral sense of the community, state of crime at a particular
time or place and many other unforseeable features. In

I A District and Sessions Judge, under question 5, S, No, 359,
2 See summary of replies to question 5.



Apprehen-
sion about
discretion.

202

short, codiﬁcation of these considerations may, if attempt-
ed, be too wide and too narrow at the same time.

631. We do not, therefore, recommend any Change in
the law on this point. A "codification". which does not pur-
port to be exhaustive, would not be of much value, and a
codiﬁcation which purports to be exhaustive may be rigid
and give rise to difficulties.

TOPIC NUMBER 33

Apprehension about discretion

632. The apprehension expressed in some of the replies,
that the leaving of the discretion to the Court makes the
actual event arbitrary, does not seem to constitute a very
strong argument. In the ﬁrst place, the -discretion is ex-
ercised, and expected to be exercised judicially, and not on
whim or caprice. In the second place, if in a particular
case a miscarriage of justice occurs by reason of the
improper exercise of the discretion, the High Courts would
always be there to correct such miscarriage. Thirdly, it
may be pointed out that even in England the Royal Com-
mission did not favour the position then existing, under
which the sentence of death was mandatory for murderl.

633. As was observed by Lord Halsbury L. C."-

"An extensive power is conﬁded to the justices in
their capacity as justices to be exercised judicially;
and "discretion" means when it is said that something
is to be done within the discretion of the authorities
that that something is to be done according to the rules
of reason and justice, not according to private opinion";
according to law, and not humour. llt is to be, not
arbitrary, vague and fanciful, but legal and regular.
And it must be exercised Within the limit, to which an
honest man competent to the discharge of his oﬁice
ought to conﬁne himself".".

634. If, therefore, a discretion is to be left, it should be
a real and effective discretion, not trammelled by condi-
tions laid down for all times, all places, all offences and
all offenders.

1 RC. Report, page 214, paragraph 611.
2 Sharp v. Wakeﬁeld, (x391) A.C. 173, :79 (H.L.).
3 Racine': case, 5 Pep. me. a.

4 Witness v. Raszali Al. T.R. at page 757,



203

CHAPTER VIII
CATEGORIES OF MURDERS
TOPIC NUMBER 34 (a)
Division of mwrders----introd1ictory

635. VVG have next to consider the question whether it is Division of
p")s':1ible to divide murders into different categories'. The murders-
question is an important one. The movement for abolition tI(')'r"°d"°'
of capital punishment has induced many persons to think '
of a formula which would, at least. reduce the number of
capital murders to the minimum.

TOPIC NUMBER 34 (b)

Categories of murder-----Gene'ral discussion, and Homicide
Act, 1957

636. Several attempts have been made in the past to Introductory.

sub-divide murder into various degrees, according to the
severity of the act, and to regulate punishment for it. It
would be of interest to note these attempts, and to ﬁnd out
whether it is possible to arrive at a satisfactory sub-divi-
sion.

637. In England, the Royal Commission on Capital 1866. Com-
Punishment of 1866 suggested the following formula''', for T313510"-
"ﬁrst degree murders", which would be capita1:--

(a) All murders deliberately committed with ex-
press malice aforethought, such malice to be found as
a fact by the jury;

(b) All murders committed in or with a View to
the preparation or escape after the perpetration or
attempt at perpetration of any of the following felonies
----murder, arson, rape, burglary, robbery, or piracy.
The remaining murders would be second degree mur-
ders and non-capital. Some legislative proposals were
introduced after this Report, but they did not become
law. '

638. A number of Bills. under the title "Murder Law Subsequent
Amendment Bill" or "Homicide Law Amendment Bill", etc. B'.u5- Cr".
Were later introduced in 1867, 1371, 1377, 1878 and 19083, in '§;ﬁa' l""'°°
England. It is unnecessary to go into details, but speaking '
roughly, in most of these cases the test was deliberate ire
tention or association with other offences, or murder
in the course of escaping from arrest, or murdering a
constable, etc., acting in the discharge of his duty.

I On certain proposals for such a categorisation, the Law Commission
sent an interim note to the Ministry of Home Aﬁairs in December, 1962.
See paragraph 4, supra.

2 Cited in R.C. Report of 1953, page 470,

3 See R- C. Report, pages 470. 471 for details.



Criminal
Justice Bill,
1948.

Position in
other coun-
tries---
France.

204

639. The Criminal Justice Bill, 1948, as sought to be
amended by the Government amendment may, however,
be considered in detail. (This Bill, originally, contained
no provision for the abolition of death penalty, though it
was expected that it would contain such a provision in View
of the resolution passed in the Commons in 1938. The Bill
was introduced in October, 1947, and Mr. Sydney Silver-
man, in March, 1948, moved a new clause proposing the
suspension of capital punishment for an experimental
period of ﬁve years in the case of death penalty for mur-
der. The clause was approved by the Commons, though
not by the Lords, and the Bill came back to the Commons.
Government, thereupon, thought of a compromise, and
presented its proposal to the House of Commons through
the Attorney--General, Sir Hartley Shaw crossl). Brieﬂy
the Government proposed to maintain the death penalty
for murders committed during certain speciﬁed offences
(robbery. burglary and housebreaking, wounding or inﬂict-
ing grievous bodily harm by three or more persons acting
in concert, crime committed by means of explosives or
other destructive substances, rape or indecent assaults on
females and sodomy and indecent assaults on males and
also murder committed in the course of systematic adminis-
tration of poison or abnoxious substances or for resisting
or avoiding arrest, etc., or by a prisoner on a prison officer,
or murder by a person previously convicted of murder). In
these cases, the murder was capital, and in other cases,
the sentence was imprisonment for life. The clause was
passed by the Commons. In the House of Lords, Lord
Chancellor Viscount Jowitt supported the clause, and
argued that capital punishment could be justified only if it
helped to prevent murders, and the cases for which the
death penalty would be retained in this proposal were those
where it was believed that it acted as a deterrent. The
basis was deterrence rather than some other criterion, such
as pre-meditation or degree of moral guilt? The clause.
however, met with strong opposition, and was described
as a "Murderers Code" and dubbed as "illogical", and was
ultimately deleted by a vote of 97 against 19 in the House
of Lords.

640. In some countries in Europe certain forms of inten-
tional homicide are regarded as more heinous and punish-
able by death instead of imprisonment for life. As a ty i-
cal example may be cited the law in France? Murcljer
(meurtre) is deﬁned in Article 295 of the French Penal
Code as homicide committed intentionally.

I See Elizabeth Turtle, " Crusade against Capital Punishment" (I961)
pages 55, 62.

2 Parliamentary Debates, Lords, Vol. 157 (July 20, 1948), Columns 1006,
1007, Icr3 : See also Elizabeth Turtle " Crusade against Capital Punish---

ment" (I96I), page 79.
3 See R. C. Report, page 443, and also page 437, paragraph 12 (6).



205

(Hi. The following forms of intentional homicide are
punishable in France by death:--

' (i) "Assassinat"----lVlui-der committed with premedi-
tation or by lying in wait (Articles 296 and 302.,
b'rencli Penal Code).

(ii) Murder accompanied by torture or barbarity
(Article 303, French Penal Code).

(iii) Murder preceded, accompanied or followed by
another felony (Article 304, French Penal Code).

(iv) Murder of a magistrate, public officer, police
oilicer or person performing some public duty, if he is
assaulted in the exercise of his duty or on the occasion
of it (Article 233, French Penal Code).

(V) "Parricide"--murder of a father, mother or
ancestor (Articles 299 and 302, French Penal Code).

(vi) Murders the purpose whereof is to prepare,
facilitate or commit a misdemeanour or to further the
escape, etc., of a principal or accessory to the mis-
demeanour (Article 304, French Penal Code).

(vii) "Poisoning", (deﬁned as any attempt on the
life of a person by means of any substance which can
cause death more or less quickly, irrespective of the
manner in which the substance was used or adminis-
tered or the result of its administration) (Articles 301
and 302, French Penal Code).

642. In several States in the United States of America} U.S.A.
murder has been classiﬁed into degrees. While the punish-
ment for "ﬁrst degree murder" is death or imptisonment
for life. that for second degree murder is imprisonment for
life (or a lesser period. in some cases). As an example, may
be Quoted section 47Cl of the Penal Code of Pennsylvania,
undrt' which all murder which should be perpetrated by
niean: of poison or by lying in wait or by any other kind
of wilful, deliberate and premeditated killing or which
shall be committed in the perpetration of or attempting to
perpetrate any arson, rape, robbery, burglary, or kidnap-
ping, shal1 be murder in the first degree.

643. The division of murder into capital and non-capital Canada.
has been recently adopted in Canada."

644. In Australia, two states----Queensland and Western Australia.
Australia--~appez--;r to have divided murder into degrees
We may take, as an example, section 278 of the Western

I For details, See R. (I. Report, table given at page 442, and text at pages
439-"-H1

2 See se:€,imt-3 :11'-°;\ 'll'-ll 2':-'~. Criminal Code oF Canada. asnmended in
1961.

3Detailc-ii discussion of Lit; L'2n2.}iun Act will he in pziiagxapli 650 et
seq.



Royal Com-
mission.

206

Australia Criminal Code, which deﬁnes wilful murder as
fol1ows:--
"278. Except as hereinafter set forth, a person who un-
lawfully kills another, intending to cause his death or
that of some other person, is guilty of wilful murder."

Murder is deﬁned in section 279. Under section 282 (as
amended by Act 28 of 1961), in the case of wilful murder,
the penalty must be death, while in the case of murder, it
is imprisonment for life.

645. The scheme of division was considered, but rejected
after discussion in New Zea1and,1 when the Bill which led
to the New Zealand Crimes Act 1961 was under considera-
tion.

646. The Royal Commission on Capital Punishment exa-
mined this question? very carefully, and ultimately came
to the conclusion, that while the introduction of degrees of
murder in some countries had resulted in limiting the appli-
cation of capital punishment and had for this reason com-
mended itself to the public opinion, yet there were a num-
ber of practical difficulties, and that juries often refused to
give a verdict of murder in the ﬁrst degree even in clear
cases, and instead returned a verdict of murder in the
second degree?' The Royal Commission noted that it
would be impracticable to deﬁne a class of murders in which
alone inﬂiction of death penality is appropriate, and
recorded that the great majority of witnesses of all profes-
sions were ﬁrmly opposed to degrees of murder. Regard-
ing the tests adopted in other countries, its views were as
follows:

(i) Pre-mjeditations.--Impulsive killing does not
present any stronger case for mitigation than homicide
committed after genuine internal struggle in response
to a strong provocation.' What time should have
elapsed to bring a case of pre-meditation is also a mat-
ter of controversy, and the problem where a line can
be drawn between pre-meditation and mere intention
could not easily be resolved.5

(ii) Categories of murders as contained in the Cri-
minal Justice Bill, 1948.-«The classiﬁcation of murder
by categories would produce anomalies, as in the Com-
promise clause in the Criminal Justice Bill, 1948. The
murder of a Prime Minister by a fanatic may be as
atrocious as the murder of a policeman, yet the former
was excluded and the latter included in the Bill.

rNew Zealand, Parliamentary Debates, (House of Representatives),
328 pages 2206, 2210, 2190.
2R_C_ Report, paragraph 485----534.

VG

Conclusion in paragraph

'3 R.C. Report, paragraph 532, regarding position in U.S.A.
4 R.C. Report, paragraph 500.
5 RC, Report, paragraph 50!.



207

(iii) Provision in the Indian Penal Code.--The
difference between murder and culpable homicide,
given in the Indian Penal Code--(apart from the ex-
ceptions given in section 300) ,---rested on a distinction
far too subtle and reﬁned to constitute a just criterion
of liability to suffer capital punishment, particularly,
in England where the distinction would have to be
applied by the jury}

(iv) Intent to Kill.--Whether death results from a
direct intention to kill or from a wilful act of which
death is a probable consequence, should not make a
diﬁerencc. "It is the wilful exposure of life to peril
that constitutes the crime." Moreover, for practical
purposes one cannot make a distinction between (i) a
man who shoots through the head for killing, (ii) a man
who strikes a violent blow with a sword, and (iii) a
man who, for some object of his own, to stop a railway
train, contrives an explosion of gunpowder under the
engine, hoping that death may not be caused, but
determined to effect his purpose whether it is so caused
or not".

647. Though the Royal Commission had not favoured the
division of murder into degrees? the Homicide Act, 1957,
adopted" a different course by providing (in sections 5 and
6) that only certain murders shall be capital murders.
Under section 5(1), the following murders are capital,
namely:--

(a) any murder done in the course or furtherance
of theft;5

(b) any murder by shooting or by causing an ex-
plosion;

(C) any murder done in the course or for the pur-

pose of resisting' or avoiding Or preventing a lawful
arrest or of effecting or assisting an escape or rescue
from leval custody:

(d) any murder of a police officer acting in the
execution of his duty or of a person assisting a police
officer so acting;

(e) in the case of a person who was a prisoner at
[be time when he did or was a party to the murder.

1 RC, Report, paragraph 511.
2 R.C. Report, paragraph 470, the discussion is under deﬁnition of murder
but is relevant.
3 R.C. Report, page 173 er seq. paragraph 173 ez seq. and page 189, para-
graph 534.
4The relevant provisions of the Homicide Act, 1957 have been tempo-
rarily repealed by the Murder, etc., Act, 1965.
For an interesting case as to the meaningiofﬁthc expression "in course
of". see R. V. inner, (1959) I All. E. R. 4.1:. (L.Li.A.) and criticism thereof
(1959) 22 l\«loo'=:ri1 Law Review 426.

The Homi-
cide Act.



208

any murder of a prison ofﬁcer acting in the execution
U: his duty or a person assisting the prison officer so
acting.

Fﬂther. a it-:=rs0n Who after a conviction for murder, is

L

again convicted of murder, is sentenced to death.

S"ction 5(2) contains special provisions dealing with
case; where more than one person is Concerned in a
homicide}

643. The various categories may be explained." Cate-
gory (a), relating to theft, seems to have been suggested by
the clause which was proposed to be introduced as the Gov-
ernment amendment to the Criminal Justice Bill, 1948 read
with the Schedule thereto3, under which, inter alia, a mur-
dsr committed in the course of or immediately before or
after and in connection with the commission of the offence
Sf robbery, burglary, etc., was to be punishable with

eath.

Category (b) relating to shooting or explosion seems to
have been suggested by the compromise clause of the Cri-
minzzl Justice Bill, 1948 read with the Schedule (item 4)
which relates to explosives and other destructive substances.

Category (c) relating to resisting arrest, etc., might have
been suggested by the provision proposed in the Murder
Law (Amendment) Bill, 1867 [clause (d)]." Compare also
the provision in the compromise clause in the Criminal Jus-
tice Bill, 1948 on the subject.5

Category (d) relating to murder of a police officer can
be traced to the Murder Law (Amendment) Bill, 1877, the
Homicide Law (Amendment) Bill, 1876 and also the com-
promise clause in the Criminal Justice Bill, 1948.4

Category (e) relating to murder of a prison officer can
be traced to the compromise clause in the Criminal Justice
Bill. 1948.

(These details have not been given in the Explanatory
Memorandum to the Homicide Bill. The Explanation re»
lating to clause 5 merely recites the provisions of the
clause.7)

I See also paragraph 96, supra.

2 Paragraph 647, supra.

3 Sec R.C. Report, pages 471' and 473, where the Bill of 1948 is
reproduced.

4 .§':c R.C. Report, page 470, where the Bill of 1867 is reproduced.

5 1812.4 R.C. Report, page 471, where the Bill of 1948 is reproduced.

6 Sec R. C. Report, pages 470 and 471, where the various Bills are re-
pro.luccti.

7 Fir g:'1.'r3.l criticism, sec §ilv3rman, l'arliarnci1triry Debates (C)
moms) Vol. sou ani Elia-.1'.ae;l1 Turtle, " Crusaic against Capital l'uz'.'i. -
mcnt" (1961), page 130.



209

649. The classiﬁcation of murder made in the Act cannot cmjcjsm of
be regarded as completely above criticism. Certain the provision
methods of rnurtier have been picked and chosen, but  .".'§
others have been left out. A person who uses a poison, a A§,'_"'°' 6
knife, or strangulation or other means, to commit a murder
cannot be sentenced to death. Murderers can thus "choose
their weapons" carefully to avoid capital punishment. For
example, Ruth Ellis, hanged in July 1955 for shooting her
faithless lover, would, if she had merely used a hatchet and
committed the offence after 1957, have escaped capital
punishment under the new Act}

Again, the words "in the course of or furtherance of"
in section 5(1)(a), Homicide Act, may raise minute and
diﬁicult questions. Brutal attacks on defenceless young
girls and boys in the course of rape or other sexual offences
would escape the capital sentence, and as has been said,
"It is a sad reilection on the values of our society that we
rate the protection of private and public property from
theft more highly than the protection of the lives of chil~
dren and young women"? Lord Goddard, in his criticism
of the 1948 Bill, pointed out an anomaly} that a murderer
entering a house through an open door would not be guilty
of a capital crime, whereas one who opened the door,
though unlocked, would have committed capital murder,
because in the latter case there would be hOuse--breaking.

650. It may be useful to discuss here the scheme recently Position in
adopted in Canada. Though the Canadian Committee4 did Canada-
not favour the suggestion to divide murder into degrees,
and shared the conclusions of the United Kingdom Royal
Commission on this point, yet, by the amendment to the
Criminal Code of Canada, which was assented to on the
13th July. 1961, a division of murder into capital and non-
capital has been introduced by new section 202A. Under
section 206 of the Criminal Code of Canada, as amended, a
person who commits "capital" murder, shall be sentenced
to death, while a person who commits non-capital murder,
shall be sentenced to imprisonment for life. (A person who
is under the age of 18 years, even though he commits a
capital murder, is to be sentenced only to imprisonment for
life).

6531. Murder is thus deﬁned in Canada5 2--

"202. Murder in commission of oﬁ"ences.~Culpable
homicide is murder where a person causes the death of

I See Russell on Crime (1964), Vol. I, pages 555 to 557.
2 See the note by J.  Hall Williams in the Appendix to Elizabeth
Turtle " Crusade against Capital Punishment", (1961), page 159.

3P:ir1iamentary Debates, Lords. Vol. 157 (July 20, I948) Columns
1030,, IP34, cited in the "Crusade against Capital Punishment" (1961),
page So.

4 Cmiadiaii Report, page 17, paragraph 70.

5Section 202, Criminal Code of Canada.



Classiﬁcation
of murder.

210

a human being while committing or attempting to com-
mit treason or an offence mentioned in section 52,
piracy, escape or rescue from prison or lawful custody,
resisting lawful arrest, rape, indecent assault, forcible
abduction, robbery, burglary or arson, whether or not
tilfle person means to cause death to any human being,
i

Intention to cause bodily harm.

(a) he means to cause bodily harm for the
purpose of--

(i) facilitating the commission of the
offence, or

(ii) facilitating his ﬂight after committing
or attempting to commit the offence, and the
death ensues from the bodily harm;

Administering overpowering thing.

(b) he administers a stupefying or overpower-
ing thing for a purpose mentioned in paragraph
(a), and the death ensues therefrom;

Stopping the breath.

(c) he wilfully stops, by any means, the breath
of a human being for a purpose mentioned in para-
graph (21), and the death ensues therefrom, or

Using weapon.
((1) he uses a weapon or has it upon his per-
son----

(i) during or at the time he commits or
attempts to commit the offence, or

(ii) during or at the time of his ﬂight after

committing or attempting to commit the

offence, and the death ensues as a conse-

quence.". t

"Capital murder" is dealt with in section 202-A of the

Criminal Code of Canada,' quoted below:----

"202A. (1) Murder is capital murder or non-capital
murder.
(2) Murder is capital murder, in respect of any per-
son, where-
(a) it is planned and deliberate on the part of
such person,
(b) it is within section 202, and Such person-
(i) by his own act caused" or assisted in
causing the bodily harm from which the death
ensued.

I Section 202A, Criminal Code of Canada.
2 Emphasis added.



211

'(ill by_his otun act administered or assist.
ed in administering the stupefying or over-
powering thing from which the death ensued,
' ~(ii.i) by his own act stopped or assisted
in the stopping of the breath from which the
death ensued,

(iv) himself used or had upon his person
the weapon as a consequence of which the
death ensued, or

(v) counselled or procured another person
to do any act mentioned in sub--paragraph (i),
(ii) or (iii) or to use any weapon mentioned in
sub-paragraph (iv), or
(c) Such person by his own act

assisted in causing the death of

(i) a police officer, police constable, con-
stable, sheriff, deputy sheriff, sheriff's_, officer or
other person employed for the preservation and
maintenance of the public peace, acting in the
course of his duties, or

(ii) a warden, deputy warden, instructor,
keeper. gaoler, guard or other ofﬁcer or perma-
nent employee of a prison, acting in the course
of his duties, or counselled or procured another
person to do any act causing or assisting in
causing the death.

(3) All murder other than capital murder is non-
capital murder.".

652. In the New Zealand Crimes Act} sections 167 and
168, the elevation of the crime of culpable homicide into
murder has been made to depend on two alternative cri-
teria. namely, either the subjective element (intention to
cause death, etc.) dealt with in section 167, or, irrespective
of whether the offender means death to ensue or knows
that death is likely to ensue or not, if he means to cause
grievous bodily injury for facilitating commission 0)' cer-
tain offences, or if he administers any stupefying or over-
powering thing, or wilfully stops, the breath of any person
for these purposes. These provisions, however, stand on a
different footing from the scheme on which the English Act
is based, because. under the New Zealand provisions, the
sentence of death is abolished for murder and, therefore.
the falling of a case in one category or the other of murder
does not make any difference in the sentence by itself.

In fact, in the Bill introduced in New Zealand, a scheme

for division of murder into capital and non-capital seems
to have been embodied, but the scheme was dropped later?

caused or

I The (blew Zea1and'i>CIrimes Act, 1961.

2 See speech of Hon'b1e]. R. Hanan (Attorney-General), New Zealand
Parliamentary Debates. House of Representatives. Vol. 328. 3rd October,
1961, pages 2684 and 2685; and 12th October, i961, page 2990, voting on
clause 172 .

Non-Capital
.nurd er.



212

f?1%fll1'"ll;.d[Cd 6:33. The Cl1{ll.,l5'\. :13 it stood in the New Zealand Bill is
' ' quoted below :--

"167. Culpable homicide is aggravated murder in
each of the following cases:--

(a) if the offender means to cause the death of
the person killed or any other person and the kill-
ing is planned and deliberate;

(b) 1f the offender means to cause the death
of the person killed or any other person, or means
to Cause to the person killed or any other person
any bodily injury that he knows to be likely to
cause death, and the act that causes the death is
done for the purpose of--~

(i) facilitating the commission of any other
crime; or

(ii) facilitating the ﬂight or avoiding the
detection of the offender upon the commission
or attempted commission of any other crime;
or

(iii) resisting lawful apprehension in respect

of any other crime".

654. (The penalty on conviction for aggravated murder
was to be deatliwunder clause 172--subject to consideration
by Executive Council, and subject to any recommendations
that might be made for the exercise of the Royal preroga-
tive of mercy.)

"168. Culpable homicide is murder in each of the follow-
ing cases:----

(a) If the offender means to cause the death of the
person killed;

(b) If the offender means to cause to the person
killed any bodily injury that is known to the offender
to be likely to cause death, and is reckless whether
death ensues or not.".

(The penalty for murder was not death, but life impri-
sonment under clause 172).

655. The scheme of division was referred to by
Mr. Hanan. Attorney General, in his speech on the ﬁrst
reading of the Crimes Bill, and even at that time he had
hinted at the amendment which would be introduced on
the subject. ie. an amc;1dncnt for cbolishing capital
punishment for murder? He explained. that the issue of

I See New Zealand, House ofRepresentatives, Debates. Vol. 328, page
2766.
2New Zealand, House of Represeiitativcs, Debates, Vol. 328, pag e

2206.



213

capital punishment was a very solemn and controversial
one, and the Biil made an attempt to resolve the issue by
prescribing the death penalty ior certain types 0;' murders.
He reierretl to the precedent of the English Act and the
amendments in Canada and pointed out that the Bill pro-
vided ior categories different from the English Act. "Under
the present Bill the types of murder singled out as calling
for the death penalty may brieﬂy be described as planned
murder, or murder committed in association with other
crimes. and, of course murder by a person who has pre-
viously been convicted of murder." His own views were
known on the subject. and he was opposed to capital
punishment for murder in any case. He did not believe
that it was possible to draft a compromise without leaving
serious ﬂaws. The clause in the Bill was probably the
best that had ever been attempted, but he did not wish to
discuss that now. He could also see one immediate diﬂ'i-
culty regarding planned and deliberate murder. A nice
point would arise in the legal sense as to at what point
in time a murder was planned.

656. In his speech on the second reading of the Bill,
Mr. Hanan dealt with in detail the scheme of division. and
pointed out that the clause dealing with aggravated murder
was based on the concept that there were murders which
shocked the public conscience and merited the death sen-
tence, and the clause was intended to embrace such crimes.
It would cover poisoners and robbers, and most cases of
rape where the victim was killed. It was much better than
the English provision, which had Worked out Very badly
in the United Kingdom. But he had some fundamental
objections. First, it did not deal with all types of murders
for which the people might feel that the death penalty is
the appropriate sentence, for example, a murder in a fit

of resentment of an unwanted child. or a cruel murder'

committed by a sadist on a sudden impulse for the pleasure
of seeing his victim suffer and die. Another objection was
that it would include "mercy killing" in the aggravated
category and also a planned killing of a deformed child by
its father. Thirdiy. in many cases, it would be dlfllCUl'l'. to
establish "planned" and deliberation when in fact it had
been so. If the clause became law, injustices as between
one murder and another would creep in, 'fdepending on the
evidence, the ability of the prosecutor. or the ability of the
defence". In America there had been trouble over pre-
meditation. Fourthly, the clause took into account the
circumstances of the murder only and ignored the history
and circumstances of the murderer. Factors other than
pre-meditation tended to lose their importance under the
clause. "It is not true that the measure of a murderer's
guilt is in the length of time he had murder in contempla-
tion." Finally. British law, as opposed to American law.
had always set its face against degrees of murder. There
seemed to be unanimity that the provision in the Homicide
.»'--.et. xshich Cl'_j.3'.';1"l('r'l f'_""-'' the traditional Biitisli pattern.



214

was a complete failure. The proposed compromise would
not work out in practice. The choice was, therefore, be-
tween abolition and retention} (He then went on to ex-
plain why he favoured abolition.)

657. Mr. l\/Iarshall, Deputy Prime Minister, defended the
provision in the Bill, and thought that the fear about its
operation was not justified. Though he favoured the law
as it stood, he believed that the compromise clause was
workable. As to killing of an unwanted child, he consi-
dered it unusual for the death penalty to be imposed in
such cases or in cases of sudden impulse. In such cases the
prerogative of mercy was exercised. In the case of_ mercy
killings, even though they would be planned and deliberate,
th, ;':':rc.gative of mercy would continue to be exercised.
The compromise was an attempt to meet the VIEW Of 91056
who felt that the present law went too far but who were
also unhappy about abolition. Stability in this branch of
the law was highly desirable, and he hoped that the clause
would be generally acceptable?

658. Mr. Nordmeyer, who was for total abolition, ex-
pressed the View that an attempt at compromise must
inevitably end in failure, as a very great deal would
depend upon the interpretation of the words in the statute,
and it may very well be that a person charged with aggra-
vated murder in one court under one Judge may have a
verdict of guilty brought in against him by a jury, While
another person charged with a fairly similar oﬁence might
have a verdict of murder not punishable with death. It
was very diﬁicult to have basic criteria which could sepa-
rate one case from another. He also referred to the diffi-
culty of deciding whether a crime committed after death
(of the victim) was a crime "for which" the murder was
perpetrated and would fall under aggravated murder?

659. Mr. Gotz, Minister of Internal Affairs, expressed
his preference for retaining the death penalty for murder.
As regards the scheme of division, he stated that the jury
could determine whether murder was premeditated or
not. but the society "would still have some protection
against brutal and horrifying murders" and (he hoped)
"against potential murders". There was weakness in every
compromise; but the death penalty should be kept at least
for those whose wild acts had caused them to "forfeit the
right to live?"

'17New Zealand, House of Representatives, Debates. Vol. 328, pages
2684 to 2687.

2.\Iew Zealand, House of Representatives, Debates. Vol. 328, pages
2697 to 2698. (He also stated his six reasons for retention, but that is not
relevant here).

3 New Zealand, House of Representatives, Debates. Vol. 328, pages
2699 to 2700.

4New Zealand, House of Representatives, Debates. Vol. 328, pages
2766 to 2767.



21.')

660. Mr. Harker stated' that the origin of the compro-
-mise clause was in the recommendation of the 1950 Com-
mittee. When the Bill reintroducing capital punishment
was brought in (in 1950) after an exhaustive enquiry, the
Committee recommended that the death penalty should
be inflicted only for the worst type of cases, and that is
what the proposed provision meant. There were types of
murders for which death penalty could not conceivably be
a deterrent, but there were other types of murders where
it certainly could be.

661. Mr. Hanan, (Attorney General), in his later
speeehz, opposed the scheme of aggravated murders, and
supported abolition in toto. He observed that it was
"inherently impossible to prescribe by law a formula that
will do ju::tic.e". There was no proof that capital punish-
ment could deter. The statistics did 11ot prove it one Way
or the other, and that is what the Attorney-General had
also stated in 1953 when introducing the Bill restoring
capital punishment. Hanging was a barbarous perform-
:ance, which ediﬁed no one and caused suffering to inno-
cent people?

662. After a long discussion, the scheme of division
was dropped, and the Bill was amended so as to remove
the death penalty for murder'. The scheme was negatived
'by 41 votes against 30. In consequence, original clause
170 relating to "Diminished responsibility" was deleted'.

TOPIC NUMBER 34 (c)
Replies to Question 6(a) (b)
663. Question No. 6 in our Questionnaire consisted of Replies to
two parts, and was as follows:-- Q"°5"°"

6 (a)(b).
''(a) Is it possible to divide murders into different
categories for the purpose of regulating the punish-
ment for murder?

(b) Is it possible to divide murders into two cate-
gories--
(i) murders punishable with death;
(ii) murders not punishable with death'?".

Part (a) of this question, it may be noted, deals
generally with the possibility of division of murders, while
part (b) deals speciﬁcally with the division of murders
into capital and non-capital.

1 New Zealand, House of Representatives, Debates. Vol. 328, page
2779, Ieft--h-and.

2New Zealand, Hsuse of Representatives, Debates, Vol. 328, page
2784, right-hand.

3 New Zealand. House of Representatives, Debates, Vol. 328, page
2784-2785. '

4New Zeal-and, House of Representatives, Debates, Vol. 328, page
2990.

5 Clause 170 (relating to Diminished responsibility) was, in substance,
he same as the provision in the (English) Homicide Act, 1947.

16-122 M of Law



216

664. Replies received on this question can be classiﬁed
into three groups----ﬁrst, those which take the view that a
division of murders is not possible; secondly, those which
take the View that such division is possible, but not desir-
able; and thirdly, those which take the View that such
division is possible, and have made sugestions as to the
scheme of division.

665. The ﬁrst two groups of replies naturally stop with
part (a) of the question because part (b) does not arise
in their case. So far as the third group of replies is con-
cerned, their general reply falls under-part (a), and the
scheme of division really falls under part (b).

666. The ﬁrst group comprises the largest number of
replies, and represents the opinion of the majority of the
State Governments, High Courts, High Court Judges,
Bar Associations, Bar Councils and individuals that have
sent replies to the Questionnairel. Some of the important
points made in these replies may be noted. Thus, it has
been pointed outz, that homicide has already been
divided into different categories under sections 302, 304
and 304A, Indian Penal Code, for the purpose of regulat-
ing the punishment. There are other exceptions provided
in the Code, under which homicide may be completely
justiﬁable in the circumstances of a particular case.
(Hence a further division is not required).

667. Most High Court Judges are opposed to any divi-
sion of murders into capital and non-capital, and are of

the view that such a division is neither possible nor

desirable?

Most District and Sessions Judges" are opposed to any
scheme of division of murder.

668. One of the State Governments' has pointed out
that it is well--nigh impossible to enumerate the various
types of murders in respect of which capital punishment
may be retained. There is always a chance of a certain
category of murders being left out without much justiﬁ-
cation, from the category of those for which capital punish-
ment may be retained. This, it is stated, is an additional
reason for retaining capital punishment for murders punish-
able under section 302 in the entirety, without making any

distinction between one type of murder and another for
the imposition of sentence.

I It is unnecessary to enumerate all of them.
2 A High Court Judge, S. No. 147.
3 High Court Judges, S. Nos. 230, 251, 3x6, 317, 393, 394, 396,

4 District and Sessions Judges, S. Nos. 352, 367, 373, 374, 376, 377,
378, 384, 385, 386, 388, 418. 4x9, 420, 42:. 423,424, 429, 437, 442.

5 A State Government. 8. N0. 182.



217

669. The Judicial Section of the Indian Ofﬁcers' Associ-
ation in a State1 has, while opposing the division of
murder, stated as foll0ws:---

"Categories . . . . ..can only be based on motives or
circumstances. The existing, law permits the motives
and circumstances to be considered and evaluated for
the purpose of exercising discretion in regard to
punishment. To categorise murders on the basis of
motives would almost require an impossible task of
judging evidence to ﬁnd out whether they are of the
categories laid down. Such categorisation would in-
troduce an undesirable element of vagueness, rigidity,
fanciful interpretations, etc.".

670. That no amount of categorisation can meet the in-
ﬁnitely varied situations and circumstances in which mur-
ders take place, has been stressed in another reply also'-'.
An eminent member of the Bar3 has also pointed out that
the scheme of the Indian Penal Code has been tested over
a long period of time and found satisfactory, and therefore
no change seems to be called for to make the distinction
envisaged by the question'. One danger of a rigid division
of murders has been pointed out in one of the replies5,
namely, once it is known to the criminal mind that certain
types of murders cannot be punished with death, then
the incentive to commit such murders will increase, and
at the hearing stage, items of evidence will be led to show
that though the case is one of murder, yet it is not a capital
murder. This, it is stated, will confuse the issue at sessions

trials.

671. We may, under this group, refer to the argument
put forth in the reply of a Government ofﬁcerﬁ. That
reply states that while it is never impossible to divide any-
thing into separate categories, the division of the offence
of murder would not be desirable. The case-law in this
context, it is pointed out, has developed on clear-cut lines
and continues so to develop. The scheme of the Indian
Penal Code, whereunder culpable homicide is ﬁrst de-
ﬁned, then it is laid down as to when culpable homicide
is murder, and, lastly, certain exceptions are laid down
which take the offence back within the fold of culpable
homicide, has been tried in the country for over a century.
The doubtful points have been clariﬁed by case-law to
such an extent as to make the scheme well-nigh foolproof.
The case-law can be trusted to give good and safe guidance

I S. No. 562.
2 A High Court, S. No. 187.
3 An eminent member cf the Bar, through the Bar Courcil of India. S
No. 161.
4 A Bar Council has also replied to he same eﬂect, S. No. 159.
X; Chief Justice of a High Court and a Judge of the High Court, S.No,
6 Law Secretary to a State Government, S. No. 162.



218

to the judiciary in determining whether' an offence is
murder, culpable homicide or a lesser offence. The law
laid down in clear and precise terms in Re): v. Govindo.'
still holds good. If this system is disturbed, confusion will
become the order of the day. Hence, the best course would
be to let murder remain murder, and to leave the severity
of the punishment to be decided by the court in accord-
ance with the principles. (The principles, the reply goes
on to state, should be stated with greater clarity).

672. A State Government? has pointed out, that the
variety of circumstances cannot be fully envisaged and
categorised.

673. Another State Government' has stated, that while
it may be possible to codify the situations and offences in
respect of which the death penalty ought to he mando-
tory or discretionary, in practice it will be Very difficult
of application.

674. It has beenstated in the reply of several District
and Sessions Judges" that it will not be possible to divide
murders into capital and non-capital.

675. The majority of the Presidency Magistrates in a
Presidency Town" are of the View that a division of mur-
ders would amount to hampering the discretion of the
courts, who have been exercising their discretion in the
matter of punishment in a judicious and appropriate man-
ner. "After all, the criteria for such. a division would be
either the method or the motive of murder, and both
would, in the ultimate analysis, be the very criteria which
will determine the sentence to be awarded even if there
are no two categories of murder"_

676. The second group of replies under this question
is a small one, which adds that the division of murder as
envisaged may be possible, but not desirable''--''.

Several replies fall in this groupgi-'-1°-"-'9.

1 Rex v. Gozrirzda, I.L.R. I 130m. 342.

2 S. No. 574.

3 S. No. 580.

4 S. No. 520; S. No. 524 5 S, No. 534 ; S. No. 535.

5 S. No. 549.

6 The Indian Federation of Women Lawyers, S. No. 92.
7 An Advocate (O.S.) Bombay, x, 8. Nos. 92 and 121.
8 A High Court Judge. S.N0. 393.

9 A very senior Advocate of the Bombay High Court, 8. No. 318.
13 A Member of a State Legislature, S. No. 249.

11 Law Minister of a State, S. No, 253.

12 S. No. 330.



219

677. This brings us to the third group, namely, those
who consider that the division of murder into categories
is possible, and have suggested an actual scheme of classi-
ﬁcation. It is not necessary to summarise each and every
reply on this point. But the replies mostly seem to fall
mainly under the categories detailed beloW:--

(i) Replies suggesting adoption of the Homicide Act

Certain replies have suggested that legislation on the
lines of the (English) Homicide Act, 1957, may be intro-
duced in India'-2-3-4.

(ii) Replies suggesting exhaustive scheme

An exhaustive scheme of 'categorisation of murders
into capital and non-capital has been suggested in one of
the replies5. That scheme is as follows :--

(a) For offences under section 303, Indian Penal
Code, death sentence may be obligatory;

(b) For offences under section 307, second para-
graph Indian Penal Code, sentence of death should
not be made obligatory when any hurt is caused.
Further, the previous sentence of imprisonment for
life should have been for committing a murder;

(c) Death sentence may be retained for offences
under section 121, 132, 194, second part, Indian Penal
Code;

(d) Death sentence may be retained for the fol-
lowing cases of murder under section 302, and abet-
ment of murder punishable with deatht----

(i) Murder of a woman after committing
rape on her;

(ii) l\/lurder in course of or in furtherance of
theft, robbery or dacoity of property;

(iii) Murder done in course of or for the pur-
pose of resisting or avoiding or preventing lawful

arrest or of effecting or assisting escape or rescue
from lawful custody;

(iv) Murder of a Public Oiﬁcer acting in the
execution of his duties or of a person assisting
a Public Oﬁicer so acting; »

(V) Murder of more than one person in course
of same transaction;

I All HTg"h"c*$L1£{*juage,"s. No.15.
2 (Reader in Criminal Law) under reply to question 3(a), S. No. 107
3 A (High Court) under question 1, S. No. 136.

4 The replies were received before the passing of the Murder (Aboli-
tion of Death Penalty) Act, 1965.

5 A State Law Commission, S. No. 101.



220

(vi) Murder by shooting or causing an ex-
plosion or by deliberately gruesome acts of tor-
ture or dismembering;

(vii) Murder by a person who has been once
convicted of murder and sentenced to imprison-
ment for life.

(According to this repliy, tﬁere are nof specialdreaszéns
for enerally prescribing eat sentence or mum er 0 a
persgn under 12 years, or for murder of a Woman or a
person under 18 years of age for depriving them of the
property on their person. Further, the reply states, police
ofﬁcers or prison olﬁcer should not be distinguished from
other public officers).

678. A somewhat similar reply has been received from
one oiﬁcer'.

679. The reply of a High Court Judge? is that the
normal rule for exercising the discnetion in respect of
sentence should be, that unless there are aggravating cir-
cumstances like the enormity of the crime, the sentence
of death should not be imposed. Further, if the normal
rule so suggested is adopted, munders should be so divided,
and, in that case, murders punishable with death would
be those only which are attendant with aggravating cir-
cumstances like the enormity of the crime, the murder
being cold-blooded and prernediated, accompanied with
unnecessary brutality, etc., or murders by a life convict
gndi -dacoity with murder under section 396, Indian Penal

o e.

680. The reply of the Law Minister of a State" is that
it is possible to divide murders into categories, and that
murders under sections 121, 132, 302, 303 and 396, Indian
Penal Code, may be included in the categories of murders
punishable with death. The reply states that the normal
sentence for murder should be imprisonment for life, and
it should be aggravating circumstances only that the court
should award the death sentence. The aggravating cir~
curnstances, it is stated should be---

(i) deliberate violence;

(ii) use of lethal weapons;

(iii) wanton cruelty and malignity;
(iv) treachery;

(V) nature of injury;

1 Home Secretary to a State Government, S. No. 131.
2 S. No. 397 (A High Court Judge), under Questions 5 and 6.
3(Law Minister of a State) under question 6-7(a) and 7 (I1), 5;_ No.
313-



221

(vi) motive;
(Vii) (murder of) a public servant in discharge
of duty; and
(viii) (murder) in course of jail breaking.

681. Some Members of State Legislatures have suggest-
ed schemes of division. Thus, it has been suggested', that
in murders punishable with death should be included
murders for gain and planned murders with conspiracy.

682. The reply of another Member of State Legislature?'
is that the division of murders into capital and non-capital
may be made on the following lines, that is to say--

(a) the circumstances of the murder, if the mur-
derer was forced to commit the murder;

(b) nature and character of the murder, if there
is enough ground to believe that the murder was an
accident and the murderer will repent and prove to
be a good and peaceful citizen; and

(c) the provocation being of a nature which could
not be tolerated.

(The intention seems to be that these cases should be non-
capital).

683. The suggestion of another Member of a State
Legislature3 is that murders may be divided into catego-
ries, and pre-meditated murders and group murders, and
dacoity combined with murders, should be punishable
with death.

684. Another suggestion is' that murders committed
out of provocation caused by some moral inﬂiction on the
murdeiser or persons near and dear to him, or murders
committed in self-defence or to save his family members
or to save his property, should be non-capital, and other
murders should be punishable with death.

685. Some District and Sessions Judges have suggested
a scheme of division. Thus, one suggestion" is that mur-
ders of heinous character and murders committed after
planning and cold calculations should be included in the
category of capital murders.

1 Member of a State Legislative Assembly, 3. No. 225.

2 Uilzr questions 5 and 6. Member of a State Legislature, S. No.
243.

3 Member of a State Legislature, S. No. 248.

4 Member of a State Legislature, under questions 5 and 6, S. No.
232.

5. A District anl Sessions Judge, S. No. 380.



222

686. The suggestion of a District and Sessions Judge'
is that the principle laid down in the Homicide Act: may
be followed, but one more category may be added, name-
ly, where murder has been committed by a murderer sent-
enced to life imprisonment, it should be a capital murder.

687. The suggestion of another District and Sessions
J udge3 is that of the four classes of murder mentioned in
the four clauses of section 300, Llndian Penal Code, the
sentence of death should be restricted to--

(i) cases under section 300, ﬁrst clause, because
it is always brutal and barbarous to intentionally kill
another;

(ii) to murder under the second, third and fourth
clauses of section 300, where the injuries caused are
brutal or the action is highly repugnant.

In other cases, the sentence of imprisonment for life should
be imposed.

688. Many other suggestions for division have been
received, for example, that heinous, cold-blooded, conspi-
ratorial murders for some selﬁsh wrongful gain, should
be capital murders".

(iii) Replies emphasising particular "types of murders
with reference to victims of connection with other
offences

639. Another suggestion5 is that murders punishable
with death would include dacoity with murder, rape with

murder, death caused by arson, murder of women and
children.

689. Another suggestion" is that murders punishable
with death would include premeditated and deliberate
murder, murder by ﬁre-arms and poisoning, and murder
of more than one person, but infanticide should be exclud-
ed. Another reply7 would include offences under sections
131, 132, 302, 303 and 396. Indian Penal Code, under the
category of capital offences.

I S. No. 443.

2 The Homicide Act, 1957.

3 A District and Sessions Judge, 8. No. 325.
4 An Advocate, S. No. 410.

5 S. No. 138.

6 A Bar Council, S. No 132.

7 A District Bar Association, S. No. 125.



223

U91. One replyl suggests a simple classiﬁcation, e.g.,

(1) voluntary murder with evil motive, (ii) accidental

anurder through negligence, (iii) murder for self defence,
and (iv) murder under provocation.

Another suggestion'-' is that if the death penalty is
to be retained at all, only murders under the following
categories should be punishable with death:--

(a) murders committed brutally without any
motive whatever by persons having sadistic nomicidal
tendencies;

(b) murders committed in cold blood and brutally
with a view to personal gain or connected with robbery
or dacoity;

(c) other cases of murders in furtherance of ven-
geance or spite of family feuds or deep rooted plans to
kill a person.

692. One State Government3 has suggested that the fol-
lowing should be non-capital murders not punishable with
death, and that other murders should be capital murders
punishable with death or imprisonment for life. The sug-
gested scheme is briefly as follows: --

(Non-capital murders as suggested in the reply
are---

(i) murders committed in the heat of passion
and without premeditation by normally law abid-
ing persons;

(ii) killing in pursuance of suicide pact;
(iii) mercy killing;
(iv) and the life.).

693. It has also been suggested4 that, for a conviction
under section 302 read with section 34 or section 302 read
with section 149, Indian Penal Code, and for cases where
murder is resorted to for the sake of robbery or dacoity or
rape or allied sex offences, invariably the sentence should
be the capital sentence, and for offences under sections 303,

305, 307 and 396, the minimum sentence should be capital
sentences.

(iv) Wilful or pre-meditated murders

894. In several replies, the test for imposing the death
sentence has been suggested as "wilful" murder or "inten-
tional" murder; or "premeditation5". In many other

 

I An Inspector General of Police, S. No. 166.

2 S. No. 21!.

3 A State Government, S. No. 129, under question 6 (b).
4 A District and Sessions Judge, Gujarat. No. 212.

5 A Pleader, Madras, S. No. 109 and an Inspector General of Police
5. No. 131.



Categories in
various rcp-
lies con-
sidered.

224

repliesl, premeditation along with other elements has been
taken as the basis for division.

695. One reply? suggests that categories of murder can
be made, and under munders punishable with death should
fall pre--planned and well-thought out brutal murders.

696. An additional Sessions Judge in the State of
Maharashtra3 has stated that section 304 of the Indian
Penal Code is enacted in the direction of division of mur-

der, and has given this suggestion:---

"Murder with rape, murder of women, murder
during dacoity, pre-meditated, cold-blooded murder
should be in the ﬁrst category. Others should be left
to the discretion of the court.".

(72) Classiﬁcation otherwise than on the lines of death
sentence

G97. One reply suggests' that murders should be divid-
ed into (a) murders punishable with imprisonment till
correction is achieved, and (b) murders punishable with
imprisonment for life.

(vi) Suggestions for further iiwestigation

698. A retired High Court Judge has5 suggested that
such division of murders is possible, and that Government
should appoint a committee to study the subject and con-
sider the changes made in various countries on this point.

(vii) Suggestion of the Bar Association of India

699. The reply of the Bar Association of India" has also
dealt with this point. The scheme suggested by it contem-
plates that the imposition of the sentence of death should,
(so far as murders are concerned), be conﬁned to pre-
meditated murders, murders in the course of dacoity, pre-
meditated murders under section 303, and attempt to
murder by a life convict.

TOPIC NUMBER 34 (D)
Categories suggested in the various replies considered.

700. We may consider Whether any of the suggestions
for division of murders can be adopted usefully.

I The Bar Association of India, S. No 183.

2 A District and Sessions Judge, S. No. 521.

3 S. No. 527.

4 .--\n inspector General of Prisons, S. No. 131.

5 A Retired Iudge of the Bomay High Court, 8. No. 95.

6 Reply of the Bar Association of India, S. No. 183, under questions,
rerd with questions 3 (a) and (b).



225

701. Some of the replies suggest a division more or less
similar to that embodied in the Homicide Act, 1957, which
has already been dealt with}. Others suggest their own
self-contained schemes for particular kinds of murders.
Of these, some emphasise the element of premeditation or
brutality. We deal with pre-meditation separately".

702. Some replies emphasise the element of association
with another crime, for example, rape, theft, robbery or
dacoity, while some combine these elements along with

special provisions regarding murder of public servants,

murder by shooting or explosion or torture, repeated mur-
der, and so on. We feel that all these suggestions are

open to the general objection, namely, that murder is a

complex crime comprising so many elements, and it is not
desirable to pick and choose only some of them as the basis
for the higher penalty, neglecting the others. There is
always the risk of certain categories of murder being left
out from the one or the other class. We cannot also over-
look the other danger, that once it is known to the criminal
mind that certain types of murders cannot be punished
with death, the number of such murders will increase, and
efforts will be made at the trial to show that the case falls
under the category of non-capital murder. True it is that
there is a natural desire to treat, as aggravated murders,
those which shock the public conscience; the inclusion of
the cruellest modes of killing in the category of capital
murders can be easily understood as the result of such
desire. Again, the need for protecting ofﬁcers concerned

with the maintenance of law and order, which lies at the

root of the proposals that would treat the murder of such
oiﬁcer as aggravated murder, is obvious. Next, the asso-
ciation of murder with another serious crime may, it is
understandable, justify the higher punishment, not only
on considerations of efficient enforcement of the criminal
law, but also as manifesting social abhorrence of the motive
in such cases.

703. But the fundamental objection still remains,
namely, that the inﬁnite variety of subjective as well as
objective elements,--the history of the offender, the cir-
cumstances of the offence, the motive with which the
offence was committed, the circumstances in which the
victim was placed and the 1ike,----cannot be compressed into
one single formula. To give undue importance to one and
to neglect the others would mean injustice, anomaly and
hardship in practice3. There might also be a yawning gap
in the categories when a situation occurs in real life, which
is not covered by the category of aggravated murder, and

I See paragraphs 647-649, supra.

_ 2 See discussion relating to pre-meditation, etc., paragraphs 706 -716
mfra.

3 See also discussion regarding questions 4 and 5, paragraphs 58o--585,
and 629-631 supra.



Conclusion
as to care-
gories of
murders.

Premedita-
non.

226

the law will be brought into disrepute. The Classiﬁcation
might cover situations which should not be covered, or
might leave ur.-covered situations which should be covered.
The former can, to some extent, be rectiﬁed by the exercise
of the prerogative of mercy; but the latter cannot be recti-
ﬁed, except by an amendment of the law.

TOPIC NUMBER 35
Conclusion as to categories of murders

704. The real difficulty is that there are not, in fact,
two classes of murder, but a variety of offences which
"shade off from the most atrocious to the most e:ccusable'."
Many factors have to be taken into consideration, and not
infrequently, a careful balancing of conflicting considera-
tions has to be undertaken. No amount of "verbal dexte-
rity" in the deﬁnition of the offence or of degrees of the
offence can surmount these diﬁiculties. However atrocious
or dangerous may be the generality of murders comprised
in a selected category, murders will occur from time to
time which fall within the category, but are so different
in character and circumstances from the generality of
murders belonging to the category that they cannot pro-
perly be classed as murder of the aggravated category?

705. Hence, the best course would be not to interfere
with the discretion of the Courts and with the scheme of
murder and culpable homicide as deﬁned in the Indian
Penal Code and as interpreted by Courts. The scheme is
both logical and clear, and has been in operation for over
a century without causing any serious /difficulty.

TOPIC NUMBER 36
Premeditatioizt

706. Whenever the question of minimising the cases of
penalty of death come up, a plausible test----premeditation--
suggests itself to the mind. It seems natural to assume
that if a murder is premeditated, the sentence of death
would be justified, and otherwise it would not be. The
test has, to some extent, been adopted in some States in
America as a basis for the sentence of death in case of
murder, either by itself or in conjunction with other ele-
ments. A typical example is the statute establishing
degrees of murder, enacted in 1794 in Pennsylvania, under
which all murders which shall be perpetrated by means of
poison or by lying in wait or by any other kind of wilful,
deliberate and premeditated killing, or which shall be com-
mitted in the perpetration of, or attempt to perpetrate,

I Cf. R. C. Report, page I74, paragraph 498, citing the view ofrhe
Home Office .

2 Compare the criticisms in the R. C. Report, page 176, paragraph 504
otthe categories given in the Criminal Justice Bill, 1948.



227

arson, rape, robbery or burglary, shall be deemed "murders
of the ﬁrst degreel" (attracting the death penalty).

707. This classification--deliberate and premeditated
killing as a 'first degree murder'----has been adopted in cer-
tain other States of America, with or without Variations?
Thus, in Massachusetts, "first degree murder" includes
"murder committed with deliberately premeditated malice
aforethought or with extreme atrocity or cruelty" or "in
the commission or attempted commission of a crime or
for example, France--murder committed with "premedita-
tion or lying in wait" is punishable with death, instead of
imprisonment for life"-4. Again, in some countries of
Europe"-" which have abolished the death penalty, impri-
sonment for life may be awarded for certain forms of inten-
tional homicide if the offender acted with premedttation
or if he committed homicide in order to facilitate or conceal
another crime, etc., while a lesser punishment is awarded
in other cases. In England, in 1866, a Royal Commission
was appointed to enquire into the provisions and opera-
tion of laws under which the punishment of death
was inflicted, etc. That Commission recommended the
division of murder into two degrees, on the model adopted
in certain States in the United States, and suggested that
the punishment of death should be retained for all mur-
ders deliberately committed with express malice afore-
thought, and for all murders committed in or with a View
to perpetration etc. of certain fe1onies7-3.

708. Judicial decisions in the majority of the States in
America, however, appear to have whittled down the
meaning of "premeditation" in this context, so that, in sub-
stance, intention to kill is now suﬂicient to constitute
murder in the ﬁrst degree. Actual deliberation and long

1 The section is quoted in R.C. Report, page 168, paragraph 486.

2 About 27 States, including Alabama. Arizona, Arkansas, California
Colorado, Connecticut, Idaho, Iowa, Kansas, Maryland, Mich'g2n. Missour
North Carolina, Rhode Island, etc., See Perkins, Criminal Law (1957), page
72 and foot-note 38.

3 See R. C. Report, page 182, paragraphs 518, 519.

4 The French provision is quoted in R. C. Report, page 443, paragraph
21 (c).

5 See summary in R. C. Report, page 180, paragrah 513.
6 See the provisions in Norway, Sweden, and Switzerland. cited in R.C
Report, page 444.
7 See R. C. Report, page 169, paragraph 488.

8 For details of this proposal, see R. C. Report, pages 467 to 471 (Ap-
pendix 12--Degrees of murder). The draft of the Royal Commission of
1866 is at page 470, ibid.



228

remeditatior; are unnecessar so lon as there was time
_ ' "
(however short) for these processes to occur1--~.

709. It will be sufficient to refer to the discussion in
what is regarded as the leading case on the Pennsylvania
statute".

"The intention to kill is the essence of the offence.
Therefore, if an intention to kill exists, it if wilful; if
this intention be accompanied by such circumstances as
evidence of a mind fully conscious of its own purpose
and design, it is deliberate: and if sufficient time be
afforded to enable the mind fully to frame the design
to kill, and to select the instrument, or to frame the
plan to carry this design into execution, it is premedi-
tated. The Law ﬁxes upon no length of time as neces-
sary to form the intention to kill, but leaves the exist-
ence of a fully formed intent as a fact to be determined
by the jury, from all the facts and circumstances in
the evidence.".

710. Sometimes a different View is taken'', namely, a
killing is deliberate and premeditated, only if it results
from real and substantial reﬂection. Even accord-
ing to this view, it is not necessary that deliberation and
pre-meditation must take place after the formation of the
intent to kill. If the offender has pondered over the possi~
bility of taking ar.other's life and has reﬂected upon this
matter cooly and fully before a decision is reached, he may
truly be said to have killed "wilfully, deliberately and
premeditatedly", though, after his intent to kill was fully
formed, he carried his'intention into effect as rapidly as
thought can be translated into action". What is required
is that the homicide must be intentional, that the intent
to kill must be formed by a mind that is cool rather than
one that is unreasonably inﬂamed or excited, and that the
thought of taking the victim's life must have been reﬂected
upon for some appreciable length of time before it was
carried into effect, although not necessarily after the fatal
decision was made".

711. It now remains to be considered whether "premedi-
tatjon" would be a satisfactory test for the award of the
highest penalty. There seem to be theoretical as Well as

I See Keedv. "History of the Pennsylvania Statute creating Degrees of
Murder", 97 University of Pennsylvania Law Review 759.

2 See also cases and literature cited in Paulsen and Kadish, Criminal
Law and its processes (1962), pages 558, 561.

3 Commonwealth v. Drum (1868) 58 Pa. 9.

4 See the cases cited in Perkins, Criminal Law (1957), page 75, footnotes
62 to 65. '

5 People v. Russo, 133 Cal. App. 468, 24 P 2d 580 (1933) § Perkins
Criminal Law (1957), page 76.

6Cf. Perkins, Criminal Law (1957), page 76.



229

practical objections of considerable weight to the adoption
of such a test.

712. Premeditation and deliberation as tests for impos-
ing the sentence of death have been regarded as unsatis-
factory in America'. The trend in several European coun-
tries'-' is towards discarding them. Difficulties of interpre-
tation, particularly in demarcating the respective areas
of premeditation and intention, are likely to be created if
they are adopted.

A criterion susceptible of such diverse and conflicting
interpretation ought not be made the basis for liability to
suffer death.

713. Moreover, these criteria may be inadequate
because, as was pointed out in the Home Office Memoran-
dum to the Royal Commission-3, among the worst murders
are some which are not premeditated, such as those com-
mitted in connection with rape, or by criminals who are
interrupted in the commission of some serious offence and
use violence without premeditation but with a reckless
disregard of the consequences to human life.

714. It should also be pointed out that many killings,
though premeditated, may deserve a sympathetic treat-
ment--e.g., "mercy killings".

As has been observed by Stephen', if A, passing along
the road, sees a boy sitting on a bridge over a deep river,
and out of mere wanton barbarity, pushes the boy into the
river and drowns him, there is no premeditation, and yet
A's act represents more diabolical cruelty and ferocity
than that involved in premeditated murders. The very
fact of an internal long struggle may be evidence that the
homicidal impulse was an aberration----far more the pro-
duct of extraordinary circumstances than the true reﬂec-
tion of the normal self of the offender, while a sudden kil-
ling may be the direct expression of a very vicious
nature"-- .

715. We may also quote here the opinion of Lord Chiei
Justice Parker" on the question of premeditation. He said,

I Cf. Cardozo's criticism quoted in R. C. Report, page 186, paragraph
523-

2 Cf. R. C. Report, page 81, paragraph 514.
3 R. C. Report, page 174, paragraph 500.
4 Stephen, History of the Criminal Law of England (1883), Vol. 3, page
94-
5 Cf. See the views of Professor Wechsler, stated in R. C. Report, page
175, paragraph 5bo.
6 See also Model Penal Code (A.L.I.), May, 1959, Tentative Draft No. 9,
C ornments to article 201-6. page 70.
7§Lord Parker, quoted by Mr. I. A. Hanan in New Zealand Parliamentary
Debates. (Debates on the Crimes Bill, 3rd October, 1961. Co]. 2685).



Scheme in
the Burm csc
Code.

230

"When does a murder reach the stage of being planned?
In 5 minutes'? A few hours'? A day?"

It may also be noted, that premeditation by. itself is not
treated by the Courts in India as a ground for imposing the
higher penalty'.

716. In View of all these difﬁculties, and having regard
to the fact that there is no mandatory sentence of death
even now for the offence of murder in India, we do not
recommend adoption of the test of premeditatzon, as a
criterion for the sentence of death for murder.

TOPIC No. 37
Scheme in the Burmese Code

717. While on the question of dividing murders into
categories, we may discuss the scheme adopted in the
Burmese Penal Code. Burma has made certain amend-
ments in the sections of the Indian Penal Code (known in
Burma as the Burmese Penal Code) relating to culpable
homicide and murder. The effect of these changes, stated
shortlyg, is, that first, where death is caused by an act done
with the intention of causing such bodily injury as is likely
to cause death, it is only culpable homicide. The oﬂ'ender's
knowledge of the peculiar inﬁrmity of the Victim does not
necessarity make it murder, but is a relevant factor in
proving the nature of his intention. Secondly, in the clause
relating to causing death by an act done with the intention
of causing bodily injury suﬁictent in the ordinary course
of nature to cause death, the words "in fact" have
been inserted before the words "is sufficient", apparently
to make it clear that it is not the subjective knowledge of
the offender which is relevant, but, objectively, the nature
of the injury3. Thirdly, causing death by an act done with
the knowledge that the oﬁence is likely to cause death
ceases to be culpable homicide, and ceases to be murder
also, and merely becomes an offence punishable as "causing
death by negligence" under section 304A, the only special
provision being that in such a case the imprisonment may
extend to 10 years.

718. The scope of murder is, thus, considerably limited
in Burma, in contrast with the Indian Penal Code. Cases
which would fall in India under the second clause of sec-
tion 303 of the Indian Penal Code are vitally affected; cases
which fall under the third clause of section 300 are subject-
ed to a verbal change; and cases which fall under the
fourth clause of section 300 totally fall outside the category
of murder.

1 Cf. Spehcedr' I. in In re Bhyri Rajayya, A.I.R. 1921 Mad. 303.
2 Detail of Burmese Code are given in the comparative material.

6 3Cf. Virsa Singh, (1958) S.C.R. I495 ;A.I.R. 1958 S. C. 465,
4 7-



Intent to
hit'.

231

719. Having made these substantive changes in the law
of murder, the Burmese Code further divides murders into
two clases, for the purpose of punishment. If murder is
committed by a person being under sentence of transporta-
tion for life or with premeditation, or in the course of com-
mitting any offence punishable under the Penal Code with
imprisonment up to 7 years, the offender shall be punish-
able with death, and shall also be liable to ﬁne. In other
cases, the punishment will be transportation for life or
rigorous imprisonment up to 10 years, and also ﬁne.
(Punishment for culpable homicide which does not amount
to murder has also been simpliﬁed, but we are not here
concerned with that).

720. To summarise, in Burma the scheme is----
(i) to concentrate on intention;

(ii) to provide that even intentional acts punish-
able under "murder" are capital only if there is pre-
meditation or if the act is committed for committing
an oﬂence punishable up to 7 years' imprisonment; and

(iii) in the case of such aggravated murders, to
provide a mandatory punishment of death.

721. We are unable to recommend the acceptance of
these changes. The tests of in.tent7'0n and premeditation
are not satisfactory as tests for the sentence of death'; nor
can the test of association with another serious crime be
regarded as a satisfactory one by itself? It would leave
out many cases which really deserve the sentence of death.

TOPIC No. 38
Intent to kill

722. We may also consider whether the criterion of
"intent to kill" (which has been suggested by some) can
be suitably adopted so as to reduce the number of murders
in which the sentence of death would be imposed. This is
a "natural and usual" approach3. And if it can be found to
be acceptable on the merits, its adoption would be very
easy so far as the Indian Penal Code is concerned, because
section 300 of the Code, which defines murder, already puts
it in a separate c1ause,--"if the act by which the death is
caused is done with the intention of causing death.".

723. The test of "wilful murder" (apart from premedi-
tated murder or deliberate murder) has been adopted (in
substance) by some countries, which treat "wilful murder"
as an aggravated form of murder, justifying the sentence of

1 See Separate discussion as _to pre-meditation and intention, paragraphs
706-716 supra and 722-725 mfra.

2 See also discussion as to categories of murders. paragraphs 700-703 5
supra.
3Cf. R. C. Report, page 161, paragraph 470.

'17---122 M of Law.



232

death (instead of imprisonment for life) or justifying the-
sentence of imprisonment for life for lesser imprison-
ment'.

724. We are afraid that the adoption of such a test
might lead to serious anomalies. It would remove the pro-
tection afforded by the sentence of death in quite a large
number of cases.

A person who, by means of explosives, derails a passen-
ger train in reckless disregard of the probable conse-
quences of his act, thereby causing death of numerous
passengers, would be saved from the highest penalty, if the
test of "intent to kill" is adopted.

We may, in this connection, refer to certain passages in
the Royal Commission's Report? where this aspect of the
matter has been dealt with-

'The Criterion of intent to kill

470. The more radical proposals, on the other hand,
are primarily designed, not to clarify the existing law
or to amend it in minor respects, but to limit the scope
of murder substantially. The natural and usual
approach to redeﬁnition of this sort is to attempt to
conﬁne murder to cases where there is intent to kill.
If this is taken to mean an actual intent to cause death,
we regard it as a defective and inadequate deﬁnition,
whether it is considered from a logical point of view
or as a means of distinguishing those heinous cases
that deserve the punishment of death. The reasons
why such a deﬁnition is unsatisfactory were clearly
expounded in the Reports of two Commissions which
gave very careful consideration to this question during
the last century. In 1839 the Commissioners on the
Criminal Law, in their Fourth Report, observed:--

"Again it appears to us that it ought to make
no difference in point of legal distinction whether
death results from a direct intention to kill, or
from wilfully doing an act of which death is the
probable consequence. According to the well-
established judicial rule, every one must be pre-
sumed to contemplate the probable consequence of
his own act. Neither is there any difference
between the direct intention to kill and the inten-

.tion to do some great bodily harm short of death
such case being within the immediate operation
of the principle just adverted to, as no one can
wilfully do great bodily harm without placing life
in jeopardy.".

I See R. C. Report, pages 437 and 438, paragraphs I4 and :5, and pages
433 and 434, paragraphs 3 and 4.
212. C. Report, pages 161-162. paragraphs 470-471.



233

and later:
"it is the wilful exposure of life to peril that
constitutes the crime".

Forty years later, the Report of the Criminal Code
Bill Commission contained the following passage:

"The principle that murder may under certain
circumstances be committed in the absence of an
actual intention to cause death ought to be main-
tained. If a person intends to kill and does kill
another, or if, without absolutely intending to kill,
he voluntarily inflicts any bodily injury known to
be likely to cause death, being reckless whether
death ensues or not, he ought in our opinion to
be considered a murderer if death ensue. For prac--
tical purposes we can make no distinction between
a man who shoots another through the head ex-
pressly meaning to kill him, a man who strikes
another a violent blow with a sword, careless
whether he dies of it or not, and a man who, in-
tending for some object of his own, to stop the
passage of a railway train, eontrives an explosion
of gunpowder or dynamite under the engine, hop-
ing indeed that death may not be caused, but
determined to effect his purpose whether it is so
caused or not.".

471. We find ourselves in entire agreement with
the views expressed in these two Reports, which
appear to us to be still valid. We should agree that
there may not infrequently be cases where death re-
sults from an act intended only to cause grievous
bodily harm or from an act done with reckless indiffer-
ence whether such harm is caused, in which the execu-
tion of the capital sentence would not be justified, but
the same will be true of cases where there was intent
to kill. It is equally certain that so long as capital
punishment is maintained there will be cases in each
of these categories which call for the infliction of the
death penalty, and that no deﬁnition can be satisfac-
tory which is not based on a recognition that this is
so.'.

' 725. Nor is there any injustice to the offender involved
in the present law. The law still requires that he must
have_ an intention to cause bodily injury of a certain des-
cription (or knowledge that the act is so imminently dan-
gerous that it must in all probability cause death etch)

Conversely, if every case of intention to kill were to be
treated as deserving death, injustice would result.

1 See section goo, Indian Penal Code ,2nd, 3rd and 4th clauses.



234

There may be an intent to kill, and yet other factors
may reduce the moral culpability of the crime', e.g., provo-
cation though not "grave and sudden". The test of intent
to kill cannot, therefore, be adopted.

CHAPTER IX
NORMAL SENTENCE
TOPIC No. 39 (a)

Replies to Question No. 7

726. Question No.7 in our Questionnaire was as(2ueSti1'1-'=~
follows:-- "§§';

"7(a) Are you in favour of the View that the
normal sentence for murder should be imprisonment
for life, but in aggravating circumstances, the court
may award the sentence of death?

(b) If so, what, in your opinion, should be the
aggravating circumstances?".

727. Conﬂicting replies have been received to this ques- Replies I0
tion2. One group of replies suggests that imprisonment for Q'"'s"°"7'~~')
life should be the normal sentence for murder. Another
View is, that the normal sentence for murder should be
death, and the lesser sentence should be awarded only in
the case of extenuating circumstances. A third view is that
the matter should be left to the discretion of the court.

There is no strong majority in favour of any of these
various views, and opinion is sharply divided.

728. According to the first view, the normal sentence
for murder should be imprisonment for life. This view
has been expressed by a few High Court Judges3, a State
Government', some members of the Bari'-°, a Bar Council',
and several others.

729. That the normal punishment for murder should
be imprisonment for life is also the view of a High Court

I Cf. R. C. Report, page 176, paragraph 502.

2 Paragrah 726, supra.

3 S. No. 147.

4 S. No. 129.

5 An eminent member of the Bar, S. No. I61'.

6 A Member of the Bar Council of Madras, 5. Nr'. 104.
7 A Bar Council, S. No. 159



235

Judge', of the Law Minister of a State", a Member of Par-

liamenti', some Members of State Legislatures' and several
others"--".

730. A High Court Judge' has stated that the normal
punishment should be imprisonment for life, and that in
aggravating circumstances the Court may award the sent-
ence of death. The aggravating circumstances, in his
opir.ion, are--Deliberate murders, evidencing moral turpi-
tude and brutality.

731. Many replies suggesting that the normal sentence
for murder should be imprisonment for life have been
received from District and Session ..Tudges'7'. One of these
replies states9 that actual judicial experience shows that
the sentence of death is awarded in few cases in cases of
murders, and hence there is no harm in providing that the
normal sentence shall be imprisonment for life.

732. Certain other District and Session Judges" and
Additional Sessions Judges" are in favour of making
imprisonment for life the normal sentence for murder.

733. In the reply of a District and Sessions Judges"-', it
has been stated that imprisonment for life should be the
normal sentence. The reply points out that after the
amendment of section 367 of the Code on Criminal Proce-
dure, 1898, in 1955, the sentence is to be determined on the
facts of the case. The reply also states that the court
must state its reasons for awarding the sentence of death,
and advance the following reasons for this suggestion:--

(i) No court is bound to pass the maximum sen-
tence, and the scheme of the Indian Penal Code also
indicates that the maximum sentence should be
awarded only in exceptional cases;

(ii) the presiding officer should be given a perfect
chance of meeting cases of doubt or hardship;

I A High Court Judge, 8. No. 23c.
2 Law Minister of a State, 5. No. 313.
3 A Member of Raiya Sabha, S. No. 245.

4 Members ofState Legislatures, S. Nos. 225, 237, 241, 243, 248, 253
and 257.

5 An Inspector General of Prisons, S. No. 264.
6 A University Professor, S. No. 304.
7 A High Court Judge, under question 7 (a) and 7 (b) S.No. 316.

8 District and Sessions Judges, 8. Nos. 330, 341, 353, 359, 376, 377,
373, 330, 331, 382, 383.389, 390-

9 A District and Sessions Jvdge, S. No. 353.
I0 S. No. 524.

11 S. No. 535.

12 Reply to questions 2(a) and 7(a), S. No. 553.



236

(iii) since the death sentence negatives reforma-
tion, the court must have adequate reasons for consi-
dering that the oﬁender is not corrigible or that the
reformatory method would do no good to him;

(iv) cogent reasons must appear on the record of
the case to justify the extinction of human life;

(v) the court must show caution in exercising its
discretion in awarding sentence in cases of vicarious
constructive liability.

734. On the other hand, the opposite View states that
the normal sentence for murder should be death, and the
lesser sentence should be awarded only when there are
extenuating circumstances. This view has been expressed
by certain High Courts', some High Court Judgesg, a few
State Governments and Administrations", some Bar Asso-
ciations, etc} and a few oﬂicersih

735. It is the View of the Chief Justice of a High Court",
that if capital sentence is to serve its primary purpose of
acting as a good deterrent, the normal sentence should be
the capital sentence, though the lesser sentence of impri-
sonment for life can be passed for adequate reasons as in

the existing law.

736. That the normal punishment should be death, is
also the View of several High Court Judges". It is the

View of a State Government8.

737. The view of a very senior Advocate of the Bombay
High Court" is that the normal sentence on conviction of
murder should be death, unless there are circumstances
extenuating or palliating the offence. Aggravating as well
as extenuating circumstances it is stated diifer, and are
peculiar to each case.

I S. 'No. 140.

2 S. No. 97.

3 5. Nos. 182, 154. 164, 106.

4 Indian Federation of Women Lawyers ;Poona Bar Association. S. Nos.
121 and 125.

5 An Inspector-General of Police. A Home Secretary to State Govern.
ment of Kzrala ; and another Inspector-General of Police, S. Nos. 131 and

143.
6 Chief Iustice of a High Court, S. No. 317.
7 Aiiigh Court Judge, S. No. 251 ;Two High Court Judges. 8. No.
262.
8 A State Government, S. No. 311.
9 A sery senior Advocate of the Bombay High Court, 5. No. 318.



237

738. Some District and Sessions Judges have also ex-
pressed the view that death should be the nomal punish-
ment'.

739. Some Members of Parliament have expressed the
view that death should be the normal punishment? This
is also the View of an Inspector-General of Police".

740. The reply of the Judicial Section of the Indian
Ofﬁcers' Association of a State' states that the normal sen-
tence should be death. "To put it the other Way would
imply an acceptance of the position that capital punish-
ment should be abolished in effect, but at the same time,
retaining it in the statute".

741. Several others have expressed the view that the
normal punishment should be death. Amongst these are
some District Bar Associations'.

742. One reply" adds that where the case is heard by a
Division Bench and one of the Judges expresses a dissent-
ring view as to the offence or the sentence, the appropriate
lesser punishment should be awarded.

743. According to the third view, the matter should be
left to the discretion of the court. This group comprises
several categories, namely, those who belong to this group
because they would like to emphasise the discretion of the
court; those who take this View subject to their answers
to other questions, (particularly questions 4 and 5); and
those who content themselves by merely disagreeing with
the suggestion made in the question.

744. Under this group fall replies received from certain
High Courts7, some High Court Judges", one State Law
Commission", certain State Governments", certain
Members of Parliament" and State Legislatures", and a
retired High Court Judge".

1 District and Session Judges. 8. Nos. 325, 334, 336, 339, 342, 347,
348: 370.
2 Member of Parliament ; S. Nos. 232 and 255 Member of State
Legislatures, S. No. 224.

3 An Inspector-General of Police, S. No. 263.

4 S. No. 562.

5 District Bar Associations,S. Nos. 220, 233 and 239

6 Indian Federation of Women Lawyers. S. No. 121.

7 S. Nos. 187 and 167.

8 S. Nos. m5, 130, 147 and 262.

9 A State Law Commission, S. No. I01.

[0 A State Government, S. No. 143.

11 S. Nos. 207, 210 and 209.

12 S. No. 102.

13 A retired Judge of the High Court of B0mbay, S. No. 93.



238
745. Several other replies'-2-3-4 express the same view.

746. Many other replies are in favour of retaining the
existing provisions, z'.e., the discretion of the court". Rep-
lies which merely oppose the suggestion to provide that
imprisonment for life shall be the normal sentence can be
regarded as falling under this group.

747. Apart from them, several replies point out that it
is unwise to interfere with the discretion of the court in
the matter of sentence.

7-18. A helpful elucidation of this View is found in the
reply of one High Court'', and we quote the relevant por-
tion:--

"If the death sentence is to serve as a deterrent
to the fullest extent that it is expected to, it will not
be desirable to make it appear that the normal punish--
ment for murder is imprisonment for life and death
sentence will be awarded only in extreme cases. But
we are of the View that Capital Punishment should be
awarded only in extreme cases of murder. Murders
committed after cool calculation or with a bad motive
attended by excessive cruelty or bestiality are inst-
ances of such extreme cases.".

749. The reply of the Chief Justice of a High Court7 ex-
presses the view, that there should be no such thing as a
normal sentence, whether the capital sentence or the
lesser sentence of imprisonment for life. The reply makes
four points-

(i) the sentence is in the discretion of the court;

(ii) the discretion being judicial reasons should
be, and, as a matter of practice are, given for im-
posing one sentence or the other;

(iii) the discretion should not be fettered in any
way by prescribing any particular sentence as "nor-
mal";

(iv) prescribing the sentence of imprisonment
for life as the normal sentence may result in diminu-
tion of the deterrent effect of the death sentence.

I Law Minister of a State, S. No. 253.

2 An Advocate General, S. No. 229.

3 A Member of Parliament under questions6 (a) and 7(a) S. No.

273.

4 A Member of a State Legislature, S. No. 244.

5 These are too numerous to be enumerated.

6 Under reply to question 7. (A High Court), S. No. 167.

7 Chief Justice of a High Court, S. No. 393.



239

750. Some of the replies which we have received under
question 7(a) or question 7(b) imply that a "normal sen-
tence" for murder exists even now. Thus, in the reply ofa
High Court Judge', it has been stated that the "normal sen-
tence" for the offence of murder is death sentence, and if
there are extenuating circumstance then the lesser sen-
tence may be awarded; existing proyisions, it is stated,
are sufficient, and no change is necessary.

751. In the reply of a State Government', it has been
simply stated that the existing provisions are sufficient.

752. A State Government" has pointed out, that the
sentence must be left to the discretion of the Judge,
because in a given situation whether the death sentence
or the lesser punishment to be imposed, must be a matter
for the discretion of the Judge who decides the case.

753. Another State Government' states as folloWs:--

"Although the extreme penalty is the normal
penalty to be given, in practice it is given in very rare
cases. The law and practice are so Well-settled that
it is unnecessary to make any change".

754. The reply of a Principal Judge of a City Civil
Court and Sessions J udge5 emphasises that both the puni-
shments should be regarded as normal punishments, with
a discretion left to the court to award such punishment as
the circumstances of the case warrant.

755. The reply of a Judicial Officers' Association" states
that it should be left to the Judge to decide whether capital
sentence is to be passed or not. The reply adds that if
one attempts to codify the law for imposing capital sen-
tence for murder, and to enumerate the aggravating cir-
cumstances, then the Judges are bound to consider the
aggravating circumstances as one of the grounds for
awarding capital punishment. But, then, aggravating cir-
cumstances in relation to a particular murder depend
upon the facts of a particular case. "So it is not proper to
define what aggravating circumstances are. If you deﬁne
it in any form in a particular case, it may appear in a
different form and thereby it might prejudice the conclu-
sion to be arrived at in a given case".

I S. No. 262, reply under questions 7 (a) and 7 (b).
2 S. No. 261. reply under questions 7 (a) and 7 (b).
3 S. No. 574.
4 S. No. 580.

5 Principal Judge of 3 City Civil Court and Sessions Judge S. No.
351-

6 An Association of Judicial Service Oﬂiccxs, S. No. 373.



240

756. The reply of another Judicial Oﬂicers' Association.'

is also opposed to any provision that the normal sentence
should be imprisonment for life.

757. A District and Sessions Judge" has stated that
there should be nothing like a "normal" sentence for mur-
der. The facts of the particular case should decide what
is the appropriate sentence.

758. The reply of another District and Sessions Judge'
points out that there is a discretion in the court in award-
ing the punishment, and if imprisonment for life is made
the normal sentence, it would Whittle down the whole
object of the present provisions and it would also do away
with the object underlying capital punishment.

759. The reply of an Additional Sessions Judge4 states
that the existing law is the only provision to meet the ends
of justice. The reply adds that Indian Judges are slow in
awarding the death sentence because of their spiritual
background, and that they do seek grounds for awarding
the lesser punishment of imprisonment for life. The reply
opposes the making of a provision that the imprisonment
for life should be the normal sentence, because, in that
case, a practice may set in the Sessions courts of awarding
only the sentence of imprisonment for life.

760. The reply of an Assistant Judge', while stating
that at present the courts award the sentence of death in
cases of deliberate murder, in cases where a murder is
-committed to facilitate the commission of some offence or
to avoid arrest for an offence and for other heinous cases
of murder, takes care to add, that it is not possible to de-
ﬁne aggravating circumstances with any mathematical
precision. What is an aggravating circumstance under
one condition may not be so in other cases.

761. The reply of the majority of the Presidency Magis-
trates in a Presidency Town" has stated, that, considering
the variety of human methods and motives for the com-
mission of murders, it could be left to the court to consi-
der what under the particular circumstance of each case
is the proper sentence to award. It is possible that in the
absence of any law laying down the aggravating circums-
tances under which the sentence should be death, the
'various judges trying murder cases might differ, and one

I Association of Judicial Service Officers, S. No. 374.
2 A District and Sessions Judge, S. No. 331.

3 A District and Sessions Judge, S. No. 444.

4 An Additional Sessions Judge, S. No. 367.

5 An Assistant Judge, S. No. 340.

6 S. No. 549.



Aggravating
circumstan-
0:5.

241

judge may hold a particular set of circumstances to be
aggravating, while another may not. But all the circum-
stances cannot be provided for by any law, and, therefore,
no provision in the law enlisting those aggravating cir-
cumstances can be exhaustive.

762. The latter part of question 7 of our Questionnaire
dealt with what should be aggravating circumstances.
This was intended for reply only by those who were of the
View that the normal sentence for murder should be im-
prisonment for life, but in aggravating circumstances,
the court may award the sentence of death. Therefore,
those who were of a different view on that point, z'.e.,
either those who regarded death as the ordinary punish-
ment, or those who were against any punishment being
regarded as the normal punishment, naturally would not
be concerned with this part.

763. The replies on this point may be said to fall under
three groups. The first group comprises those who are of
the view that aggravating circumstances need not be de-
ﬁned. This view has been expressed by one High Court'.
One State Government? has, in its reply, emphasised that
no exhaustive list of either extenuating or mitigating cir-
cumstances can be prepared.

764. It has been pointed out in the reply of an Advo-
cate3 who is also a Member of a State Legislature that
it is not possible to give an arm-chair deﬁnition of aggra-
vating circumstances.

765. Several District and Sessions Judges have stated
that aggravating circumstances cannot be codiﬁed'.

766. It has also been pointed out by a District and Ses-
sions Judge that aggravating circumstances cannot be re-

duced to mathematical calculations and that they will de-

pend on the facts of each case. As long as the ingenuity
or brutality of a criminal cannot be put forth in certain
terms, those circumstances also cannot be mentioned".

767. Another District and Sessions Judge" has stated
that if one codiﬁes the law for imposing. the sentence of
death for murder, the Judges are bound to consider the
aggravating circumstances as one of the grounds for

I A High Court, 8. No. 140.

2 A State Government. S. No. 182 under question 7 (b). Its reply to
question 7 (a) states that the normal sentence shouli be death.

3 S. No. 226.
4 S. Nos. 381, 383 and 399.
5 S. No. 416.
6 S. No. 440.



242

awarding the capital punishment. Aggravating circumst-
ances, it is stated, depend on the facts of each case, and it
15 not proper to deﬁne them. If one deﬁnes them in any
form in a particular case, they may appear in a different

form, and this might prejudice the conclusion to be arriv-
ed at in a given case.

768. A City Civil Court and Sessions Judge' has also
stated that extenuating circumstances cannot be formu-
lated and must depend on the facts of each case.

769. The second group comprises those who, while sug-
gesting certain aggravating circumstances, make it clear
(in some form or other) that the situations which they
suggest are merely examples, and not intended to be ex-
haustive. The majority of the replies seem to fall under
this group. Thus, certain High Court Judges2 have sug-
gested, as examples of aggravating circumstances, murder
by people standing in a ﬁduciary relationship (master
and servant), murder involving family relationship, sabo-
tage and espionage, and political murders.

770. A High Court Judge3 has suggested that the nor-
mal rule relating to the discretion regarding sentence
should be not to impose the sentence of death unless there
are aggravating circumstances. Examples of aggravating
circumstances given in his reply are----enormity of the
crime, the offence being cold--blooded and premeditated
accompanied with unnecessary brutality, etc., or a murder

by a life convict under section 302, or a dacoity with mur-
der under section 396.

771. Another High Court Judge' has (without a claim
to exhaustiveness), stated that the following may be re-
garded as factors which may be taken into consideration
in determining whether the offence of murder has been
committed in aggravating circumstances to justify the
sentence of death. He has, at the same time, pointed out
that the presence of one single factor may not be suﬁicient,
but all or some of them may justify the extreme punish-
ment. The factors which he has mentioned are----

(i) murder was unprovoked, deliberate and plan-

ned,

(ii) murder was motivated by greed or other con-
siderations;

(iii) unfair advantage taken;

1 S. No. 434.

2 S. No. 130, reply to question 7 (b). But the reply to question 7(a)
states that the discretion of the court should continue.

3 S. No. 397, reply to question 7 (5) read with question 6.
4 A High Court Judge, S. No. 230.



243

(iv) murder for the second time after conviction;
(v) unusual cruelty;
(vi) murder by hardened criminals.

772. Another reply" gives, as examples, extreme cruelty
or extreme depravity of mind, accompanied by extreme
disregard of the interests of the society, premeditation,
deliberate, cold-blooded, brutal murders and the like; the
reply, however, makes it clear that this may be Counter-
balanced by extenuating circumstances.

773. One of the Bar Councils2-3 states that the aggravat-
ing circumstances would be such as unnecessary cruelty,
cold-blooded act, planning and pre--meditation.

774. A State Law Commission' has stated that aggrava-
ting circumstances need not be catalogued.

775. According to a District and Sessions Judge-'', no
enumeration of aggravating circumstances can be exhaus-
tive, but if it is a case of cool and calculated murder or
murder brought about by design or by creating a feeling
of confidence in the victim, then capital punishment
would be justified. Similarly, if a person is murdered
merely for money or if it is done being blinded by a feel-
ing of revenge, not with a laudable object, capital punish-
ment may be justiﬁed.

776. According to a District and Sessions Judge in the
State of Maharashtra'', aggravating circumstances depend
upon the singular facts of each particular case, and can-
not, therefore, be enumerated. The paramount considera-
tion according to him should be the threat to the commu-
nity if the lesser punishment were to be imposed. Wanton
disregard for human life or a challenge to the Govern-
ment or its oﬂicers, when resulting in death, may be puni-
shable by imposing the death sentence.

777. Another District and Sessions Judge' has stated
that some of the aggravating circumstances can be des-
cribed as--

(i) heinousness of the offence:

(ii) no provocation;

(iii) revolting nature of the crime;

(iv) ﬁlthy lucre which motivated the crime.

1 law Secretary to a State Government, S. No. 251.
2 A Bar Council, S. No. 159.

3 To the same effect is the reply received from an eminent member of

the Bar Council of India, S. No. 161.

4 A State Law Commission, 8. No. IO!
5 S. No. 330.
6 S. No. 341.
7 S. No. 353.



244

778. We now come to the third group of replies, name-
ly, those who state the aggravating circumstances without
stating that what they suggest are mere examples. Vari-
ous suggestions have been made. For example, aggravat-
ing circumstances have been listed as professional mur-
der', malice, acquired habit, innate instinct and company
in the commission of murderz, spoiling the chastity, pre-
planned murder", motive of gain and advantage, cruelty
and like conditions', and danger of further revengeful
action'?

779. In the View of a distinguished Member of the
Rajya Sabha°, the normal sentence for murder should be
imprisonment for life and the sentence of death may be
awarded for aggravating circumstances. Aggravating cir-
cumstances would be cold-blooded murder, but the reply
points out that very specialised opinion will have to be
sought before coming to any conclusion that the circums-
tances have been so aggravating that capital punishment
has been called for. The reply also emphasises that the
judiciary should fully consult experts in the medical and
sociological ﬁeld to ﬁnd that physical, mental and emo-
tional imbalance in a murderer before the law could de-
cide the course of maximum action, namely, the capital
punishment.

780. According to the reply of Law Minister of a State',
the normal sentence should be imprisonment for life, and
the aggravating circumstances should be----

(i) deliberate murders;

(ii) use of lethal weapons;

(iii) wanton cruelty and malignity;

(iv) treachery;

(v) nature of injury;

(vi) motive;

(vii) murder against public servant in discharge

of duty; and
(viii) murder in course of jail breaking.

781. In the reply of the Law Minister of another State",
it has been stated that, generally speaking, the aggravating

I S. No. 119.

2 S. No. I22.

3 A Pleader, Madras, S. No. 109.

4 A Member, Bar Council of Madras, S. No. 104.
5 An Inspector-General of Prisons, S. No. 130.
6} S. No. 245.

7 S. No. 313.

8 S. No. 253.



245

circumstances should be extreme cruelty or extreme dep-
ravity of mind, accompanied by extreme disregard of the
interest of the society, premeditation, deliberate cold-
blooded and brutal murders and the like. The reply, how-
ever, takes care to point out that aggravating
circumstances could be counter--balanced by extenuating
circumstances.

782. In the reply of a Member of a State Legislative
Council', emphasis has been placed (while stating the
aggravating circumstances) on pre--planned, malicious,
daring, organised and brutal murders.

783. In the reply of a Member of a State Legislative
Council'-', pre-meditated murder, dacoity combined with
murder and group murders are enumerated as aggravat-
ing circumstances.

784. In the reply of a Member of the State Legislature
in the U.P.3, the aggravating circumstances are enumerat-
ed as--

(i) pre--planned and calculated murder;

(ii) murderer being a habitual criminal.

785. In the reply of an Inspector--General of Prisons', it
is stated that the aggravating circumstances should be
pre-meditation or deliberation and the brutality accom»
panying the offence.

786. One reply5, though not strictly falling under ques--
tion 7 (b), states that murdier itself is the highest aggravat-
ing circumstance, and that by being over--1enient we have
encouraged a state of affairs whereunder private venge-
ance is fast replacing public retaliation. One murder, it is
stated, is retaliated by another murder, and this vicious
chain goes on, but in the courts it is not possible to prove
that the particular murder is the result of a previous mur-
der, and so on.

787. In the reply of a District and Sessions J udgeﬁ it has
been stated that the aggravating circumstances should in-
clude the degree of cruelty accompanying the murder,
deliberate, cold--blooded murders, and murders of innocent.
persons who have not given any cause or grievance.

I S. No. 257.
2 S. No. 248.
3 S. No. 243.
4 S. No. 264.
5 A District and Sessions Judge in Gujarat, S. No. 212.
6 S. No. 377.



246

. 788. According to the reply of another District and Ses-
sions Judge', aggravating circumstances would be mur-
ders committed as a result of conspiracy, those committed
for'fac1l1tating dacoity, robbery or theft, and murders
Wh1Ch are committed without any extenuating reasons
and with cold calculation.

789. In the opinion of another District and Sessions
Judge", the aggravating circumstances are--when death is
caused in furtherance of a felony of violence; when death
is caused to a person who comes to make a lawful arrest;
heinous murder specially when after the commission of
murder the dead body is disposed of in such a manner as
not to get a chance of decent burial or cremation.

TOPIC NUMBER 39 (b)

Whether normal sentence should be imprisonment for life

790. We shall now consider the question whether im- Whgther nor.
prisonment for life should be the normal sentence and the mal Sentence
sentence of death should be imposed only when aggravat-i5§1°"r1i':on_ b°
ing circumstances exist. For the reasons given below, we ,,,§,tf,,,1;fe,
are not in favour of such a change. In the ﬁrst place, the
-existing scheme has worked satisfactorily, and no serious
criticism has been made thereof. In the second place, it
will be difﬁcult to deﬁne aggravating circumstances, and
in the absence of such a deﬁnition, the provision would
not serve a particularly useful purpose. If the sentence of
death is to serve as a deterrent to the fullest extent, it will
not be desirable to make it appear that the normal sen-
tence for murder is imprisonment for life and death sen-
tence is to be awarded only in extreme cases. Moreover,
an enumeration or illustration of "aggravating circums-
tances" will be open to the same criticism that the divi-
sion of murders into categories is subject to3.

TOPIC NUMBER 40

Whether normal sentence should be death

791. The other alternative, namely, whether a provi- Whether
sion should be inserted to the effect that the normal sen- n°Fm31hSe*l1('i
tence for murder shall be death, may now be considered. {)°:°§e:t§_"
Some of the replies received to question 7 have suggested
the insertion of such a provision'.

I S. No. 380.
2 S. No. 445, reply to questions 7 (a) and 7 (I7).
3 See discussion relating to categories of murder, paragraphs 7o4--7o5,
supra.
4 Replies to Question 7 have been summarised separately. See
paragraphs 727-761, supra.



247

792. There are certain objections to the adoption of this
course. In the ﬁrst place, it would not be in accord with
the change made in section 367(5), Code of Criminal Pro-
cedure in 1955. Section 367(5) of the Code of Criminal
Procedure, as it stood before the amendment of 1955, re-
quired the court to give reasons for imposing the lesser
sentence. Though that sub-section did not say in so many
words that the normal sentence for a capital offence shall
be death, yet many courts had interpreted it as having
that effectl. That provision was deleted in 1955, and it
would now require strong grounds to support a decision to
insert the suggested provision. Secondly, it would consti-
tute a fetter on the discretion of the court, and we may
note that a large number of replies received to question 4
of the Questionnaire are in favour of retaining the discre-
tion. Thirdly, there appears to be some force in the argu-
ment, that the highest penalty of the law should not be
imposed as a matter of course. Fourthly, if such a provi-
sion is inserted, diﬁiculties may arise where there are ex-
tenuating circumstances.

793. We are not, therefore, inclined to recommend any
such change in the law.

794. There is, we ﬁnd, a conﬂict of decisions as to how
far death is the normal sentence even after the amend-
ment of section 367(5) of the Code of Criminal Procedure
in 1955. In a recent Bombay case2, the High Court consi-
dererl in detail the effect of the amendment of section
367(5), Criminal Procedure Code in 1955. The High Court
took the view that the amendment did not affect the
question regarding death sentence. In its view, in regard
to the exercise of the discretion, even section 367(5), as it
stood before the amendment, did not offer any guidance,
and therefore the deletion of that portion of the section
could not affect the exercise of discretion. "A discretion
has to be exercised judicially. It must also appear that it-
is so exercised. This can be done if reasons for the exer-
cise of the discretion are given in the order given in exer-
cising the discretion. Whether the statute requires it or
not, reasons have to be given. The section could, there-
fore, have no relevance on the decision itself.".

795. The court stated, that the view taken by the
Supreme Court, namely, that unless there are extenuat-
ing circumstances, the normal punishment for murder
should be death, would prevail in spite of the amendment
of 1955 in section 367(5) (even though the Supreme Court
case related to an oifence before the amendment).

I See Analysis of case-law, Cases No. 3, 4o, 61, 64, 65, 66, 80, 84.

2 State of Maharashtra v. Gourishankar, (I966) 68 Born. Law Reporter
236 : A.I.R. 1966 Bom. 179.

3 V. Theoar v. State of Madras, A.I.R. I957 S.C. 6:4.
18--122 M of Law



248

796. The court cited certain Bombay decisions before
the 1955 Amendment Where the View was taken that for
murder the normal sentence is deathl-2. It did not accept
the argument of the counsel for the accused that the
amendment of 1955 was intended to change the old posi-
tion that death is the normal sentence for a capital offence.
It agreed with the decisions of the Allahabad" and Madras'
High Courts on the point. In the Allahabad case, the View
was taken that the amendment of section 367 did not
affect "the law regulating punishment under the Penal
Code" and that the amendment related to the procedure
and now courts are no longer required to elaborate the
reasons for not awarding the death penalty, but they can-
not depart from sound judicial considerations in prefer-
ring the lesser punishment. A court may not record
reasons for not passing the death sentence, but if it
awards life imprisonment for a cold-blooded and revolt»
ing murder, the absence of reasons will not save its pre-
ference from being unjudicial.

797. In the Madras case, the Sessions Judge had not
given any reason for imposing the lesser sentence. The
High Court did not interfere with the sentence, as there
was no application for enhancement. But it observed that
the case was one in which the extreme penalty of the law
deﬁnitely appeared to be called for.

798. The Bombay High Court's attention does not
appear to have been drawn to an Andhra Pradesh case",
holding that, after the amendment of 1955, the theory that
death is the normal sentence for capital offence does not
hold good.

799. The conflicting views as to whether, after the
amendment of section 367(5), Criminal Procedure Code-
in 1955, death sentence is the "normal sentence", are fur-
ther illustrated by the case-law discussed in the under-
mentioned decision". The provision which we propose?"
will. it is hoped, settle this controversy also, as we are re-
commending that reasons must be given in either case----
and that will re-emphasise that the sentence is entirely
in the discretion of the court.

1 State v. Airarxing, A.I.R. 1956 Born. 231.

2 State v. Pandurang, A.I.R. 1956 Born. 711, 714.

3 Ram Sing}: v. State, A.I.R. 1960 All. 748.

4 In re Veluchami, A.I.R. 1965 Mad. 48.

5 AmaIlaKoIe5hwar Rao, in re. A.I.R. I963 A.P. 240.

6 Rajnikant v. State, A.I.R. x967 Goa 21 (F. B). paragraph 22, and.'
paragraphs 46-52. - v

7 See amendment proposed to section 367(5) and discussion regarding
question 8. , ' '



249

CHAPTER X
REASONS FOR SENTENCE
TOPIC NUMBER 41
Replies to Question No. 8
800. Question 8 in our Questionnaire was as follows;---- ,,,,.,,,,'0,, g_

"Should there be a provision in the law requiring
the court to state its reasons for imposing a sentence
of death or the lesser punishment of imprisonment
for life?".

801. The replies received on this question may be said °?"'¢S "E;
to fall under four groups. First, those which take the viewQ'leS"°n '
that a provision should be inserted requiring the court to
state its reasons for imposing either of the two sentences;
secondly, those which express the View that reasons should
be given only where death sentence is imposed; thirdly,
those which express the view that reasons should be given
only when the lesser sentence is awarded; and, fourthly,
those which maintain that reasons need not be given in
either case.

Perhaps the largest number of replies fall under the
first group, and suggest that there should be a provision
in the law requiring the court to state reasons for im-
posing the sentence of death or imprisonment for life. This
View is shared by certain State Governments', Bar Coun-
cilss, High Courts", some Members of Parliament or State
Legislatures', one retired High Court Judge', several
oﬂicers". certain Associations" and several members of the
Bar and other gentlemeng.

802. In the reply of a State Government", it has been
stated that reasons are normally given in both cases, but
that it would be desirable to insert a provision that the
Judge should give the reasons for the sentence which he

1 A State Government, and Government of aUnion Territory. See
also reply of a Home Secretary, S. Nos. 154, I64 and 131.

2 Two Bar Councils, S. Nos. I16 and 159.

3 A High Court, S. No. 187.

4 A Dy. Minister in the Union, S. No. 210 ; a member, Rajya Sabha
S. No. 207 5 a Revenue Minister of a State, S. No. 216 ; an M.L.A., Madhya
Pradesh. S. No. 213.

5 A r.:.:ired Judge, High Cmrt of Bombay, S. No. 95.

6 Law Secretary to a St': c-Government, S. No. 162 ; an Inspector
General of Prisons, S. No. 131 1 an Inspector-General of Police, S. No. 131
an Inspector-General of l'risoi;s, S. No. 143.

7 The Indian Federation of Women Lawyers, Bombay, S. No. 12!.

8 S. No. I22, an eminent Advocate through the Bar Council India of
S. No. 161; an Advocate of the Original Side (Bombay), S. No. 921 a Barrister
of Calcutta, S. No. 150 5 a Pleader, Saharanpur, S. Nos. 151 and 126.

9 S. No. 242.



250

awards, whatever be the sentence. According to another
State Government', the court ordinarily gives reasons, but,
there is no objection to a provision as suggested.

One State Governmentz, while not stating that a statu-
tory provision is needed, has emphasized that when the
matter is left to the judges it means that it must be judi-
cially determined, based on reasons and on the facts of
the case. This is especially so when the decision is subject
to appeal.

Another State Government" is in favour of a provision
requiring reasons in both cases.

803. One of the High Courts' has stated that in view
of the fact that the discretion is to be vested in the court,
it would be desirable that reasons for awarding or not
awarding the death penalty should be stated, so that the
higher court can examine whether the discretion has been
properly exercised; at the same time, the High Court states,
it is not necessary to make any speciﬁc provision in the
matter, as it is well-known to courts exercising discretion
in appealable cases that they should give reasons as to why
the discretion has been exercised one Way or the other.

804. A High Court Judge5, while stating that the normal
sentence for murder should be death, but in mitigating
circumstances the court may award the lesser sentence, has
expressed in these words his opinion as to the need for a
provision requiring reasons to be given for both the sent-
ence of death and the sentence of imprisonment for life.
"In my opinion, there should be a provision in the law re-
quiring the court to state its reasons for imposing the sent-
ence of death or the lesser punishment of imprisonment
for life in any case in which it has a discretion to do so, so
that the court of appeal or the higher authorities can con-
sider the reasons of the learned Judge in deciding to pass
the particular sentence that he has done".

805. According to the Law Minister of a State°, the law
should provide that the court should record adequate
reasons for awarding any sentence whatsoever; that is very
necessary and would, to a large extent, prevent miscarriage
of justice.

I S. No. 361.
S. No. 574.
S. No. 580.
A High Court, S. No. 167.
S. No. 396, in reply to questions '/(al am: 8.

O\'~II-b'~MN

S. No. 253.



251

The Law Minister of another State is also in favour of
such a provisionl. Several High Court Judges are in
favour of such a provision?

806. It is also the view of a distinguished Member of
the Rajya Sabha", and of several Members of State Legis-
latures"', that reasons should be required to be given in both
cases.

807. According to a Judicial Officers' Association5, there
should be a provision in the law requiring the court to state
its reasons for imposing either sentence.

808. In the reply of several District and Sessions J udges5,
a provision requiring reasons for either sentence is
favoured on the ground that this would furnish material
to the Appellate Court to consider the reasons.

809. According to a District and Sessions Judge in the
State of Maharashtra7, if the Judge is made to give rea-
sons for the particular sentence which he wished to impose,
there would be less chances of the imposing of the sentence
being based on caprice, and the Appellate Court will have
proper material to assess whether the reasons are in accord-
ance with the principles or not.

In the reply of a, Judicial Oﬂicera, it has been pointed
out that a judgment is an indivisible whole, and when the
judge convicts or acquits, he rivets his eye on every cir-
cumstance. A plea for requiring reasons is nothing better
than an insistence upon the essential requirements of a
judgment.

810. It may be stated here that those who belong to the
first group have advanced various arguments in support of
a provision requiring statement of reasons. It is stated
that such a provision will enable the Appellate Court, when
reviewing the quantum of punishment, to appreciate the
correctness of the punishment". It is also stated that it
will show that justice is done on the basis of satisfactory
evidence and logic and reasonable conclusions". One
reply" points out. that it would be guide to the concerned
authorities in dealing with petitions for mercy.

1 S. No. 313.
2 S. Nos. 251, 252 and 316.
3 S. No. 245.
4 S. Nos. 243, 244, 248 and 249.
5 S. No. 374.
6 S. Nos. 387 and 437.
7 No. 346.
8 S. No. 472.
9 An Inspector-General of Police, S. No. 131.
to S. No. 118.
11 Atetircd Judge of the Bombay High Court, 8. No. 95.



252

811. The second group comprises those who take the
View that reasons should be given only where the sentence
of death is imposed. This View is expressed by a State
Governmentl, several High Court Judges'-', some Members
of State Legislatures", a State Law Commission" (which
has suggested that section 367(5) of the Code of Criminal
Procedure 1898 should be amended accordingly); a Judicial
Oﬂicers' Association, some Judges of City Civil Courts",
District and Session Judges7, a Bar Association'', a Bar
Council", some Members of the Bar" and others"-1*.

812. The argument advanced in support of this view"
is, that a provision, requiring statement of reasons for im-
posing death sentence is necessary to ensure that the courts
do not impose the extreme penalty arbitrarily Without a
consideration of the extenuating circumstances mitigating
the offence.

813. The third group comprises replies which take the
view that reasons should be given where imprisonment
for life is awarded. Thus, one reply has stated that, to the
average man, the judiciary is next to God, and judgments
of courts carry respect, honour and dignity, and that while
imposing the death sentence reasons need not be given,
but reasons should be given for the lesser punishment".

The Chief Justice of a High Court has suggested" that
old section 367 (5) of the Code of Criminal Procedure, 1898,

should be restored.

Certain High Court J udges'° have stated that, as a rule,
capital punishment should be awarded unless the Judge,
in his discretion, for reasons to be recorded, comes to the
conclusion that it is a ﬁt case Where the death sentence
should not be awarded. To this third group belong certain

. No. 129.

. Nos. 197, 230, 262 and 397.

. Nos. 221, 225 and 226.

. No. 101.

No. 373.

. Nos. 379, 380, 381 and 434.

. Nos. 353, 383. 399, 416, 440 and 420.
No. 426.

No. 115.

No. 104,

No. 117.

12 No. 304.

13 State Government. 5. No. I29.

:4 _. No. 127.

15. S. No. 316.

16. Two high Court Judges., S. No. 154

\O0O\]O\u1-hUJN>-4
3'§"E"."'§"."'V>V>S"<nc/:</am

IO
11

I'



253

other High Court Judges', a few State Governments", and
Administraticns3, and some Bar Associations', and certain
officers".

814. One State Government° has stated that such a pro-
vision (for giving reasons when awarding the lesser
punishment) will exclude the possibility of a Judge acting
arbitrarily in the matter of imposition of sentence in any
particular case.

Several District and Sessions Judges7 and otherss are of
the view that reasons for imposing the lenient sentence
should be given.

815. The fourth and last group comprises those replies
which take the View that there is no necessity for requir-
ing reasons to be stated in either case. One High Court",
one State Government". a Member of a State Legislature",
and othei'sl'-1" are of this view.

816. According to the Chief Justice of a High Court", the
question of giving reasons for a particular sentence would
arise only if that sentence is regarded as not the "normal"
sentence. According to him, there should be no such
thing as a "normal" sentence for murder. The sentence is
in the discretion of the court. It would not be proper for
the law to select any particular sentence for the purpose
of prescribing that reasons should be giver.' for imposing it.

Some High Court Judges have stated that no speciﬁc
provision is necessary".

817. It has been stated by the Home Minister of a State"
that it would not be advisable to make the law rigid in the
manner suggested. The reply of an Advocate General"
states that no special rule need be enacted for death sent-
ence. Reasons, it is stated, must be given for awarding
any sentence.

1 8. Nos. 97, 236"and 

2 A State Government, S. No. 182.

3 Administration of a Union Territory, S. No. 106.

4 A District Bar Association, S. No. 125.

5 An Inspector General of Police, 8. No. 143.

6 Reply of a State Government, S. No. 182. under question 8.

7 S. No.325 ; S. No.335 ;S. No. 336 ;S.No. 348 ; S. No. 349 ;S. No.
370 ; S. No. 431 ; S. No. 444.

8 An Inspector-General of Prisons, S. No. 264.

9 A High Court, S. No. I40.

10 A State Government, S. No. I43.

II An M.L.A., Lucknow, S. No. 102.

I2 A retired District and Sessionsjudge, Nagpur, S. No. 139.
13 A District Bar Association, S. No. 218.

14 S. No. 393, reply to questions 7(a) and 8.

15 S. No. 262.

16 S. No. 258.

17 S. No. 229.



Provision
requiring
court to
state reasons
zecomonded.

Recommend-
ation.

254

818.  principle Judge1 of a City Sessions Court is also
of the view, that there is no need for a provision requiring
reasons to be stated.

819. Some replies state, that courts invariably give
reasons, but no separate provision is necessary2--"-4-5. Some
District and Sessions Judges have expressed a view to the
same effect".

TOPIC NUMBER 42

Conclusion regarding necessity of provision

requiring
reasons for lesser sentence

820. The replies to question 8 show a cgnsiderable body
of opinion which is in favour of a provision requiring the
court to state its reasons for imposing the punishment
either of death or of imprisonment for life7. Further, this
would be a good safeguard to ensure that the lower courts
examine the case elaborately from the point of View of
sentence as from the point of view of guilt. It would also
provide good material at the time when a recommendation
for mercy is to be made by the court, or a petition for
mercy is considered. Again, it would increase the conﬁ-
dence of the people in the courts, by showing that the dis-
cretion is judicially exercised. It would also facilitate the
task of the High Court in appeal or in proceedings for con-
ﬁrmation in respect of the sentence (where the sentence
awarded is that of death), or in proceedings in revision
for enhancement of the sentence (where the sentence
awarded is one of imprisonment for life).

821. Thus, there appears to be sufficient justiﬁcation
for a provision requiring the court to state its reasons,
whenever it awards either of the two sentence in a capital
case. We recommend the insertion of such a provision in
the Code of Criminal Procedure, 1898.

822. It is possible to think of an alternative, namely,
that the court should be required to state its reasons only
when the sentence of death is passed. Or, the opposite
alternative can be thought of, namely, the court should be
required to give its reasons only where the sentence of
imprisonment for life is passed. Neither of these alterna-
tives can, however, be recommended. The adoption of

S. No. 352.
An Inspector-General of Police, S. No. 263

I
2
3 A District Magistrate, S. No. 286.
4 A State Government, 8. No. 311.
5 Administration of a Union Territory, S. No. 303

6 District and Sessions Judges. S.No. 33o ; S. No. 339 ; S. No. 340 ;
s, No. 347 5 S. No 350 ; S. No. 366; S. No. 415 ; S. No 442.
7 Paragraphs 8o1--882 supra.



255

either alternative would mean, or would be construed as
meaning, a legislative determination that the sentence for
which reasons are to be given is to be the exception, and
the other sentence is to be the rule. Further, the adoption
of the second alternative would mean1 the virtual restora-
tion of section 367 (5) of the Code of Criminal Procedure,
1895.'-, as it stood before the Amendment of 1955.

I See Paragraphs 79r--799, Supra.



Sect ion 9

aﬁeplics to
Question 9.

256
CHAPTER XI

EXEMPTION IN PARTICULAR CASES

TOPIC NUMBER 43
Replies to Question 9

823. Question 9 in our Questionnaire was as follows:-

"Do you consider that even if the sentence of death
is retained certain classes of persons should not be
punished with death, e-g., children below a particular
age, women, etc? What classes of persons should, in
your opinion, be excluded from the sentence of death?

824. The replies received on this question1 mostly ex-
press views about granting exemptions in respect of-

(i) children;

(ii) pregnant women;

(iii) women generally;

(iv) old persons;

(v) diminished responsibility, and

(vi) others.

825. It will be convenient to deal with each category
separately. But, before dealing with these categories, it
would be useful to point out that there are certain replies
which state that no statutory provision is necessary and
that the matter should be left to the discretion of the

Court2-----15.

826. A State Government" is of the view that women
and children cannot be excluded altogether from the death
penalty, as it is difﬁcult to conceive of any extenuating cir-
cumstances merely because of non-age or sex.

1 Paragraph 823, supra.

2 A High Court, S. No. 167.

3 A High Court Judge, S. No. 97.

4 A State Government. S. No. A 182.

5 A State Government, S. No. 143.

6 A Member, Madras Bar Council, S. No. 104.

7 A retired Judge of the Bombay High Court, S. No. 95.
8 An Advocate, (Original Side) Bombay, S. No. 92.
9 A Member of the Raiya Sabha, S. No. 207.

10 A Member of the Raiya Sabha, S. No. 209.

11 Revenue Minister of a State, S. No. 216.

':2 An M.L.A., Lucknow, S. No. I02.

[3 Bharat Sewak Samai, New Delhi, S. No. 145.

t4 S. No. 574. .



257

Another State Government1 has thus expressed its
view:---

"The differential treatment of offenders who have
committed similar offences punishable with death is
already affected by courts or by Governments acting
in pursuance of sections 401-402A of the Criminal Pro-
cedure Code and articles 72 and 161 of the Constitution
of India. Since clemency where extenuation can be
shown is more usual than not, it is not necessary to
classify persons as liable to be sentenced to death and
as not liable to be so sentenced.".

827. According to the view expressed by the Chief
Justice of a High Courtz, the matter should be left to the
discretion of the courts because the age of the offender is
always taken as a good ground for not passing the capital
sentence, and (as regards women), women are not ordi-
narily sentenced to death except in certain cases of cold-
blooded murders like murder by poisoning.

828. A High Court Judge3 has stated that it is not desir-
able to exempt any particular classes of persons from the
penalty of death, but the conventional standards re-
garding awarding of death sentence operate quite satis-
factorily----for example, a pregnant woman or a child of
immature or emotional age not being sentenced to death.

829. According to several High Court Judges' no excep-
tion is necessary, and no change is required in the present
law.

830. According to the Administration of a Union terri-
tory5, discretion in the matter may be left to the courts.

831. A City Civil Court Judge in Bombay has stated
that it will be highly dangerous to exclude women and
children from death penalty, because intending criminals
will then employ women and children to commit planned
and calculated murders. The reply states that the em-
ployment of children in the transportation and possession
of illicit liquor is common, particularly in the city of
Bombay.

832. According to a District and Sessions Judge in the
State of Maharashtra" no provision in law should be made
for exempting particular classes of persons, because it
would be unjust to lay down rules of law excluding certain

S. No. 580.
No 316,
No. 396.
No. 262.
No. 303.
No. 330.

G\uu.r.w-



Children.

258

classes of people from the operation of death sentence
merely on account of their age and sex. It is stated that
it is not possible for the Legislature or .for the Legal Drafts-
man to envisage every possibility or contingency in the
inﬁnite complexity of human life.

833. Several District and Sessions Judges also think that
a statutory exemption is not necessaryl.

834. One District and Sessions Judge in the State of
Maharashtra? has stated that the classiﬁcation of murders
should not be person-wise, but the sentence of death should
be reserved for cases where the act is very brutal and
highly repugnant to morals. The reply states that the
courts do take into consideration the youth and sex of the
offender, but it would not be a good public policy to pro-
vide by law, that no matter howsoever cold-blooded, pre-
meditated and brutal the murder is, the offender would
not be punished with death only because of his youth or
her sex.

835. According to a Bar Association', no exemption
should be granted, because a murderer is a murderer
whether a child or a woman, and the court should treat
them alike.

836. Certain replies" express no views on the subject.

837. We may now take up the opinions expressed as to
each category of persons proposed to be exempted.
Coming, ﬁrst, to children, we may note that a vast number
of replies have favoured a provision for exempting child-
ren below a particular age from death penalty.

838. A State Law Commission5 has suggested that a
person who has not attained the age of 18 years should not
be sentenced to death, except in case of a murder after he
has been convicted of a murder previously or while under-
going a sentence of imprisonment for having committed
a murder.

839. According to the Chief Justice of a High Court'',
persons below the age of 21 may be excluded from the
operation of the sentence of death.

840. According) to a High Court J udge", the death sent-
ence should not e imposed on a person below 25.

I S. Nos. 382, 385, 387, 391, 416, 421, 431 and 436.
2 S. No. 420.

3 S. No. 220.

4 A High Court, S. No. I40.

5 A State Law Commission, S. No. 101.

6 S. No. 393.

7 S. No. 397.



259

841. A State Government' has favoured exemption of
children below 21 years.

842. Exemption for children has been favoured in the
reply of a Minister of a State Government" on the ground
that the brain of a child is supposed to be immature. "He
is unsophisticated. Even murder is committed without
thinking of any consequences. So this is a state of inno-
cence and, therefore, death sentence may be too harsh a
punishment.

843. According to the Law Minister of another State3,
persons under the age of majority should be exempt.

844. Some High Court Judges', a High Court5 and a
State Government'', have replied that the death penalty
should not be imposed on children below 18 years of age.

845. Several other persons and bodies have also favour-
ed the grant of exemption to children. though the ages sug-
gested differ. Certain replies suggest the age of 167. Cer-
tain replies suggest the age of 183. Certain replies suggest
the age of 149. Certain replies suggest the age of 12'''_

846. According to some District and Sessions Judges",
persons below 21 should be exempt.

Many District and Sessions Judges" have suggested
exemption for persons under 18.

847. The age of 20 has been suggested in certain re-
plies". One reply" suggests that a person under the age

I S. No. 242.
2 S. No. 221.
3 S. No. 313.
4 High Court Judges, S.No. I47 ; S. No. 230 ; S. No. 316, reply to
questions 5 and 9.
5 A High Court, S. No. 187.
6 A State Government, S. No. 154.

7 An Advocate-General, S. No. 143 ;A Bar Council, S. No. 1325 .

A Home Secretary to State Government, 8. No. 131 ;A District Bar
Association, S. No. 125 ; An Inspector--General of Prisons, S. No. 166.

. 8 Bar Asso:;ation of India, S. No. 183 ;Supreme Court Bar Associa-
tion, S. No. 110.

9 A Bar Council, S. No. 159 ; An eminent Member of the Bar,through
the Bar Council of India, S. No. 161 ; Indian Federation of Women Law-
yers, Bombay, S. No. 121.

I0 A State Government, S. No. I29 ; A Bar Council, S. No. 116.
11 S. Nos. 341, 375 and 386.

12 S. Nos. 351, 354, 362, 366, 388, 427, 437, 444 and 445.

13 An Advocate, through the Bar Council of India, S. No. 161.
14 A Member, Rajya Sabha, S. No. 206.



Pregnant
women.

260

of 20 should not be sentenced even to life imprisonment.
Some other replies'--3 merely suggest that children should
be exempted, but do not specify the age.

8-18. As pointed out already'', some of the replies to
question 9 are opposed to any statutory provision relating
to the grant of exemption for any class. A few import-
ant points may be stated. Thus, a State Government' has
pointed out that if any provision is made in the law
(exempting particular categories of persons), a habitual
criminal would employ the services of exempted persons

to commit serious crimes.

849. One High Court5, while opposing the suggestion
of grant of exemption to children, has stated that even in
the absence of such exemption, the sentence of death is not
likely to be passed for an offender below 18 except in rare

or exceptional cases.

850. A senior Advocate of the High Court of Bombay"
is of the opinion that while the death sentence should not
ordinarily be awarded to persons under 18 except in ex-
tremely aggravated cases of murder, yet crimes of gross
and brutal violence by young people have become extre-
mely common, and any general exemption on the ground
merely of age, regardless of other circumstances, might
encourage this tendency to stab or shoot on the part of

young persons for a slight cause.

851. A Bar Association7 has stated that sex and youth
need not, in all cases, be a ground for a lenient view, and
has referred in this connection to a Madras case of cold-
blooded murder of a boy aged 18 years for gain, com-
mitted by two boys between 16 and 17 years'*.

852. The second category of persons which we may
discuss is that of pregnant women. A large number of
replies has suggested the exemption of such women from
the death penalty. Such replies have been received from
various sources, e.g., a State Government", High Court

I A Deputy Minister of the Union, S. No. 210.
2 An M.L.A. in Madhya Pradesh, S. No. 213.

3 See paragraphs 825 -835 supra.

A State Government, S. No. 182.

A High Court, S. No. 167.

S. No. 318.

S. No. 426.

The reference seems to be to the case of Govz'ndaswamz', A.I.R. I95
Mad. 372. (The sentence of death was not, however, awarded n that case
owing to a difference of opinion between the two Judges of the Bench which
heard the matter).

9 A State Government. S. No. x29.

00\l oxvu-ts



261

Judgesl, Bar Councilsg, Members of State Legislature', Bar
Associations", Sessions Judges'? and eminent members of

the Bar".

853. One tate Government7 has suggested that women
with small children should be exempted.

854. Exemption of pregnant women from the death
penalty has been suggested by certain Bar Association'',
High Court Judges'', Law Minister of a State"), Govern-
ment of a State" and some High Court Judges of the same
State". ,

855. The Judicial Section" of the Indian Officers' Asso-
ciation in a State favours exemption of pregnant women.

856. As against this, a State Government" and a State
Law Commission" regard the existing provisions of sec-
tion 382, Code of Criminal Procedure as enough. And, as
already noted"), a general opposition to exempting any
class of persons is also evidenced in certain replies.

857. Coming to the third category--women generally,---- Women
we may note that several replies are in favour of exempt-
ing women generally from capital punishment. These re-
plies have been received from various sources, e.g., some
High Court Judges", Ofﬁcersa", Bar Councils", indivi-
duals", and members of the Bar 31.

I Some High Court Judges, 8. Nos. 97 and 147.

2 A Bar Council, S. Nos. 116 and 159.

3 An M.L.A., Madhya Pradesh, 8. No. 213.

4 The Bar Association of India, S. No. 183.

5 A District and Sessions Judge in Guiarat State S. No. :12.

6 An eminent member of the Bar through the Bar Council of India,
No. 161.

7 A State Government, S. No. 154.

8 S. Nos. 223 and 227.

9 S. No. 230.

10 S. No. 253.

II S. No. 261.

12 S. No. 262.

13 S. No. 562.

I4 A State Government, S. No. 311.

15 A State Law Commission, S. No. 101.

16 See paragraphs 825 -835, supra.

17 Chief Justice of a High Court and one High Court Judge, S. No. 130,
Two High Court Judges, S. Nos. 394 and 397.

18 An Inspector-General of Police and a Home Secretary to State
Government, S. No. 131.

19 A Bar Council, S. No. 115.
no S. No. 117.
2! An Advocate, through the Bar Council of India, S. No. 161.

generally ..



262

858. Exemption for women has also been suggested by
.a Member of a State Legislative Assembly', a Bar Associa-
tion'-', a State Government3, a Member of a State Legisla-
ture in U.P.4, Chief Minister of a State", an Advocate
who was formerly a Member of the Lok Sabha'', and by
several District and S-essions Judges7.

'B59. A District and Sessions Judge in Maharashtras, who
favours exemption of women has, however, expressed the
apprehension that it might be regarded as unconstitutional.

860. Certain District and Sessions Judges in other States
are also in favour of exemption of women9.

861. But many of the replies on this point are in the
other direction, and oppose the suggestion to exempt
women. Women, it is stated", should not be protected as
a rule, because some of the most col,-d-blooded murders are
committed by women out of jealousy, desire for gain or
vengeance.

862. A High Court Judge" has stated, that there is no
justiﬁcation for making a distinction between men and
women so far as crime and punishment are concerned,
apart from the fact that such distinction would offend the
Constitution. One ofﬁcer 12 is opposed to any exemption
being given to women, on the ground that they are parti-
sans in murders, and stand on equal footing with men in
the conduct of murders.

The reply of another High Court J udge'3 points out that
the heinousness of a crime is not reduced merely by the
fact that it is committed by a woman, and that there have
been numerous cases in which women have been found
guilty of murderning their husbands in cold-blood. Such
women do not, it is stated, deserve any mercy. These re-
plies are in addition to the general opposition to the grant
of exemption to any class of persons evinced in many
replies.

S. No. 232.
. No. 234.
. No. 242.
. No. 243 (excluding women convicted previously for moral mrpi-

-¥?~U)N>-4
UJC/JU)

tud e

\/

. No. 255.
No. 305.
. Nos. 354, 358, 362, 371, 383, 386, 388, 389, 390, 525 and 551.
. No. 366.

%\lo\UI
(/JC/J'(/Jg;

S No. 433 A District and Sessions Judge in Orissa; S. No.445.

A lgistrict and Sessions Judge in Bihar.
10 A retired District and Sessions Judge, Nagpur, S. No. 139.
II A High Court Judge (Assam High Court), S. No. 97.
12 An Inspector-General of Prisons, S. No. 147.
23 A High Court Judge, S. No. 147.



263

863. A High Court Judgel, who has opposed the grant
of exemption to Women, has stated that women might get
exemption either on the ground of age or general extenuat-
ing circumstances, but women as such should not be ex-
empted. He has stated that the popular notion that
women are less likely to commit murders is not based on
experience. Actually, some of the most cruel and preme-
diated murders have been committed by women.

General exemption for women has been opposed by an
Advocate General?

A distinguished Member of the R'-ajya Sabha3 has stated
that there should be no difference made between the sexes
in the case of capital punishment.

864. A senior Member of the Bombay Bar' has express-
sed this view, while opposing the exemption of women
vgenerally:--

"There is no ground at all for exemption of women.
If anything, a female killer is more brutal and malig-
nant than a male murderer. It is not merely in fiction
and drama that female friends of the type of Lady
Macbeth commit or abet diabolical murders. Besides,
the present generation of militant women might resent
such discrimination as derogatory.".

865. The Pricipal Judge of a City Civil Court and
Sessions Judge in a Presidency Town" has stated that there
-should be no exclusion for women and children, as other-
wise intending criminals will employ Women or children
to commit such crimes.

866. A Judicial Ofﬁcers' Association" has stated that it
has been their experience that Women are equally ferocious
as men, if not more, and that if they are exempt from death
sentence, they might be made a tool in the hands of men
to commit murders.

867. A District and Sessions Judges7 has pointed out that
in actual experience it is not impossible that cases may
arise where a woman may be found to be deserving the
capital punishment.

I S. No. 251.
2 S. No. 229.

3 S. No. 245.
4 S. No. 318-
5 S. No. 434.
6 S. No. 373.
7 S. No. 334.

19--122M of Law ' ' ' '"  



Old per-
sons.

Diminished
responsibi-
my.

264

868. A District and Sessions Judge in the State of Maha-
rashtral has expressed this view:---

"I would not include women in that category. I
have strong opinion as regards women. Their crimes
of murders sometimes are most heinous, motivated by
immoral causes as distinguished from righteous indig-
nation sometimes obtaining in the case of men, and
at the same time they are able to swallow and conceal
quietly the poison and after effects of their crimes.
They should also be met in such circumstances with
death sentence.".

869. A District and Sessions Judge2, while stating that
generally courts are not inclined to sentence women to
death and it is only in serious types of cases that such a
sentence is awarded, is opposed to any statutory exemp-

tion.

870. Several replies would like the exemption of a par-
ticular class of women, e.g., women with small chi1dren3,
unmarried mothers killing the unwanted child". and women
committing murders under extreme and distressed condi-

tions5.

871. We may now come to the question of exemption
of old persons. This exemption has been suggested in a
few replies. Various ages have been suggested, e.g., 80
years", 70 years7, 60 yearsa, and 55 years9.

872. Taking up the defence of "diminished responsibi-
lity", we note that its adoption has been suggested in a few
replies as a ground of exclusion from the death sent-
ence'°--". It may be noted that in reply to another question
a High Court Judge" has also suggested the extension of
this principle as introduced in the United Kingdom, and
one High Court" has suggested legislation generally on

1 S. No. 367.

2 S. No. 415.

3 A State Government, 8. No. 154.

4A Pleader, Calcutta, S. No. 128.

5 A District Bar Association, S. No. 125.

6 S. No. I38.

7 An Inspector-General of Police, S. No. 131.
8 S. No. 117.

9An eminent member of the Bar, throughthe Bar CCl'I?Cil of lrc"a.

S. No. 161.
I0 Shri M.P. Somasekhara Rao, Advocate and Chairman, Gokhale Institute
of Public Aﬁairs, Bangalore, S. No. 126 (under question 9),
n S. No. I22.
12 A High Court Judge, S. No. 105 (under question No. 1).
13 A High Court, S. No. 136, under questions 1 and 3 (a).



265

the lines of the Homicide Act. 1957. Adoption of the pro-
visions of the Homicide Act has been suggested in another

reply also'.
Reply of a High Court Judge3 is as follows :--

"There is the existing structure; sections 299 and
3-00 Indian Penal Code and the different punitive sec-
tions 302 and 304, Indian Penal Code. Perhaps, as in
the Homicide Act in United Kingdom, we could intro-
duce an exception for abnormality of mood viz.,
psychotic state, where the requirements of section 84
Indian Penal Code cannot be satisﬁed. This could be
punishable under section 304, Indian Penal Code.".

The Chief Justice of a High Court3 has stated that per-
sons of unsound mind should be exempt.

A provision for exemption for abnormality of mind on
the lines of the (English) Homicide Act, 1957 has been
suggested by a High Court Judge'.

873. Apart from the categories of persons to be exempt-
ed on the ground of age, sex, mental state or pregnancy,
not many other categories have been proposed. One such
is that of persons killing others due to necessity, duress and
mistake'. Another suggestion is that a person who has a
family dependent upon him, or whose earlier record of life
has been commendable, or whose intelligence quotient is
below average, should be exempted".

Amongst the other exemptions suggested are old per-
sons above the age of 607 and "very old" persons".

It has been stated by a State Government9 and by a
High Court Judge in the same State?" that the Criminal
Rules of Practice of that State provide for recommenda-
tion to the State Government for commutation of death
sentence in the case of women convicted of infanticide, and
that statutory provision for such cases may be made in the
Indian Penal Code.

I A Reader in Criminal Law, S. No. 107, under question 3 (a(.
2 A High Court Judge, S. No. 262, under question 6,

3 S. No. 393.

4 S. No. 262.

5An InspeCtor--General of Police, S. No. 131.

6 S. No. 117.

7 A District and Sessions Judge, S. No. 390.

8 A High Court Judge, S. No. 397.

9 S. No. 261.
10 S. No. 262.

Other C ' :-
goi ics.



Ex:mption
011 the gro-
und otyoung

.i'_'~.,

266

TOPIC NUMBER 44
Exemption on the ground of young age

874. Whether a person, who is below a particular age,
should be exempted by statute from the penalty of death
is a question which requires detailed investigation, in view
of the abundant material available on the subject. The
question has fallen to be decided by the Courts more than
once, and--though it is not easy to reconcile all the deci-
si0ns----the position seems to be, that young age is a factor
which is taken into account by the Court along with other
factors, when considering whether the sentence of death
should be awardedl.

875. There are decisions which take the View that young
age by itself is an extenuating circumstance. But in most
of those decisions, the age was tender,----say, not more than
16 years? In a Calcutta case3, a girl of sixteen years was
charged with the deliberate killing of her husband by
poisoning, and was sentenced to transporatior; in view of

her age.

876. On the other hand, there are decisions that youth
is not a consideration for giving the lesser sentence at all".

877. The majority of the decisions would seem, how-
ever, to take age into account along with other circum-
stances-

878. In this position of the case-law, a statutory provi-
sion----whatever may be the content of that provision-
would be useful as clarifying the position. It may be
noted that the number of children or young persons involv-
ed in cases if homicide is not small5, and the matter is
not, therefore, purely academic.

I See Analysis of case-law, cases number 70 (age and provocation), 60
(Boy of 12), 66B(youth bv itself not an extenuating circumstance), _<6(_vouth
by itself is not sufficient for leniency), 8I(young age and backward class and
beliefin witch-craft), 52 (Girl of less than 17 acting under inﬂuence of hus-
band, etc.), 47 (Woman of 20 and of weak intellect murdering her daughter
of eleven days owing to poverty), 38(Boy of 17, probably a tool in the hands
of others), %3 (Girl of 18, strangling her illegitimate child), 99 (Court refused
to take age--22 years into account), 49 (age and provocation), 83 (youth of
the accused by itself taken into consideration), 49A (age not taken into account,
because the convicts were terrorists and not shown to be domii' ated by rvlrers),
7:: (youth by itself not a ground), 73 (age of 22 years by ittelf not a ground
for lesser sentence), 46 (Boy of 17 acting under the inﬂuence of father). 45
(young age and nrovocation), 42 (sentence of death on a young man probably
under 18 years maintained because of cold-blooded and premeditated
murder),4I (sentence of transporation on alad of 18 enhanced--for deliberate
murder for greed).

2 See Analysis of case-law, case number 99, decisions cited in the foot-
note thereto. Also see cases No. 60 and 66.

3_7asha Ram (1907) II C.W.N. 904, cited in Ratan Lal, Law of Crimes
(1961).. page 771.

4 See In re: Remudu, I.L.R. 1943 Mad. I48:A.I.R. 1943 Mad. 69 (Moc-
kett and Happell, JD.

5 See ﬁgures regarding number of juvenile offenders involved in homi-
-cide, etc., given separately.



267

879. There are provisions in the Childrens' Acts of
several States2, prohibiting the awarding of a sentence of
ileaithdin thebcasci of personsunder a C3rr't[::'i1i1ll age. t'l'he ages
a1 own y t ose pI'OVlS10I1S vary. e mser ion 0 a
provision, applicable to the whole of lmia, would serve
the purpose of bringing uniformity also.

Further, the replies received to our Questionnairez
snow that a vast number of persons are in favour of such
an exemption.

880. It may be noted that, in England, a person under
the age of 18 cannot be sentenced to death, but has to be
detained during Her Majestys pleasure?

881. Similar provisions are contained in the laws of
many other countries also'.

Under the English provisions, it is the age at the time
of the commission of the offence that is taken into account.
Section 53(1) of the Children and Young Persons Act,
1933 as amended by section 16, Criminal Justice Act, 1948
and by section 9(3) of the Homicide Act, 1957, provides as
follows:--

"(l)--Sentence of death shall not be pronounced
on or recorded against a person convicted of an
offence, who appears to the Court to have been under
the age of eighteen years at the time of offence being
committed. Nor shall any such person be sentenced
to imprisonment for life under section 9 of the Homi-
cide Act, 1957 . . . . ..".

882. Whether the age of 18 should be enhanced to 21
was a question into which the Royal Commission went in
great detail?

The Select Committee on Capital punishment, 1930, had
recommended that the age should be raised to 21 on the
ground that that was the age when full civil responsibility
was assumed. Before the Royal Commission of 1953, con-
ﬂicting views were expressed about the raising of the age-
limit. Most of the medical witnesses were in favour of
raising 'Eh: age, because, in their opinion, persons under
the age of 21 should not be regarded as fully mature and
the brain is not fully developed until after that age. The
Society of Labour Lawyers stressed the argument that, if
a person was so immature and irresponsible that he could
not vote or own a legal estate in land or settle an action

I A summary of the provisions in Childrens' Acts is given elsewhere.
2 Replies to question 9 are summarised in paragraphs 824-873.

3 See section 53, Children and Young Persons Act, 1933, as amended

in 1948; and Archbold (I962). paragraph 684.
4Compa1-arive material on the subject is given separately.
5 KC. Report, pages 65 to 72, paragraphs 188-209.



268

without leave of the Court, he should not be subjected to
the extreme penalty. The younger the offender, the more
chance there was of reform and rehabilitation. Witnesses
opposing the proposal, however, thought that beyond
the age of 18, the matter should be left to the discretion
of the Crown in exercising the prerogative of mercy.
Many members of the Royal Commission were of the View
that "of all proposals that could be made for reducing the
number of cases in which the capital sentence is executed,
there was none that had a stronger and clearer claim to
support than the proposal to raise the age-limit." How-
ever, some of the members were not in favour of this
recommendation. They thought that the Commission
could not overlook the fact that grave increase in violent
crimes since the beginning of the war had not yet passed
its peak, so far as persons between 17 and 21 were con-
cerned; and that public opinion would not favour the
removal of the restraining inﬂuence of the death sentence
on such persons. Ultimately, the Commission recommend-
ed', by a majority? of 6 to 5, that the statutory age-
limit below which a person may not be sentenced to death
should be raised to 21.

883. It would be interesting to trace the history of the
provision in the English Act3. The Childrens' Act, 1908,
provided that a person, under 16 years of age at the time of
conviction, should not be sentenced to death but should
be sentenced to be detained during His Majesty's pleasure.
The Childrens' and Young Persons' Act, 1933, section 53,
re--enacted this provision in substance, with one change of
16 years replaced by the age of 18 at the time of convic-
tion. Section 16 of the Criminal Justice Act, 1948, extend-
ed the scope of this provision to persons under 18 at the
time when the offence was committed. Section 9(3) of
"the Homicide Act, 1957, amended the provision in the
1933 Act, the important change made being that a person
under the age of 18 years was not only not to be sentenced
to death but he was also not to be sentenced to imprison-
ment for life. This change was necessary because, other-
wise, under section 9(1) of the 1957 Act, whenever a court
is precluded from passing a sentence of death "the sen-
tence shall be one of imprisonment for life". It is stated
that no person under 18 years of age has in fact been
executed in England since 18874. It would seem, however,
that before that there had been such cases. For example,
in 1801, a boy aged 13 was publicly hanged for breaking
into a house and stealing a spoon; and in 1808, a girl aged

I. R.C. Report, page 68, paragraph 195, and summary at page 275, item
(12).
For reasoning, see R.C. Report, paragraphs 196-206.

2. Majorizy-----Sir Ernest Gowers, Mrs. Cameron, Mr. Macdonald, Mr.
Mann, Sir Alexander Maxwel and Dr. Slater.

Minority -- Mr. Fox-Andrews, Dame Florence Hancock, Sir Willium
Jones, Professor Montgomery and Mr. Radzinowicz.

3. R.C. Report, page 64, paragraph 183.
4. R.C. Report, page 64. paragraph 183.



269

2/ was hanged at Lynn, and in 1831, a boy of 9 was hanged
at Chemsford for having set ﬁre to a house'.

884. We may also refer here to the provision adopted in
Canada on the subject. The Canadian Committee? noticed
that the invariable practice in Canada had been to com-
mute the sentence of death of all persons under 18, and
that, since 1945, the sentence had rarely been executed
against a person 20 years and under. The Committee
balanced the consideration that youth must always be a
mitigating factor against the fact that some of the most
callous crimes are committed by young offenders, showing
a total disrespect for life or property. After taking note
of the discussion in the report of the United Kingdom
Royal Commission, the Canadian Committee concluded
that it would be proper to amend the law to provide that
the death penalty should not apply to a person of the age
of eighteen years or less at the time of commission of the
offence. The Committee also recommended strongly that,
except in extraordinary cases, the present practice of
commuting most death sentences passed on persons under
'21 should be continued.

885. The recommendation for amendment of the law
has been carried out by amendment of the Criminal Code
of Canada, made in 19615. The relevant section now pro-
vides as follows:----

" (3) Notwithstanding sub-clause 1, a person
who appears to the court to have been under the age
of 18 years at the time he committed a capital murder,
shall not be sentenced to death upon conviction there
for but shall be sentenced to imprisonment for life.".

886. We feel that having regard to the need for uni- Reéommen'

formity to the view expressed on the subject, and to the Seagtgﬁging
consideration that a person under 18 can be regarded as age_
intellectually immature, there is a fairly strong case for
adopting the age of 18 as the minimum for death sentence.
'We are aware that cases will occasionally arise where a
person under 18 is found guilty of a reprehensible killing,
or, conversely, a person above 18 is found to be immature
and not deserving of the highest punishment. A line has,
however, to be drawn somewhere, and we think that 18
can be adopted without undue risk.

887. We, therefore, recommend that It person, who is Recommen-
under the age of 18 years at the time of the commission of dawn-
the offence/, should not be sentenced to death. A provision
to that effect can be conveniently inserted in the Indian
Penal Code, as section 55B.

I See Christoph, Capital Punishment and British Politics, (1962), page
15.
2 Canadian Report, page 18, paragraph 76.
3 Section 206(3), Criminal Code (Canada).



Exemption
to women
generally.

Exemption
for pregnant
women.

270

TOPIC NUMBER 45
Exemption to women generally

888. We have considered the question whether women
generally should be exempted from the sentence of death.
While we appreciate that it would be a natural desire to
avoid the death sentence on females in most cases, we do
not think that a general exemption is called for. A woman
may be guilty of a brutal cold blooded murder, and the
case, therefore, may be one deserving the highest penalty
of the law. In a case before the Supreme Court that was
the situation'. Sex may have to be weighed against other
circumstances.

889. The matter was gone into by the Royal Commis-
sion also". Their conclusion was that, if there was a valid
case for the retention of capital punishment, it must apply
to women as well as to men, "although possibly not to an
equal degree". The Commission found no adequate
reason for the law to differentiate between the two sexes.
It also noted that murders by women included atrocious
and cold blooded cases of baby farming and of poisoning
over a long period. This conclusion of the Royal Commis-
sion was shared by the Canadian Committee also5.

890. In India, the case for general exemption of women
is still less strong, the death penalty not being mandatory.
The question of women placed in a particular situation,
such as pregnant women, or women guilty of murder of
their own children within a particular period after the
delivery, is a separate onei.

TOPIC NUMBER 46
Exemption for pregnant women

"891. The question whether any exemption should be
given by statute to pregnant women may be considered. A
provision on the subject, in some form or the other, is
found in the laws of certain countries". The law in some
countries provides that the sentence of death shall not be
passed on pregnant women. In some countries, the sen-
tence of death is not to be notiﬁed till the lapse of 40 days
after child birth. In some countries, the execution of the-
sentence is merely to be postponed. The period of post-
ponement is also speciﬁed by the laws of certain coun-
tries. For example, in Greece, it is postponed for six
months in case of breast-feeding and otherwise for 30 days;

1 Analysis of case-law, Case No. 4, (Nisa Stree, A.l.R. 1954 S.C. 279).
2 R.C. Report, page 65, paragraphs 185~186.
3 Canadian Report, page 18, paragraph 75.

4 See separate discussion as _to pregnant women and infanticfde; para-
graphs 89I----894 and 895----898, infra.

5 Comparative material is given elsewhere.



271

892. The English provision on the subject is contained
in the Sentence of Death (Expectant Mothers) Act', 1931,
sections 1 and 2 of which run as follows:--

"Section 1.--Where a woman convicted of an
offence punishable with death is found in accordance
with the provisions of this Act to be pregnant, the
sentence to be passed on her shall be sentence of im-
prisonment for life instead of a sentence of death."

Section 2.~(1) Where a woman convicted of an
offence punishable with death alleges that she is
pregnant. or where the court before whom a Woman
is so convicted thinks fit so to order, the question
whether Or not the Woman is pregnant sléall, before
sentence is passed on her, be determined  a jury.

(2) Subject to the provisions of this sub-section,
the said jury shall be the trial jury, that is to say, the
jury to whom she was given in charge to be tried for
the o1"i°ence, and the members of the jury need not be
resworn:

Provided that----

(a) if any member of the trial jury, either
before or after the conviction, dies or is discharg-
ed by the court as being through illness incapa-
ble of continuing to act or for any other cause,
the inquiry as to whether Or not the woman is
pregnant shall proceed without him; and

(b) where there is no trial, jury have dis-
agreed as to whether the Woman is or is not preg-
nant, or have been discharged by the court with-
out giving a verdict on that question, the jury
shall be constituted as if to try whether or not
she was ﬁt to plead, and shall be sworn in such
nit-nnezo as the court may direct.

(3) The question whether the woman is pregnant
or not shall be determined by the jury on such evi-
dence as may be laid before them either on the part
of the woman, or on the part of the Crown, and the
jury shall find that the woman is not pregnant unless
it is proved aﬁirmatively to their satisfaction that she
is pregnant.

(4) Where on proceedings under this section the
jury ﬁnd that the woman in question is not pregnant,
the woman may appeal under the Criminal Appeal
Act, 1907, to the Court of Criminal Appeal, and that
court, if satisﬁed that for any reason the ﬁnding
should be set aside, shall quash the sentence passed

c. 24.

1 The_Scntence of Deathjaixpectant Mothers) Act, 1931, 21 & 22 Geo. 5, .



Infanticide
by woman_

272

on her and instead thereof pass on her a sentence of
imprisonment for life,

(5) The rights conferred by this section on a
woman convicted of an offence punishable with death
shall be in substitution for the right of such a woman
to allege in stay of execution that she is quick with
child and the last mentioned right shall cease as from
the commencement of this Act.".

893. The provision in India is contained in section 382
of the Code of Criminal Procedure, 1908, which may be
quoted':-« L, NE.

"382. If a woman, sentenced to death, is found to
be pregnant, the High Court shall order the execution
of the sentence to be postponed, and may, if it thinks
ﬁt, commute the sentence to imprisonment for life.".

M This section leaves the matter to the discretion of the
High Court, which can--

(i) either postpone execution of the sentence, or

(ii) commute it to the lesser one.

894. Detailed provisions as to medical examination of
the woman, or as to an appeal by her from a ﬁnding that
she is not pregnant which are contained in section 2(4) of
the English Act, or in the laws of certain other countriesz,
are not found in the Indian Code. Since. however, this has
not caused any practical diﬁiculty, it does not appear to
be necessary to make any change in the law by inserting
elaborate provisions.

TOPIC NUMBER 47
I nfanticide

895. There is one speciﬁc type of homicide by women
which requires some detailed consideration. That is infan-
ticide by a woman of her own child. within a certain
period after the delivery. It is believed that. within cer-
tain period after delivery, the mother would not have
fully recovered from the effects of giving birth to the
child; and the balance of her mind would, therefore; have
been disturbed. In such a situation, it would be just not
to impose the sentence of death on her. In fact, though
there is no statutory provision on the subject in India,
courts have, in the few cases of this type that have been
reported. exercised their discretion in favour of the lesser

sentence?
I. Section 382, Code of Criminal Procedure, 1898.

2. Comparative material given elsewhere may be seen.
3. For example, see Analysis of case-law, Case No. 53. Also see, ibid, Case

No. 47.



273

896. This subject has had a long history in Englandl. A
private member's Bill, "The Child Murder Trial Bill,
1922", was passed into law as the Infanticide Act, 1922.
That Act provided that where a woman, by any wilful act
or omission, causes the death of her newly-born child in
such circumstances that, but for that Act, the offence
otherwise would have amounted to murder, but at the
time she had not fully recovered from the effect of giving
birth to the child and by reason thereof the balance of
her mind was then disturbed, then she would be guilty
of infanticide and might be dealt with and punished as if
she had been guilty of manslaughter. Dilﬁculties arose as
to the scope and meaning of the expression "newly born
child"; and the Infanticide Act of 19382 repealed this Act
and substituted a provision, whereunder a woman who
cause death of her child under the age of 12 nzonms would
get the protection where the balance of her mind was dis-
turbed by rezzsoii of her not having fully recovered from
the effect of c..._, birth. Even in cases where the Act of
1938 does not apply, for example, where the child is more
than a year old, the practice in England is to commute the
sentence".

Section 1 of the Infanticide Act, 1938*, is quoted
below:--

"1. (1) Where a woman by any wilful act or omis-- Oﬂence of
sion causes the death of her child being a child under Iﬂfanticidt
the age of twelve months, but at the time of the act
or omission the balance of her mind was disturbed by
reason of her not having fully recovered from the
effect of giving birth to the child or by reason of the
effect of lactation consequent upon the birth of the
child, then, notwithstanding that the circumstances
were such that but for this Act the offence would
have amounted to murder, she shall be guilty of
felony, to Wit, of 2'nfanticicle_. and may for such offence
be dealt with and punished as if she had been guilty
of the offence of manslaughter of the child.

(2) Where upon the trial of a woman for the
murder of her child, being a child under the age of
twelve months, the jury are of opinion that she by
any wilful act or omission caused its death, but that
at the time of the act or omission the balance of her
mind was disturbed by reason of her not having fully
recovered from the effect of giving birth to the child
or by reason of the effect of lactation consequent upon

I. See detailed discussion, see R.C. Report. pages 57 to 59, paragraph
I_<4----r62.
2. The Infanticide Act, 1938 (I & 2 Geo. 6 c. 36).
3. R.C. Report, page 59, paragraph 162, and page 277, paragraph 646.
4. The lnfanticide Act, 1938 (r and 2 Geo. 6, c. 36).



274

the birth of the child, then the jury may, notwith-
standing that the circumstances were such that but
for the provisions of this Act they might have return-
ed a verdict of murder, return in lieu thereof a ver-
dict of infanticide.

(3) Nothing in this Act shall affect the power of
the jury upon an indictment for the murder of a child
to return a verdict of manslaughter, or a verdict of
guilty but insane, or a verdict of concealment of birth,
in pursuance of section sixty of the Offences against
the Person Act, 1861, except that for the purposes of
the proviso to that section, a child shall be deemed to
have recently been born if it had been born within
twelve months before its death.

(-1) The said section sixty shall apply in the case
of the acquittal of a woman upon indictment for infan-

ticide as it applies upon the acquittal of a woman.

upon an indictment for murder."

Mere age of the child is not sufﬁcient; the balance
of mind of the mother should also have been dis-

turbedl.

897. It may be noted, that a provision reducing the
punishment in the case of infanticide exists in the laws of
a few other countries? A typical provision is that found
in the Criminal Code of Canada', sections 204 and 208 of
which are quoted below:--

"Slectton 204-A female person commits infanti-
cide when by a wilful act or omission she causes the
death of her new1y--born child, if at the time of the
act or omission she is not fully recovered from the
effects of giving birth to the child and by reason
thereof or of the effect of lactation consequent on the
birth of the child her mind is then disturbed.

Section 20'8--Every female person who commits
infanticide is guilty of an indictable offence and is
liable to imprisonmen? for ﬁve years.".

898. We have considered the question whether it is
necessary to insert any provision in the Indian Penal
Code on the subject. In India the question of sentence
for murder is in the discretion of the court'', and it is open
to the court to impose the lesser sentence of imprison-
ment for life where the mind of the offender appears to
have been influenced by the effects of recent child-birth?

I R. v. S0aneS(I948) I All. E.R. 289.

2 See R.C. Report, page 447, paragraph 30, and succeeding paragraphs.
3 (Canada) Criminal Code, sections 204 and 208.

4 Section 302, Indian Penal Code. I

5 See Analysis of Case-Law, Case No. 53.



275

Where even the sentence of imprisonment for life is re-
garded as harsh, the court can make a recommendation to
the State Government for suitable commutation of the
sentence. For 'Ll1-use rcassc-ns. we do not recommend the
»insem'o;.a of any speciﬁc p.7'OrJiSi077, on the subject. In fact,
by keeping the matter ﬂexible, we can avoid the difficul-
ties which arise if a rigid period is put in the provision.
The question of burden of proof, namely, whether it is
the duty of the defence to bring the case within the lesser
offence of infanticide. would also be avoided.

CHAPTER XII
DIMINISHED RESPONSIBILITY
TOPIC NUMBER 48

899. A topic which merits some detailed discussion

is Diminished

the concept of "diminished responsibility", in relation to r-°sp°"Sibi'

the law of homicide. This concept, borrowed from Scot-
.land, has found a place in the Homicide Act, 1957, sec-
tion 2. The section" runs as follows:---

"2. (1) Where a person kills or is a party
killing of another, he shall not be convicted of mur-
der if he was suitering from such abnormality of mind

liry.

Person
to the suffering

from dimi-

nished

1'63-

(whether arising from condition of arrested or retard- Ponsibilitw

ed development of mind or any inherent causes or
induced by disease or injury) as substantially im-
paired his mental responsibility for his acts and omi-
ssions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the de-
fence to prove that the person charged is by virtue of
this section not liable to be convicted of murder.

(3) A person who but for this section would be
liable. whether as principal or as accessory, to be con-
victed of murder shall be liable instead to be convict-
ed of manslaughter.

(4) The fact that one party to a killing is by vir-
tue of this section not liable to be convicted of mur-
der shall not affect the question whether the killing

amounted to murder in the case of any other party to
it.".

900. The plea of diminished responsibility was intend-
-ed to 'supplement the plea of insanity, z'.e., to cover those
cases in which the accused, though mentally incapacitated,
did not come within the strict rules relating to insanity?

1 Section 2, Homicide Act, I957.

2
S6oL¥.C.Dbt,CI. . . d .
1956); 2:2 House-co? isotdso D:tI;251t3ese,t(3SdlI. 336"; (rlélilrclit 7f,eq1'9(5I;I)'?Vember 15'



276

901. The Royal Commission on Capital Punishment',
after an elaborate discussion of the doctrine, was unable
to recommend its adoption in England. Though the doc-
trine as known to the Scottish law was conﬁned to mur-
der, the doctrine as known to the laws of several Euro-
pean countries touched all crimes, and not merely murder.

902. The conclusions which the Royal Commission
reached on the subject2 may be thus summarised:--

(i) Diminished responsibility as known in Europe
is a concept of general application relevant for all
crimes and not only for murders or for capital offen-
ces. The forms of mental abnormality, including psy-
chopathic personality, which may cause diminution of
responsibility, are of common occurrence and are of
importance in relation to a wide range of offences;
and to consider whether the doctrine of diminished
responsibility in this wide sense should be adopted in
England would take the Commission far beyond its
terms of reference?

(ii) The 'Scottish doctrine of diminished respon-
sibility on the other hand has a far narrower scope. It
is conﬁned to murder. It is a device to enable the
courts to take account of a special category of mitiga-
ting circumstances in cases of murder and to avoid
passing of sentence of death in cases where such cir-
cumstances exist. So radical an amendment of the law
of England would not be justiﬁed for this limited pur-
pose".

(iii) The jury should, however, be empowered to
take account of extenuating circumstances, so as to
correct the rigidity which is the outstanding defect of
the then existing law of capital punishment".

903. However, the doctrine has been introduced by the
Homicide Act, 1957. Under that Act"', even if a person is
not technically insane within the meaning of the M'Nagh-
ten Rules, he is entitled to a lesser punishment if he shows
that he was suﬁering from such abnormality of mind
(whether arising from a condition of arrested or retarded
development of mind or any inherent causes or induced by
disease or injury) as has substantially impaired his men-
tal responsibility for his acts and omissions in doing or
being a party to the killing.

' R.C. Report pages 143 to 144, paragraph 411-413. Also see pages
426 et seq.

2 R.C. Report, pages 143 and 144, paragraphs 411-413.
" R.C. Report, page 144, paragraph 413.
' R.C. Report, page 144, paragraph 413,
5 R.C. Report, page 208, naragraph 595.
' Section 2(1), Homicide Act, 1957 (5 & 6 Eliz. 2 c. 11).



277

904. As has been observed', the effect of proof of dimi-
nished responsibility is to reduce the quality of the crime
from murder requiring the obligatory sentence of death
(if capital murder) or life imprisonment (non-capital
murder ,'~ to manslaughter, where the sentence is in the
discretion of the court, and may range from ﬁne to any
term of imprisonment to life imprisonment. The difference
between this defence and that of insanity is--

(i) insanity results in acquittal and is a defence
to every crime, While diminished responsibility is a
defence only to murder, and merely reduces the crime
to manslaughter; .

(ii) diminished responsibility covers not only
lesser forms of insanity but also different forms of
insanity and mental abnormality not covered by the
technical M'Naghten rules.

935. As would appear from the leading Scottish case of
H. M. Advocate v. Bmithwatet, even if a man changed with
murder is not insane. still the Scottish law recognises that
"if he Was suffering from some inﬁrmity or aberration of
mind or impairment of intellect to such an extent as not
to be fully accountable for his actions. the result is to re-
duce the quality of his offence--from murder to culpable
homicide. Approving a passage from the change in the
case of Savage", the court stated that there must be a
state of mind which is bordering on, though not amount-
ing to, insanity, and there must be a mind so affected that
responsibility is diminished from full responsibilty to par-
tial responsibility. Again, citing previous cases, the court
said that the question to be put to the jury Was. "Was he,
owing to his mental state, of such inferior responsibility
that his act should have attributed to it the quality not of
murder but of culpable homicide'."'.

906. As the court pointed out, stress had been laid, in
all the formulations, upon the weakness of intellect, aber-
ration of mind, mental unsoundness, partial insanity, great
peculiarity of mind, and the like.

907. This exposition of the Scottish law has, after the
passing of the Homicide Act, been expressly approved
(for the interpretation of the defence as adopted in the
Homicide Act) by the Court of Criminal Appeal'.

I See the article on the I-ICmic'de Act by AL. Armitag-3, (I957) Camb-
ridge Law Journal 183, I87, I88, I89.

2 H. M. Advocate v. Braithwaze, 1945 J .C. 55 extracted in R.C. Report, .

Page 349-
3 Savage, 1923 J.C. 49.

4 R. v. Dunbar, (1957) 3 W.L.R. 330; 333: (1957) 2 Ali. ER. 737"

(C.C.A.)

Scot Law.



. Irresistible
mpulse.

278

908. An English case of the Court of Criminal Appeal'
may be cited to illustrate how the defence has been actual-
ly applied in practice in England. There, the appellant
was charged with the murder of a young girl whom he
had strangled and whose dead body he had mutilated.
He admitted the guilt, but pleaded the defence of _dimi-
nished responsibility. The uncontradicted evidence of the
senior medical witnesses was that the accused was a
"sexual psychopath", and suffered from abnormality of
mind, in that he had violent perverted sexual desires
which he found it difficult or impossible to control. Ex-
cept when under the inﬂuence of such perverted sexual
desires, he might be normal. They (the medical witness-
es) were of the opinion that the killing was done under
the inﬂuence of those desires. and that though he was not
"insane" in the technical sense, his sexual psychopathy
could be described as "partial insanity". The Judge direct-
ed the jury that if the appellant killed the girl under an
abnormal sexual impulse which he found impossible to
resist, but was otherwise normal, the section would not
apply. The jury found him guilty of murder. On appeal,
on the ground of misdirection, the court allowed him the
defence of diminished responsibility, and pointed out that
"abnormality of mind" as used in the Homicide Act had
to be contrasted with the time-honoured expression "de-
fect of reason" used in the M'Naghten rules, and appeared
to be wide enough to cover the mind's activities in'all its
aspects, not only the perception of physical acts and
matters and the ability to form a rational judgment as to
whether an 'act is right or Wrong, but also the ability to
exercise the will power to control physical acts in accord-
ance with rational judgment". The court pointed out that,
before the passing of the Homicide Act, a person could es-
cape liability for murder or any other crime requiring
mens rea if he was insane, that is to say, "he was labour-
ing under such a defect of reason from disease of the mind
as not to know the nature and quality of the act and what
he was doing. or if he did know it, that he did not know
that he was doing Wrong". That test was a rigid one
"because it related solely to a person's intellectual ability
to appreciate the physical act that he is doing and whe-
ther it is wrong. If he has such intellectual ability, his
power to control his physical acts by exercise of his will
is irrelevant. Diminished responsibility. on the other
hand, took note of every mental abnormality.

909. The court proceeded to lay down certain other pro-

'oo'='tions (apart from the interpretation of "abnormality
of mind". already noted) which may be summarised
'thus:

(i) VVhether the accused was suffering from

abnormality of mind, as so interpreted, is a question
for the jury. On this question medical evidence is no

r R. v. Byrne, (1960) 3 W.L.R. 440, 444 (CC.A.).



279 "'

doubt of importance, but the jury is entitled to take
into consideration all the evidence and not bound to
accept the medical evidence.

(ii) The aetiology of the abnormality of mind,
namely, that it arose from a condition of arrested
development, etc., seemed to be a matter 1;' be deter-
mined on expert evidence.

(iii) Assuming that there was abnormality of
mind from the speciﬁed cause, the crucial question
nevertheless was, "Was his responsibility for his acts
in doing or being a party to the killing sul>sta.ntiall'_i;
impaired?" This was a question for the jury. Medical
evidence was. of course, relevant, but as a question
involving a decision of "substantial impairment", it
'was a matter upo'i which juries may quite legitimate-
ly differ with doctors.

(iv) When the abnormality affects his control, the
distinction between "he did not resist his impluse"
and "he could not resist his impulse" is one which is
incapable of scientiﬁc proof. These problems, in the
present state of medical knowledge, are scientiﬁcally

insoluble, and could be approached only in a broad
common-sense way.

(v) On the evidence in the case, the accused was
"what would be described in ordinary language as on
the border line of insanity." The test of "border line"
has been expressly approved by Lord Goddard.'. He
also pointed out that one cannot go into nice distinc-

tions betwen mind and emotion, or intellect and emo-
tion.

910. Another illustration of the application of this de-
fence may be cited. In R. 17. Mather-;on'-' the appellant who
~c:.r.~;: fifty--t\vo years old and a confirmed sodomite, murdered
a 'toy of fifteen by smashing his head. He was convicted of
capital murder. but on appeal. the Court of Criminal
Appeal accepted the defence of diminished responsibility.
One prison medical ofﬁcer.-- one physical superintendent
raid one consulting psychiatrist agreed that, while he was
:1»: insane. his mind was abnormal and substantially im-
_I':l'.ll'ed his mental responsibility. Giving the reasons for
conclusion. the prison medical officer stated that the
_., 'isoner's intelligence (measured by certain tests) was
not more than 73. while that of a normal person would be
300. The consulting psychiatrist called attention to the
records showing that the appellant had, on many occasions,
:<\\'allowed razor blades and inserted nails in his body. The

  

1

R. v. Spriggs, (1958) I All. E.R. 3oo, 303. 304 (C.C.A.).

Illustrative
Cases.

2 R. v. Mazheson, (1958) 2 A11. ER. 87, 89. (Lord Goddard C.T. _

Strcatﬁelﬁ, Slade, Donovan and Havers II.) (CCA.).

20-122 M of Law



Neg: iv:
1 llustrations.

Burden of
proof of di-
minishcd
responsibi-

I ity.

280

physical superintendent agreed that the mental develop-
ment was rather less than what one expects of a child of
ten. Since this evidence was unrebutted, the defence had
been satisfactorily proved. Evidence of premeditation
could not rebut the defence, because "an abnormal mind
is as capable of forming an intention and desire to kill/as
one that is normal; it is just what an abnormal mind

might do."
911. A negative case, R. v. Walden', in which the de-»
fence was not accepted, may be cited. There, Walden, a

lecturer in a college, had proposed marriage to Joyce. a
girl employed in the ofﬁce of the college. The girl declined
the proposal and favoured a student of the college, Neil. A
week later, Walden left a class which he was taking, and
in the corridor on his way to his locker, he passed Neil
who was talking to Joyce. Returning from his locker, he
shot Neil through the back, went into the office and shot
Joyce through the back six times, the last three shots
being ﬁred into her back as she lay on the ground. Both of
them died. Walden then ran up to his car, which he later"
abandoned with the pistol which he had used. He was
found three weeks later by a constable in a shelter. IL?-
dence about the murder was overwhelming, but Walden
tried to prove abnormality of mind impairing his mental
responsibility. While one consulting psychiatrist was of
the opinion that Walden was suffering from a severe type
of abnormality and was suffering from paranoia and was
grossly abnormal, the senior prison medical officer and
another consulting psychiatrist disagreed and said that
the accused had no abnormality of mind. The jury reject-
ed the defence, and on an appeal on the ground of mis-
direction, the court dismissed the appeal. The objection in
appeal was to the summing up by the Judge to jury to the
effect that the jury had to decide whether the accused
was "Wandering on the border-line--being between sane
and insane", so that he was not fully responsible for what
he had done. The Court found nothing wrong in this
summing up, on the facts of the case.

912. Regarding onus, section 2(2) of the Homicide Act.
1957, provides that it should be for the defence to prove
that the person charged is (bv virtue of this section) not
liable to be convicted of murder. The Court of Criminal
Appeal? has held, that when a plea of diminished respon-
sibility is put forward, the burden of proof on the accused
is not so heavy as the burden which rests on the prosecu-
tion to prove its case beyond reasonable doubt, and that
the burden on the defence is discharged if the evidence
justifies the conclusion that the balance of probabilities is'

I R. V. Walden, (1959) I \V.L.R. 1008; (1959) 3 AllE.R. 2c_:
(C.C.A.7.
2 R. v. Dunbar, (1957) 3 W.L.R. 330; (1957) 2 All E.R. 737.



281

in favour of the defence. The court followed the leading
case as to burden of proof, R. v. Caxrlr-Brfantl.

913. Recent cases on the section in the English Act have
clariﬁed the application of the provision? The defence of
diminished responsibility is sometimes put forth as a false
excuse. In a recent case", the appellant, while robbing a
bank, shot and killed a bank employee. The defence was
that he felt that he was possessed by the spirit of a de-
ceased American gangster, Legs Diamond. who controlled
his acts. Two psychiatrists gave evidence that they be-
lieved that this delusion was a genuine one; two doctors
(for the Crown), however, said that he was "shamming".
The appellant was convicted and sentenced to death. The
appeal was dismissed by the Court of Criminal Appeal.

914. Irresistible impulse has also come up. In R. Y.
King", the defendant, a Ugandan, was charged with the
murder of four persons. His defence was diminished res-
ponsibility within s. 2 of the Homicide Act, 1957, to an
"irresistible . . . . ..impulse". On his behalf. a doctor gave
evidence that the behaviour of the defendant's mothcr--in-
law would be a stimulus such as might well cause a person
of his racial type to lose his self-control. The defendant
suffered from no abnormality of mind, either before or
after the killings. McNair J. directed the jury that irre-
sistible impulse was no defence to a charge of murder,
and that if the defendant's conduct was merely the normal
reaction for his racial type, it was not an abnormality at
all. The defendant was convicted of all the murders. and
applied for leave to appeal. The Court of Criminal Appeal
(Lord Parker C. J.. Winn and Atkinson JJ.). dismissing
the application, held (1) that the Judge's direction was
entirely correct; and (2) that there was in any event no
evidence of abnormality arising from any causes that
would bring the caseewithin s. 2 of the Act.

Irresistible impulse, if arisz'n_q from abnormality of
mind. would perhaps, be covered-"--".
1 R. V. (.'1rr-Brzlznt (C.C.A.\,, (1943) 2 r'\ilF..R. I56;(_I943)K.B. 607
(C.C.A.). I
_ 2 .\'lost of the cases are discussed in the article by Richard F. Sparks'
"Dnnimshe-.i Responsibility in theory and practice" (Jan, 1964)_ Modern
Law Review, page 9.

3 R. V. '1'crr_v, (1961) 2 \X'.L.R. 961 (C.C.A.).

4R. \'.I«'{:z_g, z'Dccember 3. I963) Facts taken from (1963) 12 Current
Law, Item :93 (December, 1963). (C.C..~\.).

8 5.:cc article on the Homicide Act, in (ro57) Camb. Law Journal
1 3, 1'9.

6 See also Russell on Crime (1964), Vol. 1, page 125.



282

915. In a recent case', the meaning of the expression
"substantially" was considered. The facts were these:
The defendant, who pleaded diminished responsibility
under section 2(1) of the Homicide Act, 1957, was charged
with the murder of his wife. The jury convicted him of
murder, and he was sentenced to life imprisonment. He
appealed to the Court of Criminal Appeal. In appeal, the
ground taken was that the judge had misdirected the jury,
and that, had it not been so, the verdict of the jury would
have been that of manslaughter with diminished respon-
sibility.

916. In directing the jury, Ashworth J ., of the Birmin-
gham Assizes had said that according to medical evidence,
the accused was suffering from mental abnormality, but
that the accused must also show that the mental abnor-
mality substantially impaired his mental responsibility. In
explaining the word "substantially", the Judge said:

"I am not going to try to ﬁnd a parallel for the
word "substantial". You are the judge, but your own
commonsense will tell you what it means. This far I
will go. Substantial does not mean total, that is to say,
the mental responsibility need not be totally impair-
ed, so to speak. destroyed altogether. At the other end
of the scale substantial does not mean trivial or mini-
mal. It is something in between, and Parliament has
left it to you and other juries to say on the evidence,
was the mental responsibility impaired, and if so,
was it substantially impaired?".

917. The Court of Criminal Appeal said that the direc-
tion given to the jury on the meaning of the word "subs-
tantially" could not be validly criticised. The direction,
though not identical with, was in substance quite the same
as. that given in Reg v. Simcoxz. (The Times, February 24,
1964). and approved by this Court. The Court went on to
quote the observations of Lord Parker, C. J. given in the
case of Simcox, as follows:----

"All four experts were of the opinion that this
appellant suffered from an abnormality of mind, and

that abnormality of mind arose from inherent causes, _

the name given to the abnormality being paranoid
personality.

Not one of them however, would go to the length
of saying that as a result of that abnormality the
appellant's mental responsibility was substantially
impaired. They used words to the effect that the im-
pairment was moderate, that it was harder for him to
cpntrol his actions, that the degree of paranoid per-
sonality was, as one doctor said, persistent and strong.

1 R. v. Lloyd, (1966) 2 \X7.L.R. 13 (C.C.A.).
2 Reg. v. Simcox, "The Times", February 24, I964 (C.C.A.).



283

Those and other expressions were used, but not one of
the mental experts felt that he could say that the im-
pairment was substantial. In those circumstances the
jury, after what this court considers to be a most ad-
mirable and fair summing-up, refused to return a ver-
dict of manslaughter, but returned a verdict of capi-
tal murder".

918. The Court of Criminal Appeal further quoted the
direction of the trial Judge Finnemore J. in the case of
Simco.r. about which the Court of Criminal Appeal had
stated in the previous case that it could not be validly
criticised. The direction was as follows:--

'Members of the jury, the real thing you may
think here is this word "substantially", and we will
come to it in a moment. Neither doctor called for the
defence obviously liked the word, and it may be so,
but that is the word in the Act of Parliament, that is
the word you have got to use, and I expect you will
not have as much diﬂiculty as some people might
have. There is no scientiﬁc precise test. That can-
not be and never can in human conduct. otherwise we
should not need juries or anybody. and if you will
allow me to say so, I think you should look at it in a
broad commonsense way and ask yourselves, having
heard what the doctors have said_ having made up
your minds about it, knowing what this man did,
knowing the whole story, do we think, looking at it
broadly as common-sense people, there was a subs-
tantial impairment of his mental responsibility in
what he did? If the answer to that is "yes", then you
ﬁnd him not guilty of murder, but guilty of man-
slaughter. If the answer to that is "no" there may be
some impairment, but we do not think it was subs-
tantial, we do not think it was something which really
made any great difference, although it may have made
it harder to control himself, to refrain from crime,
then you would ﬁnd him guilty as he is charged in the
only charge to this indictment.'.

After approving the direction to the jury given by
Ashworth J. in the assize Court, the Court of Criminal Ap-
peal dismissed the appeal.

'919. It would appear, that the defence of diminished
responsibility is recognised in the laws of some of the
Commonwealth countries also'. Recently, it has been in-
corporated in Queensland2--3--".

I For the position in 1953, see R.C. Report, pages 413 and 416.
2 Section 304A, Criminal Code of Queensland.

3 See (x962)36 Australian Law Journz 171.

4 Colin Howard Austra Crimin Law (1965 pages 83-84.



284

920. The necessity of using care while employing the
phrase "borderline insanity" in connection with diminish-
ed responsibility was emphasised by the Privy Council in
a case' which arose under the Homicide (Special Defence)
Act, 1959 of the Bahama Islands, an Act which is similar
to the Homicide Act, 1957. The Privy Council pointed out
that the distinction between legal insanity and mental
irresponsibility may be one of kind and not of degree, for a
man may clearly recognise that he is doing wrong, but
nevertheless be unable to resist the temptation to act ow-
ing to abnormality of mind.

9221. Opinion is not unanimous as to whether the provi-
sion on the subject in the English Act has worked well.
Though it has not been an unqualiﬁed success, it would
appear to have served some useful purpose. The provision,
while not abolishing the M'Naghten rules, supplements
them by providing for cases where there cannot be said to be
complete irresponsibility, but there is substantial impair-
ment? Perhaps in countries where the sentence of death
is mandatory and the application of the M'Naghten rules
is felt to cause hardship, the provision would come in
handy as saving the Judge from having to pass a formal
sentence of death in a case of insanity outside those rules,
where the sentence would not, in any case. be carried out,
and also to give a measure of recognition to mental abnor-
malities short of insanity'.

922. The defence of diminished responsibility may how-
ever be abused. Sometimes persons, sentenced to a lesser
imprisonment under this provision, may come out of prison
and commit the same killing again". Again, a person, who
is really insane, may, instead of taking the defence of in-
sanity, put forth the defence of diminished responsibility,
in order to obtain a ﬁxed sentence and avoid detention in
the prison meant for lunatics. He may thus escape the
treatment which would have been given to him in such

a prison?

923. However. the defence seems to have served some
useful purpose in many cases, for example, cases of infan-
ticide outside the Infanticide Act". One suggestion has

i Rose v. The Queen, (1961) AC. 496, (1961) 2 W.L.R. 506 (RC).

2 See note on Homicide Act in (1957) 20 Modern Law Review. 38
by ].E. Hall Willianis.

3 Glanville Williams, Criminal Law--the General Part (1961). paragraph
x73.
4 See the case of Banner, discussed in Glanville Williams, Criminal Law
(1961), page 552. paragraph 177.

5 See the view of Dr. Patrick McGrath, (1958) I British Medical Journal
64,1, cited in Glanville Williaxns, Criminal La\\'--thc General Part, (1961)
page 55.1,, paragraph 177.

6 See the cases of Budden and Rowley, cited by Ghnville Williams, Cri-
minal Law the General Part (1961), page 557, paragraph 177.



285

been to delete the requirement of "mental abnormality",
so as to leave to the jury discretion to reduce the convic-
tion to manslaughter in all cases where the culpability is
substantially diminished'.

924. Since, in India, the question of sentence is entirely
in the discretion of the Court, and the sentence of death
is not mandatory, such a provision does not appear to be
necessary. Courts may, while considering the question of
sentence, be expected to take into account the mental state
-of the accused, even if it falls short of legal insanity'-'5'.

A change in the law is not, therefore, suggested.

TOPIC NUMBER 49
Other exemptions considered

925. We have already discussed' the categories of per- O(hCI' _
sons to be exempted on the ground of age, sex, mental ¢-"'3'"P""'j"3
state, or pregnancy. Certain other circumstances have mggaste '
been put forth as justifying such exemption. But we do
not think that an exemption from death sentence should
be granted in respect thereof. Elements of necessity, dur-
ess and mistake, or excellent earlier record of the offender
and other personal circumstances, can be taken into ac-

:/count by the court. It would not be desirable to lay down

a general rule that in every such case, only the lesser sen-

ztence must be imposed.

CHAPTER XIII
SOME PROCEDURAL QUESTIONS
TOPIC NUMBER 50(a)
Replies to question 10.

926. Question 10 in our Questionnaire, after referring Question_ 10
'to article 134 of the Constitution and section 411A, Crimi- t";'edre't:P1'°S
rnal Procedure Code, solicited views on this point--- '

"Are you in favour of enlarging the powers of the
Supreme Court so that an appeal shall lie to the
Supreme Court as a matter of right in all cases in
which a sentence of death has been passed or confirm-
ed or upheld by the High Court?".

Conflicting views have been expressed on this point.

'While many replies oppose the enlargement of the powers

of the Supreme Court as suggested in the question. many

other replies favcur such enlargement.

I See Glanville \'('illiams, Criminal La\v--the General Part (1961), page

-5514, paragraph 1 77.

2 Sec Analysis of C:lSC-lJ.\\.'. Cisc Nos. 26, 36, 57, 62. 92.
3 See also In re Sankappa Shetly, A.I.R. 1941 Madras 326.
.4 See paragraphs 874 -924.



286

927. Amongst those who favour the enlargement of the
appellate jurisdiction are a few High Court Judges", two
State Governments", inany Bar Associations and similar
bodies".

Some Bar Council have favoured it". Enlargement is
favoured by several members of the Bar", several Men'.-
bers of Parliament and State Legislatures", and certain
oiﬁcers". The Law Minister of a State is in favour of en-
largernent". A distinguished Member of the Rajya Sa';)'n':=.
is in favour of enlargement".

A former Member of the Lok Sabha, who is an Advo-
cate, is in favour".

The Principal Judge of a City Civil Court in a Presi-
dency Town" is in favour of enlargement

Some Ci1y Civil Court Judges are in iavour".

928. The majority of Presidency Magistrates in a Presi-
dency Town' are in favour of enlargement, on the grotmf
that no person should lose his life unless the highest Court
has considered his case.

An Inspector--General of Prisons is in c favour of er.-
larg'ement"'.
1 Chfefjustice ofa High Court and a Judge ofihe High Court, S.No. I33.
2 S. Noz. 97, 307, 316.
3 S. No. I30 and S. No. 580 (State Governments).

4 Bar Association of India ; Supreme Court Bar Association g
:\ District BarAssociation; The Indian Federation of\'('omen Lawyers, S.I\'r~.
183,110. 125 and 12:. .

5 A Bar Council. S. No. 132.

6 .--\n eminent member of the Bar, through the Bar Council of Imiia.
S. No. 161 ,' Two Members of the Madras Bar Council, S. No. 104 ; A
.-\c1\'ocatc_ Bangalore, S. No. 126 ; A Barrister, S. No. 150.

7A. Deputy Minister of the Union, S. No. 210; A Member, Raiyu
\':i'nha.S.No.2o6(suggcsts right of appeal in every case of lif imprison-
ment) 5.-\ Member, Raiyasabha, S. No. 209. '

8 Revenue Minister ofa State, S. No. 216; An M.L.."\., Mad ya Pr':-
dcsh, S. No. 213.

9 Law Secretary to a State Government. S. No. 162 ; Pin Inspector
General oi Prisons, S. No. 166 ; An Inspector General of 'Police,
An Inspector General of Police, S. No. 143.

to S. No. 253.
11 S. No. 245. '
12 S. No. 305.

13 S.1\Io.352. als.) 434a x.

14 S. Nos. 376,377» 373, 379,380 and 381.

15 S. No. 549.

16 S. No. 264.



287

929. The Judicial Section of the Indian Officers Associa---
tion in a State has stated that an appeal s'no=.i1£. he as a.

matter of right in all cases where the sentence of death has
been confirmed, passed or upheld by the High Court. Fur-
ther. it has suggested that appeals against acquittal on
charges of murder should also be permissible up to the
Supreme Court. "While the deterrent of death sentence is
necessary in the interest of society, no consideration of the
time or labour involved in scrutiny with the utmost care of
all the evidence available should be spared even up to the
highest tribunals of land. It is a miscarriage of justice whe-
ther it is a conviction or an acquittal, when it is not iusti--
ﬁed_ No eﬁort is too small to render impossible the mis-
carriage of justice even in a single instance". Many Dis-
trict and Sessions Judges are in favour of enlargement-'.

930. One District and Sessions Judge" who favours en-
largement has stated that though such a right would
amount to a second appeal in some cases, yet it would be

justified in the case of a death sentence, and the accused"

must have right to get his case decided by the highest tri-
bunal in the country.

931. Another District and Sessions Judge' has supported

enlargement on the ground that a person condemned should

have a right of second appeal to the highest Tribunal.

.032. An Assistant Judge5 has favoured the enlargement

of the appellate jurisdiction, on the ground that it would'

give a guarantee that the punishment has been rightly
given. He adds----

"In some of the cases the Supreme Court has re-
viewed even a finding of facts because it granted a

leave to appeal. In some cases a certiﬁcate has been'

given by the High Court that the case is a ﬁt one to
appeal. There cannot be a sound basis for discrimina-

tion of these cases from the cases where no leave was"

given by the High Court or by the Supreme Court".

Some Bar Associations are in fax/our of enlargement".

933. It is suggested by a District Bar Association7 in
Madhya Pradesh that life is precious to every human being
and every human being does his utmost for survival. The

I S. No. 562.

550,2;-7.NS06-ti 3a2n5d- 353:/1%-.335' 339. 3-17-~ 349. 521, 534« 525- 533 545» SS': 554*
3 S No. 354.
4 S No. 358.
5 S. No. 340.
6 S. No. 345.
7 S. No. 426.



Limited
enlargement.

288

Supreme Court being the highest and ﬁnal judicial author-
ity for pronouncing judgment on important matters per-
taining to life and property and other matters of public
interest, a man condemned must also have an opportunity
as of right of putting his case before the highest judicial
tribunal of the land by way of appeal.

934. There are some views favouring a limited enlarge-
ment. Thus the suggestion of a High Court Judge' is that
the Supreme Court should have only a limited jurisdiction,
namely, where questions of law are involved.

935. The suggestion of a District and Sessions Judge' in
Maharashtra is that an appeal to the Supreme Court be
provided but only to the extent of the propriety of the
death sentence, where the sentence passed by the Court of
Session is life imprisonment and is enhanced to death by
the High Court.

936. A District and Sessions Judge" is in favour of a
limited right of appeal, where the High Court imposes the
death sentence for the ﬁrst time. the principle being that
this would eliminate (from the ﬁeld of appeal as of right
to the Supreme Court) all death sentence cases in which
the Trial Court and the High Court have concurred in the
matter of awarding the death sentence.

937. Some replies expressed no views on the question".

938. Those who favour enlargement have advanced a
number of arguments in support of their suggestion. One
argument is that a further chance to the accused to agitate
the question of sentence should be given in all cases of
death sentence, including confirmation. The Supreme Court,
it is stated. has found in a few cases, that while the ﬁnding
of the High Court indicated that a particular type of culpa-
ble homicide was committed, the sentence happened to be
awarded on a different type". A few decisions" have also
been referred to in this context.

939. The point has also been made in one reply7, that
considering the impossibility of rectification of mistake, a
further process of scrutiny by a superior and more experi-
enced judicial authority is always desirable. (In fact, the

I S. No. 262.
2 S. No. 420.
3 S. No. 334.
4 A. High Court. S. No. 140.
5 Chief Justice of a High Court and judge of that High Court
S. No. 130.

6 Pandu Rang \'. State of Hyderabad. (1955) I S.C.R. 1093;
I955 S.C. 216 ; ll'/'ill2'am Slaney v. State of Madhya Pradeflz, A.I.R. 1956
S.C. 116 ; also Inder Singh v. Crown (1928), I.L.R. 10 Lab. 477.

7Rcply of an Inspector-General of Police, S. No._ 131.



289

reply suggests that every sentence of death should be sub-
ject to conﬁrmation by a Division Bench of the Supreme
Court). It is stated'. that as death is the highest sentence,
an opportunity of appeal should be given.

940. Amongst those who have opposed the proposed
enlargement of jurisdiction are some High Courts". and
certain High Court Judges"--'.

941. A State Law Commission5. many State G_overn-
mt-nts"_. and Administrations of Union Territories'. and
many others are opposed to enlargement.

942. A High Court Judge3 is opposed to enlargement
because---

(a) it willomean permitting a second appeal in
C38') of concurrent decisions of two Courts awarding
a death sentence, which is not ordinarily contemplated
in the criminal law;

(b) in other countries there is no such power;

(C) in appropriate Cases article~; 134 and 136 are
sufficient.

943. Several High Court Judges are opposed to enlarge-
merit".

044. Another High Court Judge" is opposed to enlarge-
ment on the ground that it would shift on the Supreme

Court a burden which should appropriately lie in the High
Court.

9-15. The Home Minister of a State" is opposed to
enlargement.

946. The Law Minister of a State"-', who is opposed to
enlargement. has expressed the view that the provisions
relating to mercy are enough.

I A State Government. S. No. 143.

2 Two High Courts. S. Nos. 167 and 187.

3 Chief Justice of a High Court, S. No. 316.

4 Several High Court Judges. S. Nos. 105, 147 and 97.

5 A State Law Commission, 5. No. 133.

6 S. Nos. 129, 154. 182, 242.. 261. 311 and 574.

7 S. Nm. 164 and 303.

8 S. No. 230.

9 S. Nos. 262. 393. 394. 3951 and 396.

10 S. No. 251.

11 S. No. 258.

12 S. No. 313.



290

947. A Minister' in a State Government is opposed to
enlargement, on the ground that the procedure will become
very lengthy and expensive.

9-18. Some members of Parliament are opposed to en-
iar gement'. So are some members oi' the State Legislature;
opposed t.o enlargement".

9459. An Inspoctor--General of Police' has stated that
enlargement would lead to delay.

950. A very Senior Advocate of the Bombay High
Court5 has, while opposing enlargement, stated that gene-
rally speaking the right of appeal to superior court should
not be extended and that it encourages litigation, protracted
proceedings and inordinate delays, and keeps the condemn~
ed criminals in a state of suspense for an indeﬁnite period.
In his view, the right of multiple appeals in America has
led to tortuous and protracted proceedings. He has observ-
ed that in America, the unfortunate appellant is not only
kept in a state of agonising suspense for years. but, in some
cases (the case of Sacco and Vanzetti for instance), it ends
in the inhuman spectacle of the man being executed after
years of suspense and expectation.

951. Certain District and Sessions Judges are opposed
to enlargement").

.952. A District and Sessions Judge7 has opposed enlarge-
ment on the ground that theoretically there can be no
end to the successive appeals which We can provide. He
has pointed out that both the Sessions Judge and the High
Court are very careful in convicting the accused and in
imposing the death sentence, and enlargement would in-
crease the work in the Supreme Court with no corres-
ponding beneﬁt.

953. Several District and Sessions Judges are also
opposed to enlargementa.

954. A small number of the members of the Bar are
against it''.

I S. No. 221.

2 S. No. 2o7.

3 S. Nos. 102, 248 and 249.

4 S. No. 264.

5 S. No. 318.

o' S. Nos. 416. 418. 553 and 560.

7 S. No. 336.

8 S.Nos.35I,353 ;359- 364, 366, 380,384. 385 and 39!.
9 A Pleadcr, Calcutta, S. No. 128.



291

955. Some others are also opposed to itl.

956. The opposition to enlargement is based on several
points. The ﬁrst is that the Supreme Court has ample
powers to rectify miscarriage of justice; secondly, that the
Supreme Court is not a court of criminal appeal in the
ordinary sense, and an unconditional right of {appeal would
not be justified; thirdly, that a departure from the exist-
jiig system is not necessary because justice is not hamper-
ed under the present system; fourthly, it would mean
delaying justice and increasing the cost of litigation, would
make the High Courts lose their prestige and would
Weaken the deterrent effect of the. death penalty; and
:i:'*hl_';, that it would unnecessarily increase the workin
1312 Supreme Court.

TOPIC NUMBER 50(b)

Scope of appeal in criminal cases where a sentence of death
is in issue.

957. We propose to consider in detail the present law
as to appeals in cases where the sentence of death is in
issue. The Courts, which can pass a sentence of death, are
either the High Courts in the exercise of their original
criminal jurisdiction, or the Courts of Session. The only
High Court, which now exercises such criminal jurisdiction
on the ordinary original side, is the Calcutta High Court;
lut every High Court has, what can be described as,
"extraordinary original criminal jurisdiction" which may
arise either by reason of withdrawal of a case from a sub-
ri-rdinate court to the High Court under article 228 of the
Constitution, or by transfer of a case from a subordinate
court to the High Court under section 526(1) (iii) of the
Code of Criminal Procedure, 1898, or by an order passed
1:}: the High Court, directing that an accused person be
committed for trial to itself under section 526(1) (iv) of
the same Code, or by transfer of a case from a subordinate
c::iu1't to the High Court under the Letters Patent'--''. 01' by
c-:»;ercisc of the High Court's extraordinary criminal juris-
_ion. under the Letters Patent''. or an order under sec-
'don 197 of the Code of Criminal Procedure, whereby the
trial is directed to be held by the High Court, or transfer
or committal of a case to the High Court under section 526A
and section 527 of that Code.

958. So far as cases tried on the original side by the
High Court are concerned, two provisions relevant to
-_--":_'npealS may be noted. The first is section 411A of the

   

I A retired ILidge.HighC'i~irVt of
an.) Sessions Judge, Nagpur.
judge (Gujarat), S. No. 212.

2 For raxacnole. clause 24 of the Letters Patent of the High Courts of
Bombay, ltladras and Calcutta.

3 See Sacihazr V. Charles Tazgarr, A.I.R. I932 Cal. 123.

4 For examole, clause 24 of the Letters Patent of the High Court of
Bombay, Madras and Calcutta.

Bombay. S. No. 95 ;A retired District
S. No. 139; A District and Sessions

Scope of
appealin
criminal
cases where
a 'sentence
oi death is
in issue.

S cntcnct: of
death by
High Court.

Appeal from
sentence of
High Court.



292

Code of Criminal Procedure, 1898, which is quoted below?»-T

"411A. {1} Any person convicted on a trial heid by a
High Court in the exercise of its original criminal
jurisdiction may, notwithstanding anything contained
in section 418 or section 423, sub~section (2), or in the
Letters Patent or law by which the High Court is con--
stituicd or continued, appeal to the High Court-«

(22) against the conviction on any ground of
appeal which involves a matter of law only;

(13) with the leave of the Appellate Court, or
upon the certiﬁcate of the Judge who tried the
case that it is a fit case for appeal, against the
conviction on any ground of appeal which involves
a matter of fact only, or a matter of mixed law
and fact, or any other ground which appears to the
Appellate Court to be a sufﬁcient ground of appeal;
and V

(C) with the leave of the Appellate Court.
against the sentence pessed unless the sentence is
one fixed by iaw.

(2) Notwithstanding anything contained in sec-
tion 417, the State Government may direct the Public
Prosecutor to present an appeal to the High Court
from any order of acquittal passed by the High Court
in the exercise of its originai criminal jurisdiction, and
such appeal may, noiwithstanding anything contained'
in section 418. or section 423, sub-section (2), or in the
Letters Patent or law by which the High Court is
constituted or continued, but subject to the restriciions
imposed by clause (b) and clause (c) of subsection
(1) of this section on an appeal against a conviction.
he on a matter of fact as well as a matter of law.

(3) Noiwithstamiing anything elsewhere contain»
ed in any Act or Regulation, an appeal under this sec-
tion shali be heard by a Division Court of the High
Court composed of not less than two Judges, being
Judges other than the Judge or Judges by whom the
original trial was held; anti if the constitution of such
a Division Court is impracticable, the High Court shaii'
report the circumstances to the State Government
which shall take action with a View to the transfer of
the appeal under section 527 to another High Court.

(4) Subject to such rules as may from time to
time be made by the Supreme Court in this behalf and
to such conditions as the High Court may establish or
require. an appeal shall lie to the Supreme Court from
any order made on appeal under sub-section ( 1) by a
Division Court of the High Court in respect of which
order the High Court certifies that the case is a ﬁt one
for such appeal".



293

959. It may be added, that section 411A applies to
extraordinary criminal jurisdiction also'.

Sub-section (4) of section 411A of the Code of Criminal
Procedure, it would have been noted, deals with appeals
t.o the Supreme Court.

960. The second is the group of provisions contained {\p_pe1lat_e
in articles 134 and 136 of the Constitution, which are JU"Sd1C'l°"

W of Suprem
quoted belox .-- Court in C

"I34. (1) An appeal shall lie to the Supreme Court 383*'? T}?
from any judgment, ﬁnal order or sentence in a crimi-- m;'n";'r':f'
nal proceeding of a High Court in the territory of India

if the High Court-

(a) has on appeal reversed an order of acquit--
tal of an accused person and sentenced him to death;
or

(b) has withdrawn for trial before itself any
case from any court subordinate to its authority
and has in such trial convicted the accused person
and sentenced him to death; or

(c) certiﬁes that the case is a fit one for appeal
to the Supreme Court.

Provided that an appeal under sub-clause (c) shall
lie subject to such provisions as may be made in that
behalf under clause (1) of article 145 and to such condi-
ticns as the High Court may establish or require.

(2) Parliament may by law confer on the Supreme
Court any further powers to entertain and hear appeals'
from any judgment, ﬁnal order or sentence in a crimi-
nal proceeding of a High Court in the territory of India
subject to such conditions and limitations as may be-
specified in such law.".

136. (1) Notwithstanding anything in this Chapter,
the Supreme Court may. in its discretion, grant special
leave to appeal from any judgment, decree, determina-
tion, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of
India".

961. So far as Courts of Session are concerned, the Arrealfrnm
present position is this. Any person convicted at a trial Cf"f." °f
held by the Sessions Judge or by the Additional Sessions S"S"°n'
Judge may appeal to the High Court". When the sentence
passed by the Court of Session is one of death. the proceed-
ings have to be submitted to the High Court for conﬁrma-
tion of the sentence, and the sentence cannot be executed
unless t is confirmed by the High Court".

717 -;lI:'I'l\(7//Iizizhlru  Szt:'c.'> .--\.I.R. 1954 Cal. 305, 313 (D.B.).
2 Section 410. the Code of Criminal Procedure, 1898.
3 Section 374, the Code of Criminal Procedure, 1898.



Qonﬁmia-
' non.

Revision.

Appeals {rein
. acquittal.

294
962. The powers of the High Court on such reference

are very wide, both in respect of procedure and
in respect of the substantive order to be passed.
The High Court can make or cause to be made

a further enquiry into, or take or cause to be taken addi-
tional evidence upon, any point bearing upon the guilt or
innocence of the convicted personl. It may conﬁrm the
sentence, or pass any other sentence warranted by law, or
annul the conviction and convict the accused of any
offence of which the Sessions Court might have convicted
him, or order a new trial on the same or an amended
charge, or acquit the accused person. The order of conﬁrma-
tion is not to be made until the period allowed for preferr-
ing an appeal has expired, or, if an appeal is presented with-
in such period, until such appeal is disposed of". In fact, the
conﬁrmation proceeding and the appeal, if any, are heard
together.

963. Where the Court of Session, while convicting the
accused of a capital offence, has imposed the lesser sent--
ence, the High Court may, in exercise of its powers of revi-
sion, enhance the sentence", after giving the accused an
opportunity of being heard?

A revision cannot,eof course, result in alteration of an
acquittal into conviction". Where the High Court conﬁrms
the sentence of death in conﬁrmation proceedings, and
maintains it in the appeal (if any), or enhances the lesser
sentence to a sentence of death, further appeal to the
Supreme Court is governed by articles 134 and 136 of the
Constitution7.

964. Where the Court of Session has acquitted the
accused, the State can appeal to the High Court", and, in
certain cases. a private party may also be allowed to
appeal". In such appeals, the High Court can reverse the
order of acquittal and direct that further inquiry be made,
or that the accused be re-tried, or committed for, trial. or
ﬁncl him guilty and pass sentence on him according to
l:m7"'.

I Section 375 (1), Code of Criminal Procedure, 1898.

2 Section 376, Code of Criminal Procedure, 1898.

~ 3 Section 376, Proviso, Code of Criminal Procedure, 1898.
4 Section 439 (1), Code of Criminal Procedure, 1898. As to appeal. see

section 423(1A) of the Code.

5 Section 439 (2) and
tlure 1898.

section 439 (6) Code of Criminal Proce-

6 Section _1,39(4fr. Code of Criminal Procedure, 1898.

7 We need not discuss here article 132 of the Constitution.

8 Section 417 of the Code of Criminal Procedure, 1898.

9 Section 4:7 (3) of the Code of Criminal Procedure, 1898.
.10 Section 423 (I)(a) of the Code of Criminal Procedure, 1898.



295

965. In an appeal from conviction, the High Court may Appeal from
enhance the sentence after the accused has had an oppor- ¢°"Vi°"°"-*-
tunity of showing cause against the proposed enhance-
mentl-2. '

966. Thus, whatever be the venue of the trial, every
case of a capital offence, where the sentence of death is in
issue, must ultimately Come up before the High Court.

967. Article 134(1) of the Constitution sets out the
extent of jurisdiction of the Supreme Court in criminal
matters. The appeal lies in three cases----

(a) where the High Court, on appeal, reverses the
order of acquittal by a Court of Session and sentences
the accused to death;

(b) where the High Court withdraws a case from
the Sessions Court and, on conviction, sentences an
accused person to death;

(c) where the High Court certiﬁes that a case is
fit one for appeal to the Supreme Court.

This right of appeal under (c) above is not restricted
to cases involving sentence of death, but extends to all
criminal cases; it is however subject to rules made by the
Siipreme Court under article 145 of the Constitution.

Parliament has the power to confer on the Supreme
Court any further powers to entertain and hear appeals
from judgments, ﬁnal orders or sentences in a criminal
proceeding of a High Court under article 134(2).

968. The appeal, therefore, lies as a matter of right
where the High Court, for the ﬁrst time imposes a sentence
of death, either when the matter comes up in an appeal
to the Court or when it tries a matter itself; but it does not
lie as a matter of right in cases where the sentence is en-
hanced under section 439 of the Criminal Procedure Code.

As to when the appeal lies under clause (c) of article
134(1), the principles have been laid down by the Supreme
Court in some of its judgments. which we shall brieﬂy
discuss.

There is still another provision in the Constitution which
confers jurisdiction on the Supreme Court to entertain
appeals and that is article 136. which also we shall discuss.

. 1. Section 423 (IA) of'C~'v.'.c ofthc Criminal Procedure, x898, as amended
i_n_1955. . . ,

2. Figures relating to appeals to High Courts in capital cases are given
,eparatcl_v._ - ~ ' .

21-122 M of Law



296

969. Under clause (c) of article 134(1) of the Consti-
tution, an appeal lies to the Supreme Court in all criminal
matters where a certiﬁcate has been granted by the High
Court of its being a ﬁt case for appeal to the Supreme
Court.

970. As to when a certiﬁcate can be granted under
article 134, the Supreme Court has laid down certain
criteria for the exercise of discretion'. In Hartipada Dey
v. the State of West Bengal", where a certiﬁcate had been
granted in spite of the fact that the question involved was
one of fact, the Supreme Court held that the grant of certi-
ﬁcate was improper, and that the High Court had no juris-
diction to grant the certiﬁcate in these circumstances. The
mere fact that the High Court was unable to remedy any
defect on a question of fact was held not to be a ground
on which a certiﬁcate could be granted. In a later case3,
where an appeal was dismissed by the High Court summa-
rily and another Bench of the High Court had granted a
certiﬁcate on the ground that on account of summary dis-
missal of the appeal, the appellant did not have the satis-
faction of having fully heard, the Supreme Court held the
certiﬁcate to be illegal, and observed--"Certifying" is a
strong word and, therefore, it has been repeatedly pointed
out that a High Court is in error in granting a certiﬁcate
on a mere question of fact, and that the High Court is not
justiﬁed in passing on an appeal for determination by this
Court when there are no complexities of law involved in
the case, requiring an authoritative interpretation by this
Court. On the face of the judgment of the learned Chief
Justice, the leave granted cannot be sustained".

971. In Khushal Rao v. State of Bombay5, where a cer-
tiﬁcate was granted not on a diiﬁcult question of law and
procedure which required to be settled by the Supreme
Court, but on a question which was essentially one of fact,
namely, whether there was sufficient evidence of the guilt
of the accused, the Supreme Court, following its previous:
jtudgment in Haripada Dey's case, made these observa-

1ons:--

"In other words, this Court does not function, ordi-
narily, as a Court of Criminal Appeal. Under the
Constitution, it has the power, and it is its duty, to

V hear appeals, as a regular Court of Appeal, on facts
involved in cases coming up to this Court on a certi-
ﬁcate under article 134(1) (a) or (b). To the same

1 Nar Singh v. State of Uttar Pradesh, (1955) I S.C.R. 238, 241-242.
2 Haripada Dey v. State of West Bengal, (I956) S.C.R. 639.

7 3 Sidheshwar Ganguly v. State of West Bengal, (I958) S.C.R. 749,
S4-

4 Haripada Dey v. State of West Bengal, (I956) S.C.R. 639, and case
referred to therein.

5KhushaI Rao v. State of Bombay, (1958) S.C.R. 552, 559.



29'?

effect are the other decisions of this Court, referred
to in the reported decisions'-2-3.

It is, therefore, incumbent upon the High Courts
to be vigilant in cases coming up before them, by way'
of an application for a certiﬁcate of ﬁtness under
article 134 (1) (c) of the Constitution."

In this case also, the certiﬁcate was held to be illegal.

Therefore, a certiﬁcate under clause (c) of article 134(1)
can be granted only where the question is one of great

importance".

972. There is also another provision in the Constitution
which gives to the Supreme Court the jurisdiction to hear
appeals in criminal matters, and that is article 136 of the
Constitution. Several tests have been laid down as to when
the Supreme Court will entertain an appeal under article
136. As early as 1950, in Pritam Singh v. State', the law
was thus stated. The Supreme Court will not grant special
leave to appeal under article 136(1) of the Constitution un-
less it is shown that exceptional and special
circumstances exist, that substantial and grave injustice
has been done and the case in question brings features of
sufficient gravity to warrant a review of the decision. In
the State of Madras v. A. Vaidyanatha Iye'r7, the Court
held that the Supreme Court will not readily interfere with
the ﬁndings of the fact given by the High Court, but if the
High Court acts perversely or otherwise improperly, inter-
ference will be called for.

The Supreme Court refused to give leave under article
136 in NM Stngh v. State of UP." where the sole question
was the applicability of section 149 of the Indian Penal
Code to a case where the High Court had held that the
condition of ﬁve persons in section 149 had been complied
with, and the only question was which was those of ﬁve
persons and therefore a question of fact.

973. Thus. in our opinion, there is adequate provision in
the Constitution to safeguard the interests of an accused
person to prevent any miscarriage of justice or the imposi-
tion of a capital sentence not called for.

1 Nor Singh v. The State of U. P., (1955) I S.C.R. 238.

2 Baladin V. The State of U. P., A.I.R. I956 S.C. I81.

3 Sunder Singh v. The Srazc nf U. P., A.I.R. 1950 S.C. 411,
4 Banarsi Prasad v.Kasln.'I<'ps'.chan, 28 I.A. II, 13,18 (P.C.).

5SeealoV'thi hP'11:-.K' E , ,. 
Med. 501 ; :4 C1'*7.:L.a]P.mé77 (lP?C.3. mg mpemr 40 IA 193' LR' 36

6 Primm Sing}: v. State, (1950) S.C.R. 453.
7 Sum Of Madras V. A. Vaidjvanatha Iyer, (1957) S.C.R. 581.
8 Na: Sing}: v. The State of U. P., (1955) 1 S.C.R. 238, 242.



Cases not
appealablc
at Present
without
certiﬁcate,
etc.

298

The decisions on the subject of interference by the
Privy Council in Criminal cases were reviewed in Arnold's
casel, where it was pointed out that the Judicial Committee
was not a court of Criminal Appeal. It was also stated
that the practice of the Court of Criminal Appeal in
England would not be necessarily relevant regarding the
procedure of the Privy Council in advising interference".

974. In a recent decision of the Supreme Court". the
scope and ambit of article 136 was considered. After
pointing out that an appeal under article 136 was not as
of right, nor by special certiﬁcate of the High Court, the
Supreme Court made the following observations:--

"Once a decision is given by the High Court, that
is ﬁnal unless an appeal is allowed by special leave
of this Court. No doubt this Court has granted special
leave to the appellants, but the question is one of the
principles which this Court will ordinarily follow in
such an appeal. It has been ruled in many cases
before that this Court will not re-assess the evidence
at large, particularly when it has been concurrently
accepted by the High Court and the court or courts
below. In other words, this Court does not form a
fresh opinion as to the innocence or the guilt of the
accused. It accepts the appraisal of the evidence in
the High Court and the court or courts below. There-
fore, before this Court interferes something more must
be shown, such as, that there has been in the trial a
violation of the principles of natural justice or a
deprivation of the rights of the accused or a misread-
ing of vital evidence or an improper reception of
evidence Which, if discarded or received, would leave
the conviction unsupportable, or that the court or
courts have committed an error of law or of the forms
of legal process or procedure by which justice itself
has failed. We have, in approaching this case, borne
these principles in mind. They are the principles for
the exercise of jurisdiction in criminal cases. which
this Court brings before itself by a grant of special
leave.".

975. This survey of the constitutional and statutory pro-
visions shows, that at present there are certain situations
wherein, ever; if the sentence is one of death, a right of
appeal, without certiﬁcate of High Court or leave of
Supreme Court, to the Supreme Court from the determi-
nation of the High Court, is not available.

1 Channing Ardold v. Emaeror, (I914) 15 Cr. L.J. 3c9, 324, 325 (C. PT

2 As to this point, see also Clifford v. Emperor, 4o I.A. 241 ; 15 Cr. L.J
x44 (P.C.) (A Court of Crim'nalAppeal can go intoquestions of evidence
and questions of procedure on the same footing as an ordinary Court of
Appeal,_but the Privy Council is limited by the principle laid down in
DiIIet's casc.). . V. p . _ _

3 Saravanabhovan v. State of Madras, (1966) I S.C.A. 730, 734

A.I.R. I966 S.C. I276 (majority judgment).



299
These are as follows:---

(i) Where the Court of Session has convicted the
accused of a capital offence and sentenced him to death,
and the sentence is conﬁrmed by the High Court in
proceedings for conﬁrmation;

(ii) where the Court of Session has convicted the
accused of a capital offence and sentenced him to death

and the sentence is upheld in appeal by the High
Court;

(iii) where the Court of Session has convicted the
accused of a capital offence, but sentenced him to the
lesser sentence, and the High Court has enhanced the
sentence to one of death, either in revision or in the
appeal from the conviction ﬁled by the accused under

sections 411 (1A) and 439 (2), Code of Criminal Proce-
dure, 1898;

(iv) where a Judge of the High Court, sitting on
the original side, sentences the accused to death, and
the sentence is maintained by the High Court in an
appeal under section 411A of the Code of Criminal
Procedure, 18981;

(V) where a Judge of the High Court, sitting on
the original side, convicts the accused of a capital
offence, but sentences the accused to the lesser sent-
ence, and the High Court, in an appeal by the accused
against the conviction, enhances the sentence to one
of death. under section 411A read with section 423(1A)
of the Code of Criminal Procedure, 1898.

976. The next question to be considered is whether any
change in the law is required. The necessity for consider-
ing this question arises because of the fact that the move
for abolition of capital punishment has raised questions as
to Whether the existing law ensures that a person sentenc-
ed to death gets adequate justice.

Whether
change rc-
quircd.

977. The Law Commission had occasion to consider this Recommen-
question previously. when examining generally the reform dation in

of judicial administration. Its observations on the subject E°""°°mh
were as follows2:-- °p°"'

"40. We have not before us any substantial body
of opinion calling for the enlargement of the jurisdic- Crmﬂnal
tion of the Supreme Court under article 134. A view 1;',fr'-ﬁliziieon
has, however, been expressed by the Government of '

I The right under section 411A (4), Criminal Procedure Code, is not an
unqualiﬁed one.

.2 Fourteenth Report of the Law Commission (Reform of Judicial Ad'
ministration), Vol. 1, pages 51 and 52, paragraphs 4o-41.



Develop-

' ments dur-

ing last 10
years.

300

Madras that the limited right of appeal now conferred
in cases of persons sentenced to death by clauses (a)
and (b) of article 134(1) should be enlarged and that
in all cases in which the accused persons are sentenced
to death, there should be a right of appeal to the
Supreme Court, without the need of a certiﬁcate from
the. High Court. It was suggested that Parliamentary
legislation to this effect under article 134(2) should

be undertaken.

41. In our View adequate grounds have not been
made out for the proposed -enlargement of the right
of appeal. Even in cases not covered by clauses (a) and
(b) of article 134(1), the High Court has the power
to certify a case as ﬁt for appeal to the Supreme Court
under clause (c). There is no reason to suppose that
cases in which accused persons are sentenced to death
other than those falling under clauses (a) and (b) of
article 134, if they are ﬁt ones for appeal, are not being
certiﬁed as ﬁt cases under clause (c) of article 134(1).
There is also the safeguard provided by the wide
powers of the Supreme Court under article 136 which
will not fail to be exercised in cases of death sentences
where a miscarriage of justice has occurred. The pro-
posal of the Madras Government is based on the view
that all cases, where the extreme penalty of the law
has been awarded, should be examined by the Supreme
Court. We are not inclined to accept this view. For
over a century such cases have been dealt with by the
High Courts subject to the superintendence of the
Privy Council under its special leave jurisdiction and
there is no reason why the High Courts should not
continue to deal with such cases in the same manner".

Thus, enlargement of the jurisdiction, so as to allow
an appeal in all cases wherein persons are sentenced to
death, was not favoured, for several reasons; ﬁrst, because
of the Commission had not a substantial body of opinion
calling for enlargement of jurisdiction; secondly, because
the Commission thought that there was no reason to sup-
pose that cases which were ﬁt for appeal were not being
certiﬁed under article 134(1) (c); and thirdly, because the
Commission felt that the safeguard under article 136 would
not fall to be exercised to rectify a miscarriage of justice.

978. It has, no doubt, to be noted, that since this Report
was submitted, there has been a lot of thinking generally
on the subject of capital punishment and particularly on
the question of appeals in capital cases. During the last
10 years or so, the question of abolition has been debated
again and again in many countries as well as in India, and
one of the arguments against the retention of capital
punishment is the possibility of erroneous conviction.
That consideration, which no doubt must have been pre-



301

sent to the minds of the framers of the Constitution', has
now come to the forefront, and it would not be improper
if the question of right of appeal is re-examined in this
ﬁght

979. We may, in this connection, refer to the views of
the Canadian Committee. That Committee noted" that
under the law in force then, a person whose conviction was
upheld by a Provincial Court of Appeal, might appeal as of
right to the Supreme Court of Canada, where t ere was a
dissent on a question of law in the lower Court, and that,
otherwise he could appeal to a single Judge of the Supreme
Court after obtaining leave of appeal on a question of law.
After noticing that, under the law in force then, Courts
could not grant an extension of time for leave to appeal in
certain cases, and stating that this might cause injustice
and embrassment and the accused may be deprived of his
right to appeal on a technical slip, the Committee recom-
mended, ﬁrst, an "automatic appeal" to a Provincial Appel-
late Court after every capital convi-ction, (so that the record
would be transmitted to the Appellate Court automatical-
ly); secondly, that competent counsel should be provid-
ed to the appellant in such cases; and thirdly, that an
appeal should be allowed from the Provincial Court of
Appeal to the Supreme Court of Canada as of right to
every person subject to a capital sentence". It is the last
recommendaion that is of interest to us. The Committee
made this recommendation "because of the gravity of the
crime and sentence". We quote below the relevant para-
graph>-- '

"84. At present, appeals to the Supreme Court of
Canada are limited to appeals as of right where there
is a dissent on a question of law in the Provincial
Court of Appeal. Otherwise an appeal may be taken
only on a question of law if leave is obtained from one
judge of the Supreme Court of Canada. Because of
the gravity of the crime and sentence, the Committee
considered it proper that an opportunity to be heard
by the court of last resort should be open to every
person subject to a capital sentence and recommends
that the law be amended to provide for an appeal as

of right in such event to the Supreme Court of
Canada.".

980. Accordingly, the law has now been

Views .01
Canadian
Committee.

altered in canadim

Canada by the amendment made in 1961 to the Criminal provision

Code. Sections 583A and 597A, of that Code (inserted in

I See article 134 (I)(a) and (I2) of the Constitution.

2 Canadian Report, page 4, para 9.

3 Canadian Report, page 2:, paragraphs 83 and 84.



Right of
appeal of
person

sentenced
to death.

Notice
deemed to
have been
given.

Court of
appeal may
consider.

Appeal on
law or fact
or mixed
law and
fact.

Position in
other coun-
tries.

Question of
enlargement

302

1961) (dealing respectively with first and second. appeals)
are quoted below1:--

"583A. (1) Notwithstanding any other provisions
of this Act, a person who has been sentenced to death
may appeal to the court of appeal-----

(a) against his conviction on any ground of
appeal that involves a question of law or fact or
mixed law and fact; and

(c) against his sentence unless that sentence
is one ﬁxed by law.

(2) A person sentenced to death shall, notwith-
standing he has not given notice pursuant to section
586, be deemed to have given such notice and to have
appealed against his convictionand against his sent-
ence unless that sentence is one ﬁxed by law.

(3) The court of appeal, on an appeal pursuant to
this section, shall-

(a) consider any ground of appeal alleged in
the notice of appeal, if any notice has been given;
and

(b) consider the record to ascertain whether
there are present any other grounds upon which
the conviction ought to be set aside or the sentence
varied as the case may be.

"597A. Notwithstanding any other provision of this
Act, a person--

(a) who has been sentenced to death and
whose conviction is affirmed by the court of appeal,
or

(b) who is acquitted of an offence punishable
by death and whose acquittal is set aside by the
court of appeal;

may appeal to the Supreme Court of Canada on any
ground of law or fact or mixed law and fact.".

981. It must, however, be noted that in other countries
of the Commonwealthg, excepting Canada, the right of
appeal has not been widened, and broadly speaking, it is
limited to questions of law except with the leave of the
appellate Court. There is no absolute right of second
appeal in a criminal case, on a question of fact, even where
a sentence of death is passed.

982. The question now is whether any change in the

congjde;ed_ law is required. This question has so many aspects, and

I Sections 583A and 597A, Criminal Code (Canada).
2 Comparative material is given separately.



303

much can be said on either side. On the one hand, the
widening of the jurisdiction of the Supreme Court is, no
doubt, bound to increase its work.

983. On the other hand, there are certain points, stated
below, which require to be considered.

984. First, the replies1 which we have received to our
Questionnaire show that there is a considerable body of
opinion in favour of proposed enlargement of the jurisdic-
tion of the Supreme Court.

Secondly, the risk of an erroneous conviction is a fact
which has to be considered. The law should make the
utmost efforts to see that all safeguards that are reasonably
practicable are made available for avoiding an erroneous

conviction, in a case where the sentence of death has been.
awarded.

985. We have to consider this question not from any'
abstract theoretical point of view, but from the practical
point of view. The jurisdiction of the Supreme Court to
intervene where there is a miscarriage of justice in crimi-
nal matters has been provided for in the Constitution in
an ample measure. Expense and enlargement of the work
of the Supreme Court, it has been argued, should not stand
in the way of giving relief to the persons convicted in cri-
minal matters, as the life and liberty of human being are
more important than property. But that cannot conclude
the matter. Life and liberty are certainly more important
than property, but an unrestricted right of appeal either in

civil or in criminal matters will do incalculable harm to
the society?

The general principle behind article 134, is that a per-
son who has beer; condemned to death ought to have at
least one right of appeal". This can be illustrated with
reference to article 134(1) (a) and (b). Thus, the principle
on which article 134(1) (a) proceeds is that where a per-
son acquitted by the Court of Session (or, in the case of
High Court exercising original criminal jurisdiction, at the
High Court sessions) is, or.' an appeal against acquittal,
convicted by the Appellate Bench, a right of appeal to the
Supreme Court is needed, because the initial presumption
of innocence is, in this case, further strengthened by the
fact that the trial judge has found him innocent. If, against
this double presumption, the Appellate Bench ﬁnds him
guilty and sentence him to death, it is certainly a matter

I Replies to question ID have been su'nrnarise;l separately. See para-
graphs 926, 956, supra.

2 cf. Dr. Bakshi Tel: Chand's speech, Vol. 8
Debates, page 850 (14th June, 1949).

3 Dr. Ambedkar's speech, 8 C,A.D. 853.

, Constituent Assembly



Plea of
guilty.

304

which requires further investigation'. Similarly, article
134(1) (b) provides a right of appeal to a person who has
been acquitted for the ﬁrst time and condemned to death
by the High Court, and is based on the principle that a
person who has been condemned to death ought to have
at least one appeal".

986. These considerations do not apply to the cases
sought to be covered by the suggested enlargement of the
Supreme Court's jurisdiction. In cases other than those
covered by article 134(1) (a) and (b), the facts of the case
would have received detailed consideration at the hands
not only of the Court of Session but of the High Court, and,
in effect, the High Court goes through the whole evidence
over again in conﬁrmation proceedings; and if it ﬁnds that
the accused has been rightly convicted on the evidence,
there are concurrent ﬁndings on facts. In such a case, it
will be wrong to allow an appeal to the Supreme Court,
as such appeal will amount to an appeal on grounds of
facts.

987. Lastly, there is no reason to believe that the appel-
late jurisdiction of the Supreme Court is not a sufﬁcient
safeguard against the miscarriage of justice.

988. The fact that the Supreme Court had, in a majo-
rity of cases", to refuse leave to appeal, further shows that
that Court has not found any serious ﬂaw in the present
scheme. It is, no doubt, true that no human agency can
be infallible, and it can be appreciated that a person
sentenced to death may be desirous of having his case
considered at the hands of the court of last resort. A line
has, however, to be drawn somewhere; the existing law
draws the line at the level of the High Court, and no con-
vincing reasons have yet been made out to shift that line
higher up.

989. Further, the existing law provides adequate safe-
guards against an error on facts.

For these reasons, no change is recommended.

TOPIC NUMBER 51
Plea of guilty.

990. How far a plea of guilty should be accepted by the
court in a capital case, is a question which may be discus~
sed, in view of its importance. The present practice in
India is not to accept a plea of guilty in such cases"-5. The

I Dr. Bakshi Tek Chand's speech, Vol. 8, Constituent Assembly Debates,
page 851 (14th June, 1949).

2 See Dr. Ambedkar's speech, 8 C.A.D. 853 (14th June, 1949).

3 See ﬁgures relating to special leave to appeal to the Supreme Court,
given separately.
4 See analysis of case-law_ Case No. 29 and foot notes thereto.
5 See also Achar Sanghar v. Emp., A.I.R. I934 Sind 204, 205.



305

relevant provisions of the law as to a plea of guilty in trials
before the High Courts and Courts of Sessions are contain-
ed in sections 271 and 272 of the Code of Criminal Proce-
dure, 1898. These are quoted beloW:----

"271. (1) When the Court is ready to commence the
trial, the accused shall appear or be brought before
it, and the charge shall be read out in Court and ex-
plained to him, and he shall be asked whether he is
guilty of the offence charged, or claims to be tried.

(2) Ilf the accused pleads guilty, the plea shall
be recorded, and he may be convicted thereon.

272. If the accused refuses to, or does not plead,
or if he claims to be tried, the Court shall, in a case
triable by jury, proceed to choose jurors as hereinafter
directed and to try the case, but in any other case, the
Judge shall proceed to try the case himself:

Provided that, in cases triable by jury, the same
jury may, subject to the right of objection hereinafter
mentioned, try as many accused persons successively
as the Court thinks ﬁt.".

991. It may be noted, that these provisions leave a dis
cretion to the Court to accept a plea of guilty. Ordinarily,
however, the plea is not accepted in a capital case, though
there is nothing illegal in doing so if the Court is satisfied
that the accused understands all the essential elements of
the crime and the effect of the plea. It will not be a wise
exercise of the discnetion to accept the plea of guilty in a
capital case. Charges of murder, it has been pointed out,
frequently involve complicated questions as to the know-
ledge and intention with which the death of the victim was
caused, and it is undesirable (unless the case is clear) to
convict the accused on his pleal. For this reason, courts
err on the side of caution, and the practice has grown up
not to accept the plea of guilty"-3.

992. We quote from the judgment in an Allahabad case"
which contains instructive observations on the subject:--
"Bhadu was convicted on his own plea without
evidence being recorded in the Sessions Court. He
was charged with the offence punishable under sec-
tion 302 of the Indian Penal Code. The case against
him was that he had murdered his wife. His plea as
recorded is as folloWs:--
Guilty. I killed my wife. She had abused
me. Called me 'ware'. No one Was present. I killed
her with a Kulhari.".

1 Achar Saughar v. Emp., A.I.R. 1934 Sind 204, 205.
2 Queen Empress v. Chinna Pavuchi, (I900) I.L.R. 23 Madras 151, 154.
3 Dalli v. Emp., A.I.R. 1922 Allahabad 233 (1).

4Queen Empress v. Bhadu,(1896) I.L.R. 19 A11. I19, 120, I21 (Edge
and Elennerhassett L).



306

We are not clear whether the word "guilty" in the
plea was Bhadu's or was the interpretation of the
Judge of the meaning of Bhadu's plea. In any event
it was not an unqualiﬁed plea of guilty, and although
the words of abuse which Bhadu said had been used
might not have effect to take the case out of section 392
of the Indian Penal Code, they put a qualiﬁcation on his
admission and made it necessary in our opinion that
the trial should proceed and evidence should be taken.
In this country it is dangerous to assume that a pri-
soner of this class understands what are the ingredients
of the offence under section 302 of the Ilndian Penal
Code, and what are the matters which might reduce
the act committed to an offence under section 304.
Even in England, it used to be the practice of some
judges, and probably is still, although they were not
bound to do so, to advise persons pleading guilty to a

capital offence to plead not guilty and stand their trial. .

One of us had known that course followed in numerous
casesfﬂ

(The case was sent back to the Court of Session, with a
direction to the Judge to take evidence and proceed on
the basis of the plea not being unqualiﬁed plea of guilty.
The case Was, subsequently, tried on evidence taken before
the same Sessions Judge, and the accused convicted and
sentenced to death. The sentence was conﬁrmed by the
High Court).

993. If a plea of guilty is accepted, the accused cannot.
appeal from the conviction'. He can appeal only on the
ground of the extent or the legality of the sentence. By
pleading guilty, he is considered to have waived his right
of appeal. "The intention of the Legislature would appear
to be to treat the plea of guilty as a waiver of the right of
appeal except as to the justice and legality of the sen-
tence'-"'. The restriction, of course, does not apply to the
High Court acting in revision under section 439. Code of
Criminal Procedure'°'-4.

994. The practice in England is this: Generally, where
an accused pleads guilty and it appears to the satisfaction
of the Judge that he rightly comprehends the effect of his
plea, the sentence can be forthwith passed on him after
recording his confession'. In a case of serious crime. the
court is usually reluctant to accept the plea, and will ad-
vise the prisoner to retract it. But, if the prisoner still
refuses to withdraw his confession, there is no alternative

I Section 412, Code of Criminal Procedure, 1898.

2 Emp. v. _7affar M. Talab, (1880) I.L.R. 5 Bombay 85, 87. (Case
under section 167, Presidency Magistrates Courts Act, 1877).

3 Krislma Chanda v. Emp., A.I.R. 1943 Pat. 313 (Rowland J.).
4Alz' Hossein v. Emp., A.I.R. 193 Rangoon 349, 350.
5 Archbold, Criminal Pleadings etc. (1962), paragraph 424.



307
but to accept it even in the case of murder, of which
instances have occurred even in recent times'.

995. The matter was considered by the Canadian Com-
mittee. The Committee noted'-' that it was possible for an
accused to plead guilty to a charge of murder. "On rare
occasions, a person convicted of murder has insisted on
entering a plea of guilty. In these cases, the courts have
insisted on the production of sufﬁcient crown evidence to
assure that the charge was well founded." The Committee
believed that it was extremely undesirable to admit pleas
of guilty in capital cases, "because the capacity of the
accused must always be taken as doubtful and the accept-
ance of the plea almost makes the court privy to a scheme
for self-destruction". It. therefore, recommended, that the
law be amended to provide that all murder trials should
proceed as if a_plea of not guilty were entered.

996. Accordingly, in 1961, section 515 of the Criminal
Code of Canada" was amended. Section 515, sub-section
(2a) and (2b), of that Code as amended, are quoted
below:----

"(2a) An accused who is charged with an offence
punishable by death and is called upon to plead may
plead not guilty, or the special pleas authorised by this
Part and no others.

(2b) Where an accused who is charged with an
offence punishable by death does not plead not guilty
or one of the special pleas authorised by this Part or
does not answer directly, the court shall order the
clerk of the court to enter a plea not guilty".

We have to consider whether any such mandatory pro-
vision is needed. Since, in India, a sentence of death has
to be conﬁrmed by the High Court5, which would certainly
see that no injustice is caused, by the acceptance of a plea
of guilty without very strong reasons. We do not there-
fore recommend the insertion of a speciﬁc provision

TOPIC NUMBER 52

Medical Examination of the accused

997. The topic of medical examination of the accused Medical
in a capital case, which was considered by the Royal Com- Evmination

mission", may be dealt with, as it is of interest to our gccutsgg

I Archbold, Crim'r_1al_ Pleadings, egc. (I962), paragraph II27, citing R_
1. Vent, (1935) 25 Criminal Appeal Reports, 55.

2 Canadian Report, page 3, paragraph 6.

3 Canadian Report, page 19, paragraph 8i,

4 (Canada) Criminal Code, as amended in 1961, section 515.
5Section 374, Code of Criminal Procedure, 1898.

6 R. C. Report, page 145, et seq and Appendix 9, page 416 et seq. 1



308

country also. The importance of ensuring full and reliable
information about the mental state of an accused charged
with murder, need not be emphasised. The (existing pro-
visions of the law may be referred to in this respect.
Under the Code of Criminal Procedurel, if any person com-
mitted for trial before a Court of Session or at High Court
appears to the court at the trial to be of "unsound mind
and consequently incapable of making his defence", the-
jury or the court shall, in the ﬁrst instance, try the fact
of such unsoundness and incapacity; and if the jury or the
court is satisﬁed of the fact, the Judge shall necorjd a ﬁnd-
ing to that effect and shall adjourn further proceedings in-
the case. If such person is found to be of unsound'
mind and incapable of making his defence, then, under the-
same Code", he can be released on security being given,
etc., or may be ordered to be detained in safe custody.

998. Now, it will be noted that these provisions are de---
pendent upon it "appearing to the court" that the accused?
is of unsound mind, etc. There is no automatic examina-
tion of the mental state of the accused. The Royal Com-
mission" recommended that every person charged with
murder should be specially examined as to his state of
mind by two doctors, of whom one at least should be a psy-
chiatrist of standing who is not a member of the Prison
medical service, and the other usually an experienced mem-
ber of that service. In making this recommendation, the-
Royal Commission had two objects, ﬁrst, to recognise the
fact that where a person is charged for a crime for which
the ﬁxed penalty is death, it is the duty of the State to
obtain the best advice on his mental condition as a guide to
the conduct of the case; and secondly, to ensure that the
evidence presented on the point by the State, should have
the weight that can be given only by authorities of "the
highest skill, fullest experience and manifest impartiality".

999. In this connection, mention may also be made of
what is known as the B1-igg's Law, enacted in the State of
Massachusetts, under which an accused charged with a
capital oﬂ"ence (as well as an accused indicted for any
other offence more than once or previously convicted of
felony), must be examined by experts appointed by the
State Department of Mental Health'.

1000. Provisions on the subject exist in the laws of cer-
tain other States of the United States of America, and also
in certain countries of the Continent also5.

I Section 465, Code of Criminal Procedure, 1898.
2 Section 466, Code of Criminal Procedure, 1898.
3 R. C. Report, page 145, paragraph 422.
_ 4R. C. Report, page 148, par agraph 426, contains a detailed discus
s1 on.
5' See detailed discussion in R. C. Report, pages 416 to 424, paragraphs
17----zo.



309

CHAPTER XIV
MERCY
Tor-1c NUIVIBER 53 (a)

Existing powers of commutation.

1001. Coming to what is known as the "prerogative of Existing ,
mercy", we may note the provisions on the subjects con- 
tained in articles 72 and 161 of the Constitution and sec- mm,
tion 401, 402 and 402A of the Code of Criminal Procedure'.

These are quoted below:----

"72. (1) The President shall have the power to

' grant pardons, neprieves, respites or remissions of

punishment or to suspend, remit or commute the sen-
tence of any person convicted of any offence-

(a) in all cases where the punishment or sen-
tence is by a Court Martial;

(b) in all cases where the punishment or sen-
tence is for an offence against any law relating to
a matter to which the executive power of the Union
extends2;

(c) in all cases where the sentence is a sen-
tence of death.

(2) Nothing in sub-clause (a) of clause (1) shall
affect the power conferred by law on any officer of the
Armed Forces of the Union to suspend, remit or com-
mute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall
affect the power to suspend, remit or commute a sen-
tence of death exercisable by the Governor of a State-
under any law for the time being in force.

161. The Governor of a State shall have the power
to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sen-
tence of any person convicted of any offence against
any law relating to a matter to which the executive"
power of the State extends".

401. (1) When any person has been sentenced to
punishment for an offence, the appropriate Govern-
ment may at any time without conditions or upon any
conditions which the person sentenced accepts, sus-
pend the execution of his sentence or remit the whole
or any part of the punishment to which he has been
sentenced.

I Sections 54 and 55 of the Indian Penal Code may also be seen.

2 As to executive power of the Union, see article 73 of the Constitu-
tion.

3 As to executive power of the State, see article 162 of the Counta-
tion.



310

(2) Whenever an application is made to the (app: 0-
oriate Government) for the suspension or remission of
a sentence, the (appropriate Government) may re-
quire the presiding Judge of the court before or by
which the conviction was had or conﬁrmed to state his
opinion as to whether the application should be grant-
ed or refused, together with his reasons for such opi-
nion (and also to forward with the statement of such
opinion a certiﬁed copy of the record of the trial or of
such record thereof as exists).

NB. (Remaining sub-sections not quoted).

402. (1) The appropriate Government may, with-
out the consent of the person sentenced, commute
any one of the following sentences for any other men-
tioned after it:--

death, imprisonment for life, rigorous imprison-
ment for a term not exceeding that to which he might
have been sentenced, simple imprisonment for a like
term, ﬁne.

(2) Nothing in this section shall affect the provi-
sions of section 54 or section 55 of the Indian Penal
Code.

(3) In this section and in section 401, the expres-
sion "appropriate Government" shall mean-

(a) in cases where the sentence is for an
offence against, or the order referred to in sub-
section (4A) of section 401 is passed under, any
law relating to a matter to which the executive
power of the Union extends, the Central Govern-
ment; and

(b) in other cases, the State Government.

402A. The powers conferred by sections 401 and
402 upon the State Government may, in the case of
sentences of death, also be exercised by the Central
Government."

TOPIC NUMBER 54
[Replies to question 11 (a)]

""'ff;'tii'E)5n'° 1002. Question 11 (a) in our Questionnaire was as 1501--
'?.',",J)_ lows:--

" (a) Have you any suggestion to make with res-
pect to the power of the President and the Governor to
grant pardon, reprieve, respite or remission in respect
of the punishment of death or to suspend, remit or

.commute the sentence of death under articles 72 and
161 of the Constitution and the power of the Govern-

0-.me'nt to suspend. remit or commute such sentence
under sections 401-402, Criminal Procedure Code?". '



311

A very large number of replies to this question express
general satisraction with the powers contained in the exist-
ing p1'OV'iSlO'!lS.

But it must be noted that certain replies suggest res-
trictions on these powers in matters of detail, and since
such replies have been received from various sources (in-
cluding a few State Government and High Courts also), it
would be desirable to state here the important points made
in those replies.

1003. The principles on which these powers are exercised
have been stated in a reply coming from a very knowledge-
able source', the gist of which is as follows: --

The exercise of power of the President to grant
pardon to or commute the sentence of death, under
article 72 of the Constitution, or that of the Governor
under article 161 and sections 401 and 402, Criminal
Procedure Code, depends upon certain extenuating cir-
cumstances such as the following:--

(i) where the murder was committed without
premeditation, in a sudden quarrel, or without
any intention to kill; or

(ii) under provocation, or in furor brevis, or

(iii) where the offender was a person of
abnormal mind.

1004. One of the High Courts2 has stated that the Presi-
dent and the Governor should not exercise these powers
unless they receive satisfactory proof that the conviction is
against facts, or that the courts have not properly exercised
their discretion in awarding capital punishment. They
should take the facts found by the courts as correct, and
should not "sit in judgment" over the courts.

1005. A suggestion made by certain High Court J udges"
is that some provision should be made laying down the
conditions under which the President or the Governor can
commute the sentence, etc. On legal aspects, it is stated,
the decision of the court should be ﬁnal, and a mercy peti-
tion should be entertained only on some other ground, e.g.,
changed circumstances.

1006. Some High Court Judges' have suggested that par-
don or reprieve should be granted on very rare occasions
on special grounds and in very hard cases, and not for poli-
tical reasons and certainly not for cold-blooded murders.

1 A retired District and Sessions Judge (Formerly Law Secretary to
--a State Government and Secretary to the President), S. No. 139.

2 A High Court, S. No. 187.

3 Two High Court Judges, S. No. 97.

4 Two High Court Iudges, S. No. I54.
22--122 M of Law



312

1007. One suggestion  to the effect that the judiciary

should always be supreme, and the power of pardon should

\ 4-.-47.'... .....».-.
(DC Lwleeiu ttwLLg.

1008. A Bar Association'-' has stated that these pgwers
should no longer remain with the President or the Gover-
nor, and that while the petition may be addressed to the
President or the Governor, it should (if the executive so
thinks ﬁt) be referred to the last court which sentenced the
person concerned (with a recommendation, if any), and
the decision of that court in the matter should be ﬁnal.

Certain other points have been made, which will be
dealt with later".

1009. An Inspector-General of Police" has suggested
deletion of sections 401 and 402, Criminal Procedure Code,
on the ground that in the interest of administration of jus-
tice, it is not necessary or desirable to empower the Gov-
ernment to exercise powers almost similar to those confer-
red by the Constitution on the President and the Governor.

1010. Another suggestion5 is that the power should be
exercised by the President only (who is elected as the
supreme authority of the country), and that to avoid clash
and confusion, it would be better if the Governor is not
given the power. One Bar Council has stated that the
provisions in sections 401 and 402, Criminal Procedure Code,
need not be retained, and only the powers under the Cons-
titution may be continued.

1011. The Judicial section of the Indian Officers' Associa-
tion" in a State has stated:---

"The President, being the repository of the supreme
temporal power and grace and the symbol of all that is
best of the nation, should have unfettered discretion in
the exercise of his power to grant pardon. The grant of
pardon by the Governors, however, in respect of sen-
tences of death should be limited to commutation to
imprisonment for life. This is necessary to preserve
the element of deterrence and (to prevent) chance of
factors otherwise than strict compassion coming into
play to render nugatory the decisions of the highest
tribunals of the land.".

I S. No. 117.
2 Supreme Court Bar Association, S. No. 110.

3 See discussion relating to question 11(6).

4 An Inspector-General of Police, S. No. 143.
5 A Bar Council, 5. No. 132.

6 S. No. 562.



313
TOPIC NUMBER 55
Dual prerogative

1012. In connection with the power to commute death

Dual pow;
of C017'. 71.11}? > :..

sentences, reference must be made to one important point tion.

which requires discussion. Under article 72(1) of the
Constitution, the President has a power to grant pardons,
etc., to commute sentences, etc., (so far as is relevant) not
only in all cases where the punishment or sentence is for
an offence against any law relating to a matter to which
the executive power of the Union extends,-

Paragraph (b)--but also in all cases where
sentence is a sentence of death---

Paragraph (c)----but the later power is not to affect
the power to suspend, remit or commute a sentence of
death exercisable by the Governor of a State under
"any law" for the time being in force.

the

Under article 161, the Governor of a State shall have a
power to grant pardon, etc., or to pardon, remit or com-
mute the sentence of any person convicted of any offence
against any law relating to a matter to which the executive
power of the State extends. The extent of the executive
power of the Union is dealt with in article 73(1). The ex-
tent of the executive power of the State is regulated by
article 163, under which it extends to all matters with res-
pect to which the Legislature of the State has power to
make laws----which would include criminal law. The pro-
viso to article 163, however, states that in any matter with
respect to which the Legislature of a State or Parliament
has power to make laws, the executive power of the State
shall be subject to and limited by the executive power ex-
pressly conferred by this Constitution or by any law made
by Parliament upon the Union or authorities thereof.

1013. It would be obvious that, so far as the commutation
of the sentence of death is concerned, it falls both within
the power of the'President and within the power of the
Governor under the Constitutionl; and none of the provi-
sions of the Constitution cited above? seem to have the
effect of taking away the power of the Governor.

1014. We may next refer to the provisions" of the Code
of Criminal Procedure, 1898. Under section 401 (1) of that
Code. the "appropriate Government" may conditionally or
unconditionally suspend the execution of sentence or remit
the whole or any part of the sentence. Under section 402(1),

I Cf. In re Channugadu, A.I.R. I957 Andhra Pradesh 249, 251, para-
graph 4 (ffubba Rao 1.).
2 Paragraph 1012, supra.
3 Sections 401, 402A, Code of Criminal Procedure. 1898.



314

the "appropriate Government" may commute the sentence
of death to imprisonment for life or other lesser sentence.
The deﬁnition of "appropriate Government' is contained in
section 402 (3), but it is unnecessary to consider it, because,
under section 402A, the powers conferred by these sections
upon the State Government may, in the case of the sen-
tence  deat/t, also be exercised by the Central Govern-
ment. The vesting of the power in two Governments, found

in the Constitution, is thus reﬂected in the Code of Criminal
Procedure also.

1015. Lastly, powers of commutation, etc., are conferred
by section 54 read with section 55A of the Indian Penal
Code, in respect of the sentence of death, and the same dual
power exists under these provisions"-2. These sections are
saved by section 402(2) of the Code of Criminal Procedure,
1898, which was inserted by the Amendment Act of
1923 in view of the fact that" doubts had been expressed
whether section 402, Criminal Procedure Code was not in
conflict with section 54, Indian Penal Code,

1016. This dual power' existed in section 295 of the
Government of India Act, 1935 also5.

1017. Theoretically speaking, the vesting of this power
in two authorities may be objectionable, because it may
result in the following situations:--

(i) The petition may have been granted by one,

but an independent petition may have been rejected by
the other.

(ii) The petition may have been rejected by one,
but granted by the other.

(iii) The petition may have been accepted by one
and the sentence commuted for imprisonment for life,
while it may have been accepted by the other and the
sentence commuted to some other lesser sentence.

(iv) Where there is a petition by several persons,
petitions of a few persons may have been accepted by
one and the petitions of other persons rejected, while

1 Section 54 Indian Penal Code authorises commutation without con-
sent and to any other punishment.

2 When the Indian Penal Code was enacted, provisions as to pardon,
etc., were also contained in the Pardons and Repricves Act (18 of 1855),
repealed by the Repealing Act, 1874. In the Code of Criminal Procedure
1861, section 54 was narrower than present sections 401 and 4C2.

3 See Gazette of India (Part V), March 28, 1914, page 125 (BillNo.3
of 1914, Clause 93).

4Paragraphs 1012--1015, supra.

5 Cf. the discussion of history of the power in K. M. Nqnavati V. :State
of Bombay, (1961) I S.C.R. 497; A.I.R. I961 S.C. I12, I27 (dissenting judg-
ment of Kapur J.). That the power of the Governor to grant pardon, etc.,
under article 161 "to some extent overlaps the same power of the President,
particularly in the case of sentence of death", was noted in the majority judg-
ment also; see page 119, paragraph 13 in the A.I.R.



315

the petitions of the others may have been accepted by
another authority.

These situations can cause practical embarrassment,
and, iurther, where the commutation is granted differently

under (iii) above, by the President and the Governor, legal
complications can also arise.

1018. The suggestion of the Chief Minister of a State
with reference to the dual power may be quoted1:--

"Governor should be left with this power when the
crimes had been committed in his territory. If com-
mitted in the territory under the Central Government,
President should be vested with this power. But in
cases where the Governors reprieve or suspend or
commute or remit the sentence, they should get the
approval of the President."

1019. It may not be necessary to go to the length of sug-
gesting any modiﬁcations in the articles of the Constitution
or the sections in the Criminal Procedure Code.

The matter is one which can be left to administrative
instructions.

CONCLUSION
TOPIC NUMBER 56

Need for retaining the Power

1fT"C~. A question th-,:t is often put is whether the Presi-
dent and the Governor should have the power of commuta-
tion, and queries are raised as to whether the executive
should be allowed to override the decisions of the judici-
ary. When the case of a person has reached the highest
tribunal in the land, and the conviction and the sentence
of death have been upheld by that tribunal, would it not,
it is asked, be derogatory to the prestige of that tribunal
to commute the sentence on whatever grounds?

1021. Answer to this question requires an understanding
of the essential nature of this power. It is a "prerogative",
and an illustration of "that special pre-eminence", which
the head of the State possesses. Its existence and exercise
are not, in any way, construed as interference with the
judiciary. Secondly, the expression "mercy" indicates the
scope of, as well as the justification for, the power. With the
best precautions in the world, cases must occur where facts,
not known to the court, exist which justify the exercise of

I S. No. 255, under question I1(a).

Need for re-
taining the
power.

Essential
nature of
prerogati re
of mercy.



316

this prerogative. The following observations, in an Ameri-
can case', express, in a beautiful language, the nature of
this power:--

"Executive clemency exists to afford relief from
undue harshness or evident mistakes in the operation
or enforcement of the criminal law. The administra-
tion of justice by the courts is not necessarily always
wise or certainly considerate of circumstances which
may properly mitigate guilt. To afford a remedy, it
has always been thought essential in popular govern-
ments, as well as in monarchies, to vest in some other
authority than the courts, power to ameliorate or avoid
particular criminal judgments. It is a check entrusted
to the Executive for special cases. To exercise it to the
extent of destroying the deterrent effect of judicial
punishment would be to pervert it; but whoever is to
make it useful must have full discretion to exercise it.
Our Constitution confers this discretion on the highest
oﬂicer in the nation. in conﬁdence that he will not

abuse it.".

1022. The meaning and signiﬁcance of the prerogative of
mercy has been very well described by Sir Frank Newsam,
who was Permanent Under Secretary of State for the
Home Departmentg, in these words:--

"MAINTENANCE of the Queen's Peace demands
careful and impartial enforcement of the law by the
judiciary. But law is made for man; justice is more
than codes and precedents; and there are occasions
when justice and humanity demand that there shall be
interference with the due course of law----that is, exer-
cise by the Crown of the Prerogative of Mercy".

Joseph Chitty put the matter thus--

"Human institutions are fallible, and must in many
respects be imperfect. No human faculties can antici-
pate the various temptations which may urge a man
to the commission of an offence; or foresee all the
shades in the circumstances of a case which may ex-
tenuate the guilt of the accused. An offence may be
within the letter, but foreign to the general scope and
spirit of the law. . . .As, therefore, society cannot suffi-
ciently provide for every possible transgression of its
ordinances, and measure by anticipation the degree of
guilt which may attach to the offender, it has entrust-
ed the King with the power of extending mercy to him.
The King is, in legal contemplation. injured by the
commission of public offences; his peace is said to be

1 Fx pavre Grosxnzan, (1924) 69 Law Ed. 527; 261 US. 287, cited In
re Cha/mugadu, A.I.R. 1954 Mad. 911, 916, 917.
2 Sir Frank Ncwsam, The Home-Oﬁice (The l'--.'ew White-Hall Series),

(1955). page II3.



317

violated thereby, and the right to pardon cannot be
vested more properly than in the Sovereign."

The use of the prerogative is not conﬁned to mitigating
unreasonable hardships. It extends also to righting wrong-
ful convictions?

1023. The observations of Holmes J. in an American case
may also be referred to as explaining the true nature of the
power. In that case, the death sentence of a convict had
been commuted to life imprisonment by President Taft in
1909. After nearly two decades of prison life, the prisoner
concluded that "he would be better off dead", and attacked
President Tai't's action as a pardon which he had not ac-
cepted". Holmes J. observed*-'':--

"A pardon in our days is not a private act of grace
i'iu;:'n an in-:iividLi;;1 happening to possess power. It is a
part of the Constitutional scheme. When granted, it is
the determination oi the ultimate authority tltrit the
public welfare will be better served by inflicting less
than what the judgment ﬁxed." (Life imprisonment
\',".:-' held to be less than death).

 
   

102;. As observed in a leading study of the American
President", it is demanded that the capacity to iorgive
shall be the strongest of his impulses.

1025. It may be argued that in a country like India, R€C_0mm¢n'
where the sentence of death is not mandatory and the dam" f°'
court is free to consider the ciicumstances relevant to the the pom,'
question of sentence, this power is not needed. We are
not. lio'-:;'ever, inclined to agree with this view. There are
many matters which may not have been considered by the
courts. The hands of the court are tied down by the evi-
dence placed before it. A sentence of death, passed by a
court alt;-r consideration of all the materials placed before
it, may yet require re--consideration because of (1) facts
not placed before the court; (ii) facts placed before the
court, but not in the proper manner; (iii) facts discovered
after the passing of the sentence; (iv) events which have
developed after the passing of the sentence; and (V) other
special features. Nor can one codify;  select these
special features, which would be too numerous to lord

I Chi:r_v's Prerorgarives of the Crown, (1820), 88-89, cited in Sir Frank
Ncwsarn. The Horn': Office, (1955), page 113-
2 Sir Frank Ncwsam, The Home Oﬂice, (I955), page 113-
3 Sce Dritchcrt, A-n~:=:.m Comititution, (1959), page 32.
4 Biddle v. Perovic, (I9?-") 274 U-S- 480-
G~~~r1l1y as to *he aaaition in U.S.A., see Corxvin--Crmstituﬁon of
the U s 1"" hamis all I-rcrpretation (X952), page 399 (mdcr Ariiclc 2»
sctionha; clause 1), anl P336 407 (C339'13W), mi P333 49'? f0°'"'"e 5
(literature).
5 31 'ney Hyman, the American President (1954).

retention «.2 1.'



Question
I 1(b).

Principles-
Replies re-
garding.

318

themselves to codiﬁcation. For these reasons, we do not
recommend any change in the scope of these powers'.

Torre Nuivrsim 57 (a)

Principles and procedure for 'exercise of prerogative of
mercy

1026. Question 11 (b) in our Questionnaire was as

follows: -

"What, in your opinion, should be the principles
which should guide and the procedure which should be
followed in the exercise of these powers?".

1027. A number of replies have stated that these prin-
ciples cannot be laid down or codiﬁed or stated precisely.
Certain replies, while suggesting broad principles, make it
clear, that these principles can be taken only es a good
guide. Thus, one reply? states that the Home Secretary
take into consideration not only the life history of the
prisoner, but also the motives and mental condition. So,
also, the state of the popular feeling is taken into account.

1028. The reply refers to the views expressed in 1907
by Herbert Gladstone, Home Secretary3, emphasising that
numerous considerations are relevant and that it does not
depend on principles of strict law and justice, still less of
sentiment. It is a question of policy and judgment in each
case."

The reply also points out that if the scrutiny of evi-
dence shows that there is a scintilla of doubt about the
guilt of the prisoner, it would be a ﬁt case for the exercise
of clemancy.

1029. Some of the considerations that may be taken into
account have been thus enumerated by one State Govern-
ment4--age, sex, mental deﬁciency of the accused, circum-
stances of the case, (e.g., whether the offence was commit-
ted under grave and sudden provocation, etc.).

Some High Court J udgesﬁ have stated that some of the
principles which may be borne in mind seem to be these
The power may be exercised:--

(i) where there are mitigating circumstances

which may not have received suiﬁcient attention in the
courts;

I Figures of mercy petitions are given separately.
2 A retired District and Sessions Judge (Formerly Law Secretary to a
State Government and Secretary to the President), S. Ixo. 139.

3 The reference seems to be to the speech of Mr. Herbert Gladstone
(Home Secretary) on nth April, I907--Par1iamentary Debates. Fourth
Series. Vol. 172. co]. 366. Also See his speech on 31st May. 1907 on the
Criminal Appeal Bill, Parliamentary Debates, Fourth Series, Vol 175,
column 187.

4 A State Government, S. No. :29.
s Two High Court Judges, S. No. I47.



319

(ii) when, after conviction, circumstances
brought to light indicating that the
wrong;

are
conviction was

(iii) speaking generally, to harmonise the dictates
of law and justice where they may operate divergent-

ly, or, putting it in other words, to prevent a clear
miscarriage of justice.

1030. Some High Court Judges1 have suggested that no
reprieve should be granted unless it is recommended by
the High Court. That this limitation should ordinarily be
recognised, is a suggestion made by another High Court
Iudgeg. It has also been suggested by one State Govern-
ment3 that these powers should not be exercised to short-
circuit the legal process of the court. "Regarding princi-
ples I am to suggest that some directive principles may be
issued by the Central Government for the guidance of the
State Governments. Such executive directive principles
may include the circumstances which should be based on
usual distinction between crime of murder involving per-
sonal disputes and crime involving. security of the State."

1031. One of the State Government' has pointed out
that powers relating to grant of pardon are co-related to

the sentiments of mercy, and the principles cannot be
codiﬁed.

1032. Another State Government5 has suggested that
while the procedure does not call for a change, it would
be better if certain principles are indicated to serve as a
guide in the disposal of such petitions, and states that there
are no ﬁxed principles in these cases----which is not a very

happy state of affairs. The points made in the reply
are:----

(a) a general principle may be laid down that the
ﬁnding of fact recorded by the High Court or the Sup-
reme Court: as the case may be, should be accepted as
correct, (while dealing with the petition of mercy),
and no attempt should be made at diluting the effect
of the ﬁnding of fact recorded in the judgment;

(b) broadly speaking, a commutation may be per-
mitted on the ground of-
0) age;
(ii) provocation;
(iii) past conduct;

1 Two High Crurt Judges, 5. No. IC_~'.
2 A High C,r_-urr ]'u;'ge. .". No. 147.
3 A State Go'~'ernme'=t,  No. 129.
4 A State G0'.'ernmcm',  N0. 154.
 A State Gmernmeiit. S. No. 182.



320

(iv) the fact whether the accused at the time
of the commission of the oiience acted under the
inﬂuence of another in circumstances in which he
could not possibly exercise his independent judg-
ment; and

(v) similar other grounds.

1033. An eminent member of the Bar1 has stated that
the principles which should guide the President, etc., in
the exercise of their powers should be either humanitarian
or should enable the respective authorities to take into con-
sideration what the courts, in the existing state of law,
vvc-7.ild not be entitled to consider.

10:34. He has also expressed" the view----an opinion
:~.";;;~..'cd l:y a Ba: Council"'--that neither the President nor
the Governor should have power to give pardon, reprieve,
respite or remission in respect of the punishment of death
or to s tpend, etc., a sentence either under the Constitution
or unoc-r the Criminal Procedure Code while the ordinary
juciicial process is still incomplete.

1035. It has also been stated4 that in extremely revolt-
ing and heinous cases of murder, which are committed as
a result of conspiracy, none should have the power to
commute the sentence.

1036. One of the principles'5 suggested as a guide is
whether the condemned person was, in the ﬁrst instance,
acquitted by the inferior court or whether there was any
difference of opinion in the Judges in the High Court or

the Supreme Court.

1037. The View of a State Government" is that the
theory of "scintilla of doubt" in the matter of exercise of
the prerogative right of pardon need not be introduced in
this country. All relevant circumstances must be taken
into consideration, but the doubt as to evidence in the
r:as',e should not be taken into consideration, and must be
left exclusively to the judges. If, however, there are
factors which show that the evidence recorded did not
accurately reflect the true state of facts, and these cir-
cumstances had been so manipulated that detection of
such rnanipulation was not possible during the trial, then,
accor'd.i::;{ to that State Government, the power of pardon
inay be exercised.

I .-\;1 " -*1'Incnt n*--e'nhcr ofihc Bar (through the Bar Council of Iticia),

*~.:;.i'hr:r of the Bar, 8. No. 161.

 
   
 

 

3 A  C .  No. 'rm.
3, .'x fxicnihcr oz" ; ant and 'De;m.:tj: I'.'N:'\'s'c:'. b. No. 210.
5 .'.n A.lv::=:a'c. . . info. 2-3r.

3  No. 574.



321

1038. Another State Government' has expressed the
view that it is not possible to state the principles and
that the matter should be left to the "wise counsel and
superintending authority" of the President, the Gover-
nors and the Government.

1039. According to another State Governmenti', there
should be no fetters on the powers, as these powers are
in the nature of prerogative and the Legislature need not
transgress on these powers.

1040. According to the Chief Justice of a High Court''',
the principles which should be observed by the President,
the Governors and the Government in the exercise of
these powers should be, that if no new facts and circum-
stances, not already on the record of the murder case, are
alleged in the mercy petition, then the power of pardon,
respite, and remission should not be exercised. Where
new {acts and circumstances are sought to be adduced,
steps should be taken to record such evidence, and the
record should be placed before the Judge who convicted
the accused or conﬁrmed the sentence, for his views as
to whether, in View of the fresh evidence, he would re-
commend any remission, or pardon, etc; and action should
be taken according to the view of the Judge. In this re-
gard, no particular procedure is necessary so far as con-
sultation with the Judge is concerned, but, where facts
are alleged or certain evidence sought to be adduced
which are not on the record of the murder case, it would
be advirzable for the Government to appoint a Commis-
sioner or a Tribunal to record fresh evidence and submit
its report, and this report should be sent to the Judges
while consulting them in the matter of remission, pardon,
etc.

1041. According t.o a High Court Judge', these powers
should not be fettered by a legislative enactment, but the
principles which should guide the executive in the exer-
cise of the powers are to correct possible judicial errors
or to relieve a convict from a sentence which is mistaken,
harsh, or disproportionate to the crime. In a proper case,
it may also be guided by policy considerations so as to
meet the justice of the case.

That the guiding principles should be to meet the jus-~
tice of the case where it is pre-eminently necessary to do
so. has been emphasised in the reply of another High
Corrt Judge5.

I '4. 'lo. ~'6o.

 .\Tn_ 2.41.

» 3:"-€};::§c: of :1 ':Iig'1 Cv..\:irt, S. No. 393.
1 A i--['a~.,'=i CD'_'Y'-'. Iitge, S. No. 394.

5 .\ 'ill-gh Coir: Iiiige, S. No. 395.



322

1042. A High Court Judge', who is not in favour or
the codiﬁcation of the principles, has stated that as long

as the executive acts in a bona ﬁde manner, it will be
acting correctly.

1043. The Law Minister of a State? has stated that it
is not possible to state the principles, but generally the
President or the Governor should exercise the power to
grant pardon whenever there is evidence of some cir-
cumstance which could not be admissible in a court of
law or when there are some over-riding circumstances
which can outweigh the evidence on which the courts
normally act. He has added that, as the circumstances
cannot be anticipated, complete discretion should be left
to the Executive.

1044. The Law Minister of a State" has stated that the
existing provisions are adequate, but that if the penal law
is to be changed so as to reduce the incidence of the
capital punishment, then it will be proper to provide that
the sentence of death conﬁrmed by the Supreme Court
should not be interfered with except in the larger interest
of the society.

1045. A distinguished Member of the Rajya Sabhai,
while expressing the view that the principles cannot be
given off-hand, has stated that there is need for examining
the principles which should guide, and the procedure
which should be followed in, the exercise of these powers.

1046. A Member of Parliament5 has stated that this
power should be used very sparingly.

1047. A senior Advocate of the Bombay High Court"
has stated that these powers are necessary to enable the
Executive Government to take into account extra-judicial
considerations of policy and humanity. He has, however.
also stated that the Home Secretary in England is bound
by certain rules, precedents and conventions, so that there
is small scope for the free unfettered exercise of indivi-
dual will, and that some such rules or conventions are
necessary in India. He suggested that it may be useful
to establish such conventions as the President consulting
a high judicial or legal authority like the Chief Justice
of India or the Attorney General, and reports from the
original court as well as the High Court may also be
called for.

A High Court Judge, S. No. 262.
No. 313.
No. 253.
No. 245.
No. 275.
. No. 318.

"]\tlI.hUJI\7""'
r/;(/JC/DE/3_C/7



323
l048.rA District and 'Sessions Judge' has stated that
respect ior puolic sentiment and safety of the society

1 .1' '

should  'mic guiding p'i'lllClpl€3 in -.'.:e

powers.

CK. '(C19, .'

.
of tnese T1049. According to another District and Sessions Judge', when it is felt that some loss to society would be caused or the family of the accused would sulfer irrepa- rable loss or when there are circumstances invoking a high degree of sympathy, or when it is felt that the death sentence has been passed in complicated legal circum- stances but a practical view could be taken for lesser punishment, then the sentence should be commuted.
l05t». One of the District and Sessions Judges" has stated that in cases where all the three courts have con- curred in the sentence, there should be no interference.
1051. Important suggestions with reference to princi- ples have been noted above''. Certain suggestions in matters of detail with reference to procedure are contain- ed in some of the replies, which may now be summarised.
One group of suggestions consists of those replies, wherein it has been stated that the President or the Governor, etc., should refer every case to an Advisory Board or Committee.
1052. The Chief Justice of a High Court" has stated that the Working convention would be that no such re- mission, suspension or commutation of sentence can be made except with the concurrence of the Attorney Gene- ral (in the Union) or of the Advocate General (in the States). This, it is stated, may prevent misuse of the power of pardoning and reprieving conferred by law, and it may even be worthwhile to amend sections 401 and 402 of the Code of Criminal Procedure. 1898, so as to make the concurrence of the Advocate General mandatory. It has been further stated by him that the Advocate Gene- ral's statutory power under the Code of Criminal Proce- dure is recognised under section 333 of that Code; hence, by making suitable amendments to sections 401 and 402, a new authority is not introduced in the scheme.
1053. It has been stated by a High Court Judge", that the opinion of the Judge who passed the death sentence and of the Judge who conﬁrmed the death sentence in 1 S. No. 329. 2 S. No. 34,7. 3 S. No. 419. 4 Paragraphs 1027-1050, supra.
5 Chief Justice of a High Court, S. No. 317.
5 S. No. 396, replies to questions Irfa} and (5).
Procedure-
Replies regardlng.
324
appeal or at a later stag. should be invited by the execu- tive authority as in England, before the ﬁnal decision. is taken.
105-}. Another High Court Judge' has emphasised that some procedure of independent consultation would help a proper exercise of this high prerogative of mercy or clemancy in suitable cases, to aﬁord relief from undue harshness or evident mistake in the operation or enforce- ment of the criminal law; or to ameliorate the deterrent effect of a particular judgment considering all mitigating circumstances all of which could not be considered or taken into account in a court of law.
1055. Some High Court Judges? have stated that there ought to be a Board of Advisers of a high calibre to ad- vise the President or the Governor; the Board may partly consist of a retired Judge of the Supreme Court or of a High Court. Another High Court Judge" has expressed the opinion that this power should ordinarily be exercis- ed only in cases in which the court makes recommenda- tions in this behalf.
1956. The suggestion of a Member of a State Legis- lature' that the powers should be exercised by the President on the basis of the advice given by an Ex- Chiet Justice of the Supreme Court, and by the Gover- nors, on the basis of the advice given by an Ex-Chief Justice of a High Court.
1057. Certain District and Sessions Judges5 have state- ed that the approach should be judicial and objective, and that the High Court or the Supreme Court should be consulted.
1058. A District and Sessions Judge'' has suggested, that while deciding the question of exercising of such powers. proper material on the point should be collected from the District Superintendent of Police and the Dis- trict Magistrate of the district concerned, as the atrocity of the crime and the effect of remission of the sentence of death would be properly known to these officers.
1058. In one reply7, emphasis has been laid on the fact that the real agony is in the expectation of death, and it I S. No. 397.
2 Chief Iustice of a High Court, and a High Court judge, S. No. 147'. 3'.-'\ High Court Judge, 3. N0. I47.
4 S. No. 248. 5 S, Nos. 364. 366 and 372. 6 S. No. 387. 7 No. .120. under questions 11 and 12. 325
has been suggested that a mercy petition may be provid- ed ior in cacn case after the final *.'o«rdict of the court has 1b\.'\.'.l given, mid that Lllk.' atlvelse result of the mercy peti- iiori silcilrl no; be communicated to the condemned person till 8 ::'r_~w ir1_I?1ute.': beiaere the sentcnrje of dcath is carried out.
1080. In some of l'c liesl-2 it has been stated that . « . . - , 1 . .
there IS some delay in disposing of tne petitions.
1061. An eminent member of the Bar' sta'es in his reply that the President or the Governor or the State Government should act in consultation with the Supreme Court or the High Court, as the case may be.
1062. A Bar Association in a High Court' has express- ed its anxiety about the delay in arriving at the ﬁnal decision about sentences. It has 'found numerous instanc-- es where prisoners sentenced to death have been kept in the condemned cell for 2% to 3 years, before a ﬁnal deci- sion is taken either to commute the sentences or to exe- cute them. It has suggested that the judgment in a murder case must be given within a fortnirzht or three weeks, and the appeal in the High Court or in the Supreme Court and the subsequent exercise of the pre- rogative should be ﬁnished within three months.
1063. A District and Sessions Judge" has stated that the manner and processes of consideration and decision by the President, Governors and the Government in the exercise of these powers are hardly known, and publish- ed literature is not available in India. He has suggested that it would be better if research scholars deal with the subjects, and the ﬁles are made available to them.
1064. It has been suggested by a District and Sessions Judge in Gujarat5 that the pzocedure should be deﬁned by the Ministry of Law, that the remarks of the highest court which dealt with the case should be obtained and considered, and that the petitioner should be heard in person (and not through a lawyer or representative) by some authority or officer as representing the President, the Governor or the Government.
1065. One reply7 suggests the creation of an Advisory Board. selected from the judiciary. Another replyg states VI S. No. 4,34, r_eply of a Principal Judge of a City Civil Court in a Presi- dency Town.
2 A District Bar Association, S. No. 430.
3 An eminent member of the Bar (through the Bar Council of India) S. No. 161.
4 In reply to question 10, S. No. 493.
5 S. No. 487. 6 S. No. 488.
7 A Pleader, Calcutta, S. No. 128.
8 An Insoector-General of PC)liC?, S. .\To. I3I., 326 that there should be an ad hoc enquiry committee com- prising of a High Court Judge, a psychiatrist and a socia- logist, and the committee should make a case--study of the offender and extenuating circumstances, if any.
10543. Another suggestion' is to the effect that the Attorney General of India should be consulted. Yet an- other suggestion is for the constitution of a committee consisting of laymen interested in prisoners' Welfare, social welfare workers, religious leaders, and others, who can consider the humanitarian aspects of the case?
1067. It has been suggested by a Bar Association3 that the petition should be referred to the last court which i.,VA>AA'.;i..'J'CL'\1 the person concerned (with a recommendation, if any) and the court's decision should be ﬁnal, and that this should apply to imprisonment as well. A retired High Court J udgei has made an elaborate suggestion, the gist of which is as folloWs:----
(i) The High Court concerned (or the Supreme Court, if it has ﬁnally dealt with the case on merits) should be consulted before action is taken under article 72 or article 161 of the Constitution or sections 401-432 of the Code of Criminal Procedure except where the President acts on grounds of high public policy.
(ii) When the opinion of the High Court or the Supreme Court is not accepted, the order passed should state the reasons, which should be suitably publictsfed.
(iii) This would operate as a wholesome check against Government interference on political grounds.
(iv) This safeguard should be there not only in case of death sentence but also in case of life im-
prisonment.
1068. An Inspector-General of Police5 has also made an elaborate suggestion as follows:------
(i) The mercy petition should pass through the State Government with their comments on each points raised, if any, but without their recommendation for or against the said petitioner, together with other details.
(ii) There should not be any scope for simulta-
neous mercy petition both to the President and to the Governor.
I S. No. 127.
2 S. No. 118.
3 The Supreme Court Bar Association, S. No. 110.
4 A retired Judge of the Bombay High Court, S. No. 95. 5 An Inspector-General of Police, S. No. 143.
327
(iii) Once the petition has been disposed of by the President. no petition should lie to the Governor.
(iv) Priority at all levels should be given to those petitions so as to ensure their expeditious disposal by the authorities concerned.
1069. The Government' of a Union territory has sug- gested that the recommendation of the court awarding the penalty, and of the State Government, and of any social body concerned with welfare, may be taken into account.
TOPIC No. 57 (b) Principles for m<ercy----whether codiﬁcation desirable.
1070. The principles on which the prerogative of mercy Principles is exercised, may be considered. The grounds on which f°ﬁ' §1er'=Y-- commutation is granted cannot, of course, admit of iexhaus- ggﬁitatfgn °°' tive categorisation. The circumstances in which a murder des,'rab1e_ is committed vary inﬁnitely. Certain types of murder, however, are considered as deserving special scrutiny, to see whether there are any extenuating circumstances.
1071. The cases in which commutation is granted in Practice in England can be gathered from the discussion in the Report BR813114- of the Royal Commission? After stating that in cases of mercy killings, survivors of genuine suicide pacts and murder by a mother of her own child under the inﬂuence of strong emotion and distress of mind (where the case does not fall under the Infanticigde Act), the commutation is almost invariably granted, the Report of the Royal Com-
mission notes the cases which are regarded as ﬁt for exercise of the prerogative, as follows:----
'Among such cases are unpremeditated murders committed in some suddien excess of frenzy, Where the murderer has previously had no evil animus towards his victim, especially if he is weak--minded or emo- tionally unstable to an abnormal degree; munders committed under provocation which, though insuffi- cient to reduce the crime to manslaughter, may be strongly mitigating circumstances; murders committed without intent to kill, especially where they take place in the course of a quarrel; murders committed in a state of drunkenness falling short of a legal defence, especially if the murderer is a man of hitherto good character; and murders committed by two or more people with differing degrees of responsibility. No person under eighteen has been executed since 1887, or can now (since 1933) legally be sentenced to death; above that age youth, though not in itself a suﬁicient rround for reprieve in a heinous case, is always taken C I 15} Mtrnrncnt of a Union Territory, S. No. 164. 2 RC. Report, page 12, paragraph 39.
A23--l22 M of Law 328 into account with other mitigating circumstances. There is a "natural reluctance" to carry out the death sentence on a woman, and "there have been occasions on which the Home Secretary of the day has expressly had regard to the prisoner's sex in deciding to recom- mend commutation". Finally there are three rare classes of cases in which reprieves may be granted. One is where the Home Secretary feels that despite the verdict of the jury there is a "scintilla of doubt" about the prisoner's guilt. Secondly, although there have been many cases in which the sentence of death has been carried out "despite strong and persistent agitation for clemency", it has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law. Lastly, it is occasionally, though very rarely, neces- sary to commute the sentence if the physical condition of the prisoner is such as to give ground for thinking that it could not be carried out expeditiously and humanely.' 1072. In this connection, we would also like to quote the reply which Mr. Herbert Gladstone gave in the House of Commons to a question by Mr. C. B. Harmsworth (Worceshershire, DroitWich)1.
"Mr. Gladstone: It would be neither desirable nor possible to lay down hard and fast rules as to the exer- cise of the royal prerogative of mercy. Numerous- considerations--the motive, the degree of premedita- tion or deliberation, the amount of provocation, the state of mind of the prisoner, his physical condition, his character and antecedents, the recommendation or absence of recommendation from the jury, and many others--have to be taken into account in every case; and the decision depends on full review of a complex combination of circumstances; and often on' the care- ful balancing of conﬂicting considerations. As Sir William Harcourt said in this House, "The exercise of the prerogative of mercy does not depend on principles of strict law or justice, still less does it depend on sentiment in any way. It is a question of policy and judgment in each case, and in my opinion a capital execution which in its circumstances creates horror and compassion for the culprit rather than a sense of indignation at his crime is a great evil". There are, it is true, important principles which I and my advisers' I Parliamentary Debates, Fourth Series, Vol. 172, column 366 (11th April, 1907).
329
have constantly to bear in mind; but an attempt to reduce these principles to formulas and to exclude all considerations which are incapable of being formulated in precise terms would not, I believe, aid any Home Secretary in the consideration of the difficult questions which he has to decide".
1073. The discussion in the Canadian Report shows that Practice in the practice followed in Canada is not substantially differ- Canada- ent from that in England'.
1074. The Ceylon Report'-' discusses this matter inciden- Practice in tally in connection with the possibility of erroneous con- C°Y1°"' victions. It states that while in Ceylon the verdict of the jury of 7 persons divided 5 to 2 in favour of conviction is accepted, in exercise of the prerogative of mercy, the Min- ister of Justice, prior to April, 1956, took into account, as one factor on which his advice to the Governor-General would be based, the fact that the jury were divided. The Report adds that nevertheless there were cases Where the convicted murderer Was executed despite a 5 to 2 division in the jury.
1075. While dealing with the commutation of death Considera- sentences, various factors (age, sex, mental deﬁciency, ggnsbetfaign grave and sudden provocation, absence of motive and pre- mg' accoum meditation and the like) would fall to be considered.
1076. Having regard to the fact that the circumstances Rigid rule? of each case must differ from another, it would not be "°1'e d°5"' desirable to attempt to lay down any rigid and exhaustive princitlples on which the sentence of death may be com- mute .
In fact, it is the very nature of the prerogative that it is a discretionary authority?'-4. The description given by Blackstone' shows that the essential characteristic of the royal prerogative is that it is "unique and pre-eminent".
As has been pointed out", the prerogative of mercy is an executive power of a very special kind and is almost the I Canaiian Report, pages 4 and 5, paragraph IO-14.
a Report of the Commission of Inquiry on Capital Punishment (Ceylon), (scssional Paper XIV--I959) pages 53-54, paragraphs 33--34, and page 55, paragraphs 39-40- 3 Cf. Lord Parmoor in Attorney General v. DeKeyser's Royal Hotel, Ltd., (1920) A.C. 508; (1920) All E.R. Reprint 80, 105 (House of Lords).
4 See also Halsbury, 3rd Edn., Vol. 7, pages 221 22 sec.
5. B1aclrstone's Commentary Vol. 1, page 239, cited in Hood Phillips, Constitutior al and Administrative Law, (1962), pages 242 and 243.
6Keim:th Roberts Wrav, Commonwealth and Colonial Law, (I966):
page 34!.
330
only permissible, and indeed, essential, means of interven- tion by the executive in the administration by the courts of criminal law.
1077. It may be stated, in England, the Home Secretary about exer- may not be questioned about the exercise of the preroga- tive of mercy, in cases where persons have been sentenced to death, before the execution or commutation of the sentence'-'~'-3.
cise of pre-
1078. Halsbury gives these references on the subject*:----
(i) The Speaker's ruling of 10th March 1947 in 434 House of Commons, Official Report 959; and his state-
ment of 1st May, 1947 in 436 House of Commons Oﬂi- cial Report 2179 ("A Minister is responsible to the King, and not to the House, for the advice he proposes to tender to His Majesty, though he is responsible to the House for the advice once it has been tendered").
(ii) the discussion on a disallowed motion relating to the prerogative of mercy in the House on 27th January, 1953 (510 House of Commons, Official Report 845--864).
1079. The following extract from a recent study is also useful': --
"On February 7, 1961, the Speaker ruled that a question sought to be put down by Mr. Syndey Silver- man asking the Home Secretary to order an inquiry into whether a miscarriage of justice had occurred in the case of George Riley, a man convicted of capital murder, was not in order"". On February 16, 1961, a motion dissenting from the Speaker's ruling as impos- ing "new, unnecessary and undesirable limitation on the ability of Members to discharge their public duties"
was defeated7. On February 28, 1961, the Prime Min- ister, in an oral answer, declined to take steps to transfer the responsibility for advising on the exercise of the Royal Prerogative from the Home Secretary to a Ctgnmittee appointed by and responsible to Parlia- men .
I R.A. Butler (Home Secretary), in the House of Commons Debates, dated 20-9-1960.
2 Geotfery Marshall, "Parliament and the Prerogative of Mercy", (1961) Public Law, page 8.
_'-See also Halsbury, 3rd Edn., Vol.7, page 243, paragraph 27 and footnote.
4 Halsbury, 3rd Edn., Vol. 7, page 243.
5 From (1961) Public Law, pages 197---xm. 6 634 H.C. Debates 214--222.
7 634 H.C. Debates 1773-1841.
8 635 H.C. Debates I370------13/J'.
331
TOPIC NUMBER 57(c) Procedure for exercise of mercy----whether any provisions needed 1080. We may now consider whether any provisions needed as regards the procedure for the exercise of prerogative of mercy.
the 1081. In the replies received' as to the procedure to be followed by the President and the Governor in the exercise of the prerogative of mercy, one of the suggestions made is that the court should be consulted as to whether the case is a fit one for the exercise of this prerogative. In this con- nection, it may be of interest to refer to the statutory provisions on the subject in India and in other countries.
1082. So far as India is concerned, we may refer to the provisions of section 401(1) and (2) of the Code of Criminal Procedure3, whereunder, when an application is made for the suspension or remission?' of a sentence by the appro- priate Government, that Government may require the presiding Judge of the court before or by which a convic- tion was had or confirmed to state his opinion as to whe- ther the application should be granted or refused, together with his reason for such opinions and also to forward with the statement of such opinion a certiﬁed copy of the record of the trial or of such record thereof as exists.
1083. In England, there is a provision in section 19(1) of the Criminal Appeal Act', (as amended by the Adminis- tration of Justice Act, 19605), which is quoted below:----
"19. Nothing in this Act shall affect the preroga- t.\'e of mercy, but the Secretary of State on an appli- cation made to him by a person convicted on indict- ment or without any such application, may, if he thinks fit at any time, either----
(a) refer the whole case to the Court of Crimi-
nal Appeal and the case shall then be treated for all purposes as appeal to that court by the person convicted; or
(b) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case, refer that point to the Court of Criminal 1 See paragraphs 1051-1069, supra.
2'l'he Code of Criminal Procedure, 1898, section 401.
3_As to 2113 rnzariing of "remission" under section 401, see D.I.G. Police v. Ryaram, A.I.R. 1960 A.P. 259, 262, paragraphs 17-18.
I 64 The Criminal Appeal Act, 1907, (Edw. 7, c. 23), as amended in 9 o.
5 The Ailministration of Justice Act, 1960 (8 & 9 Eliz. 2 c. 65)_ are Procedure for exercise of mercy-
whether any provisions needed.
l1ﬁ Consultation with the upreme or High Cour 1 Advisory Board.
332
Appeal for their opinion thereon, and the court shall consider the point so referred and furnish the Secretary of State with their opinion therleon accordingly.".
The use to which section 19(1) of the Criminal Appeal Act has been put can be gathered from a note, which we quote'-
"There have been a number of instances of refer- ence of the whole case, including a murder case [R. v. Gray (1947) 12 Cr. App. Rep. 244; Rs. v. Field (1921) 15 Cr. App. Rep. 129]. Cases so referred are heard exactly as if they were appeals [R. v. Dickman (1910) 5 Cr. App. Rep. 135]. The object of the reference is to assist the Home Secretary in respect of the exercise of Royal Prerogative and any evidence which might achieve that object can be considered. [R. v. McGrath (1949) 2 All E.R. 4951]".
1084. It is understood that in one case heard on such a reference, Lord Goddard admitted further evidence on the merits, resulting in an acquittal at law, thus putting the matter beyond the necessity of further consideration by the Home Secretary2; Lord Hewart had a similar situa- tion in the case of R. v. Wm. Knighton in 1927 or 1928 (unreported), in which evidence of the condemned man's young sister was led which, if believed, must have resulted in an acquittal on the merits. The evidence was not believ-
ed3.
1085. Somewhat similar provisions would be found in section 596 of the Criminal Code of Canada, and section 406 of the Crimes Act, New Zealand.
We do not, however, think that any statutory provision is needed requiring the President or the Governor to con- sult the Supreme Court or the High Court. Such a provi- sion would not, strictly speaking, be i.n harmony with the essential nature of the prerogative'.
1086. We now consider the question whether there should be a Board of Advisers to advise the President or the Governor in the exercise of these powers. Various suggestions have been made as to the composition of such a Board". We are not, however, inclined to recommend any provision requiring the constitution of such Board and 1 Note in (1959), I09 Law Journal 563.
2 J.A. Wharton in a letter to the Editor, (1959), 109 L.]. 724.
3 J.A. Wharton, in a letter to the Editor, (1959) 109 L]. 724.
4 As to essential nature of the prerogative, see paragrapps Io2I---
I024, supra.
5 For a summary of replies received to question 110:), see para- graphs 1026-1069, supra.
333
consultatlon with it. Consultation with the Judges is a matter which we have dealt with elsewherel. In so far as the Board is to consist of persons other than sitting Judges, it may, in the first place, be embarrassing for the Board to re-consider and review matters already considered by the High Court or the Supreme Court. Secondly, often it may not be considered advisable, in the public interest or for reasons of State, to communicate to many persons the facts of the case and the reasons for the proposed exercise of the prerogative. In such a case, if the matter is refer- red to such an advisory Board, and a particular advice is given by the Board, it will be embarrassing both for the Board and for the President or the Governor, if a different decision is ultimately taken. What is essentially a prero- gative should not be converted into a matter on which a controversy would arise. Not much difficulty has been caused by the absence of any such provision. We do not therefore think that any new provisions are necessary.
1087. It may be noted that the Royal Commission also considered a similar suggestion, and rejected it? The Royal Commission ovserved, "The Home Secretary is now free to consult the trial Judge and anyone else he thinks ﬁt. But the exercise of the Royal Prerogative is an adminis- trative, not a judicial act".
1088. In some of the African countries, Advisory Boards have been created. We quote from a recent book3:--
"Only in Malaysia and Jamaica is the advice tendered by a body with an unofﬁcial and potentially non--political majority, in Malaysia a Pardons Board', and in Jamaica the Privy Council? In Sierra Leone the Prime Minister assumes responsibility; he is oblig- ed to consult an advisory committee of Cabinet Minis- ters in capital cases and is empowered to consult them in other cases, but he is not obliged to follow their advice". A similar pattern is followed in other consti- tutions, except in so far as the "responsibility is usually conﬁded in a Minister other than the Prime Minister 1 See paragraphs 1081-1085, supra.
2 R.C. Report, pages 209 and 210, paragraphs 6oo--6o1.
3 SA. de Smith, The New Commonwealth and its Constitutions (1964), page 146.
4 Art. 42. The members are the Federal Attorney--General, the Chief Minister of the State concerned and three other persons who are not to be members of a legislature; the State Ruler presides.
5 Sections 90-91. The Governor-General must act on the_Privy Coun-
cil's recommendation in all cases. The Council consists of six members, appointed and removable by the Governor--General after consultation with, but not necessarily on. the advice of the Prime Minister; at least two of them must be present or past holders of public ofﬁces (sections 82 to 89). It would be more accurate, therefore, to say that the Privy Council has potentially an unoﬂicial majority.
6 Sections 70 to 72.
Publication of reasons.
334
and the advisory Committee will include the Attorney- General and will exclude other Ministers and politi- cians. In Nigeria and Uganda the unofficial members of the advisory committee hold oﬂ'-ice for a ﬁxed term and are removable only for inability or misbehaviour; in Nigeria one of the members must be a medical practitioner". Tanganyika has retained an advisory committee on what the republican Constitution still calls the "prerogative" of mercy"?
The composition of the Advisory Board or similar bodies. in some of the countries is dealt with in another recent pub1ication3.
1089. The provision in the Ceylon Constitution'-5 is also of interest.
"We do hereby direct and enjoin that the Governor- General in the exercise of the powers conferred upon him by article 10 of the Letters Patent shall not grant a pardon, respite or remission to any offender without ﬁrst receiving, in every case, the advice of one of his Ministers. Where any offender shall have been condemned to suffer death by the sentence of any court, the Governor-General shall cause a report to be made to him by the Judge who tried the case; and he shall forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereon, the report shall be sent, together with the Attorney-General's advice, to the Minister Whose function it is to advise the Governor-General on the exercise of the said powers.".
1030. W e have carefully examined the question whether the reasons for granting commutation of sentence in capital cases should be required to be published. We appreciate the argument that when a sentence of death is commuted to a lesser one, as a result of the exercise of this preroga- tive, it may be regarded by many as an interference with or reversal of the decision of the highest court in the country or in the State, and that such interference or reversal must be based on strong reasons.
The suggestion for publication of reasons, which is some- times made, may be an expression of this feeling. We are, however, afraid that the adoption of such a practice may do more harm than good. It would start a controversy in I Nigeria, Federal Constitution, sections 94 to 96; Uganda, secti crs84 to 86.
2 Article 19, Presidential Aﬂairs Act, 1962 (C.A. Act, No. 4). In Ghana (see article 48) the President may seek advice from the Supreme Court (Courts Act, 1960 C.A., s. 24).
3 Kenneth Roberts-Wray, Commonwealth and Colonial Law, (1966), pages 345, et seq.
4 Paragraph 3, Royal Instructions, 1947; Jennings, The Constitution of Ceylon. (1953), page 251- 5 See also sections 328 and 329, Ceylon Criminal Procedure Code.
335
each' case whether the decision granting or rejecting me petition tor commutation was justified, and wnether mg President or the Governor should or should not have agreed with the final verdict of the court in the particular Case, Moreover, adopting the exposition of the subject made by Sir John Anderson in his evidence before the Royal Com- mission,' we may point out, iirst, that it would be extremely difficult to give, in what would necessarily have to be a comparatively short statement, "an adequate impression of the cumulative effect of the considerations which the Home Secretary has to take into account"; and secondly, that there are, not infrequently, cases where the reasons which rightly weigh with the Home Secretary, involve grave reliections, amounting to accusations of criminal "conduct, against third parties", where an adequate, well- balanced and truthful statement of reasons could not be made without bringing into the light of the day the conduct of people not directly concerned. We apprehend that there must be many other situations wherein an explanation of the reasons, 1;' given in the public, might lead to contro- versies which may be prolonged and wasteful, and may injure not only the persons involved but also bring the highest dignitary into an arena where he should not be brought.
1091. We have also considered the suggestion that com~ mutation should not be granted unless it is recommended by the court. So far as commutation from the sentence of death to one of imprisonment for life is concerned, we believe that cases of such recommendation by the court would be infrequent, as courts themselves have the power to substitute the lesser sentence in view of the discretion enjoyed by them in the matter. So far as commutation of a sentence of life imprisonment to one of imprisonment for a speciﬁed period is concerned, a recommendation of the court would certainly be of the greatest value, and, where such a recommendation is madez, it will always be taken into account. We do not, however, think that the making of such a. recommendation should be made a condition pre- cedent to the exercise of the power of commutation. Facts not known at the time of trial, or events which took place subsequently, would be ruled out from the consideration of those concerned, if such a condition precedent is laid down.
1092. One of the replies received on the subject3 makes the suggestion, that the Attorney-General should be con- sulted in these matters. The power to consult him is already there under the Constitution', whereunder it is "the r See R.C. Report, page zrr, paragraph 603.
2 See Analysis of the Case Law, Cases No. 4 (Footnotes), 33, 34, 36, 46, 47; 52: 53) 57 and 93- 3 See paragraph r066, supra.
4 Artinlc 76(2) of the Constitution.
Recommen.
dation ofthc court when ther to a pre-
requisite.
lu;
Consult ation with the Attorney-
General.
336
duty' Of the Attorney-General to give advice to the Gov. ernment Of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President". It IS unnecessary to go beyond that.
CHAPTER XV EXECUTION OF SENTENCES TOPIC NUMBER 58(a) Method Of execution of death sentence figﬁgd «''Of 1093. We now come to the question of the method of '0'f deat'§"sen_ €X€Cut10n of the. sentence of death. At present, the sen-
¢em_.e_ tence of death 1S carried out by hanging. The Code of Criminal Procedure, 1898, requires' that when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
1094. In the great majority of countries, there are three methods of carrying out the death sentence, namely, hang- ing. electric chair and gas-chamber. Hanging is used in the United Kingdom, certain countries on the Continent, Canada, Australia and generally throughout the Common- wealth, six States of the United States of America and some countries in Asia?
1095. Electrocution is used in 24 States of the United States of America, and in Philippines3 and in Cuba."
1096. Gas--chamber is used to carry out the sentence of death in eleven States of the United States of America5. In Spain, strangulation is used".
1097. The modes of execution in the various states of the United States of America as in 1960 were as follows":--- By electrocution----A1abama, Arkansas, Connecticut, Florida, Georgia, Illionois, Indiana, Kentucky, Loui. siana, Massachusetts, Nebraska, New Jersey, New York, Ohio. Pennsylvania, South Carolina. South Dakota, Tennessee, Texas, Vermont, Virginia (21).
1 Section 368(1), Code of Criminal Procedure, 1898.
2 For details, see U.N. Publication, Capital Punishment (1962), page 23, paragraph 59.
3 In Philippines, provision is made for hanging if the necessary equip- ment for electrocution is not available.
4 See U.N. Publication, Capital Punishment (1962), page 23, paragraph
61. 5 See _U.N. Publication, CapitalPunishment (1962), page 23, para- graph 62.
6 See U.N. Publication, Capital Punishment (1962), page 23, para- graph 62.
7 See U.S. News a.nd.World Report, March 7, 1960, page 52, repro-
-.'\uced in Me Clellan, Capital Punishment, (1961), page II.
337
By lethal gas--Arizona, California, Colorado, Mary- land, Mississippi, Missouri, Nevada, New Mexico, North Carolina, Oklahoma (using electrocution until gas chamber is completed), Oregon, Wyoming (12).
By ha'nging----Idaho, Iowa, Kansas, Montana, New Hampshire, Washington. (6).
By Hanging or shooting (condemned man's choice)
----Utah.
Since 1960, three more States appear to have adopted electrocution'. Decapitation seems to be the method in force in France, and in some other countries?-3. Execution by ﬁring squad is practised by some countries, important amongst which are Morocco, the Central African Republic, Chile, Thailand, Indonesia, Cambodia, Greece, U.S.S.R., and Yugoslavia; and in Utah (U.S.A.) the person sentenced to death has the choice---between hanging and ﬁring squad*.
(In Canada, the Attorney-General or the Governor can, it appears, order execution by the ﬁring squad in cases of treason or crimes against national defence) 5.
Though hanging still remains the most prevalent method, it must be noted that the course of events in other countries shows that it is being slowly abandoned. Thus, while in 1930, 17 States of the United States of America used to employ it, only six States have now retained it. Again, while it was in force in Yugoslavia before 1950, it was replaced by ﬁring squad in 1950.
1098. In England, the Royal Commission went into this question in great detail. The Commission stressed the criteria which had to be taken into account (in deciding which method should be adopted), namely, humanity, cer- tainty and decency". Under "humanity", further, there were two essential requirements, namely, ﬁrst, that the preliminaries to the act of execution should be as quick and as simple as possible and free from anything that un- necessarily sharpens the poignancy of the apprehension of the person; and secondly, that the act of execution should produce immediate unconsciousness, passing quickly into deaths. After studying the actual time taken at various I UN. Publication, Capital Punishment, (1962), page 23, paragraph 61 gives the number as 24.
2-3 See U.\T. Publication, Capital Punishment (1962), page 23, paragraph 60.
4 Sze U.~.\I. Publicaiion, Capital Punishment (1962), page 23, paragraphs 6o~--62.
5 See U.?\I. Publication, Capital Punishment (1962), page 23, para- graph 59.
6 R. C. Report, pages 7.46 to 260, and conclusion at page 261, paragraph 749.
7 R.C. Report, page 248, paragraph 707. 8 R.C. Report, page 253, paragraph 724.
338
places in carrying out the process of hanging and other methods of execution, the Royal Commission came to the conclusion that so far as experience in the United King~ dom went, hanging took less time than the time taken elsewhere in other methods and caused immediate uncon- sciousness, and was followed quickly by death. The Royal Commission had not full evidence about electrocution and lethal gas, but there was nothing in the evidence placed before it to justify the conclusion that either of these two methods was less humane than hanging, in terms of the speed and painlessness with which unconsciousness is induced. As regards "certainty", the Royal Commission stated that the equipment required for hanging was Simpler than that required for electrocution or lethal gas, and no mishaps had taken place in England during the last 50 years. Lastly, regarding "decency", the Commission stated that because of the distortion caused to the body, the pain caused to the relatives on seeing it, would be more severe in the case of hanging than that caused by othex methods. But, while hanging was tainted by the memory of its barbarous history, "gassing" was tainted by more re- cent but not less barbarous associations} 1099. We may now refer to the discussion in the Cana- dian Report. The Canadian Committee" considered the merits of four different methods of execution, namely, hanging, electrocution, gas-chamber and lethal injection. The last mentioned method. which was stated to ensure instantaneous and painless death, could only be accom- plished by intravenous injection, for which skill was ze- quirecl, and the Committee considered that it would not be reasonable to expect a medical doctor to perform a task so repugnant to the traditions of the medical profession. Moreover, an intravenous injection could not be administer- ed unless the condemned person was entirely acquiescent. Hence it was rejected. As regards hanging, the Committee noted that hangings in Canada were not conducted with the same degree of precision as in the United Kingdom, and that sometimes there was no way of knowing how death was caused and whether the loss of consciousness had been instantaneous. Moreover, the Committee sensed from the evidence given before it that hanging was regarded generally as an obsolete, if not a barbaric method. It, therefore, proceeded to consider electrocution and gas~ chamber. In its opinion, which was based on the evidence of independent medical experts, electrocution was the most satisfactory method, and the Committee recommended that the law be amended to replace hanging by electrocution. This was based on the premise that modern methods of electrocution could produce instantaneous unconsciousness and painless death, without the evil effects traditionally I R.C. Report, page 255, paragraph 732. 2 Canadian Report, pages 21 and 22, paragraphs 89-~94.
339
associated with the electric chair (like burning and muti- lation). However, if further investigation created doubt as to possibility of employing electrocution, then, the Com- mittee considered, it would be preferable to substitute the gas--chamber.
1100. The relevant section of the Criminal Code of Canada is1 section 642. which provides that the sentence of death should direct that the person sentenced should be hanged by the neck until he is dead. The section does not appear to have been amended to carry out the recommenda- tion of the Committee."
Torre NUMBER 58(b) Replies to question 12 1161. Qitiestioii No, 12 follows: --« -
"At present, the sentence of death is carried out by hanging. Have you any suggestions to make with respect to the manner in which a sentence of death may be carried out?"
in our Questionnaire was as Divergent views have been expressed as to the method of execution. A broad classification of these views is pre- sented below.
1102. (1) The ﬁrst group comprises those who would like to replace hanging by electrocution.
A large of group3--'?.
number replies belong to this 1 Section 642, Criminal Code of Canada.
2 Certain other recommendations of the Committee have been carried out by the amendments made in 1961 in the Criminal Code of Canada.
3 A High Court,S. No. 167; Chief Justice of a High Court and 3 Judge of that High Court;S. No. 130 ;Maiority of the Judges of a High Court, S. No. 187 4 A State; S. No. S. No. 164 5 A State Law Commission (Electrocution or gas chamber), S. No.
101. 6 A Deputy Minister in the Union, S. No. 210 ; Member oi the Raiya Sabha, S. No. 2075, Revenue Minister ofa State, S. No. 216; M.L.As.,S. Nos. 102 and 213.
7 Senior Deputy Advocate-General of a State, S. No. 146; Inspector-
General of Police in a State, S. No. 131 8 S. No. 139, S. No. 122, S. No. 117.
9 Bar Councils, S. Nos. 159, 115 and 116. to A District Bar Association, S. 'No. 125. 1 1 An eminent member of the Bar,S. No. Co uncil, S. No.1o4.
12 o_\ cross-section of Delhi c1tizens(E-lin.i1s.tan Ti.=n:s, dated 3-4--I',' 3) . No. 89.
143; Government of a Union territory 1 ) ,'A Member of a B 2.1 Method of execution.
340
1103. The Chief Justice of a High Court1 is in favour of electrocution, provided facilities can be provided.
1104. Some High Court Judges are in favour of electro- cution2.
1105. A High Court Judge3 has stated that modern methods, such as electrocution, should be followed.
1106. The Chief Minister of a State' is in favour of elec- trocution. So also is the Home Minister of a State5. A Minister of another State is in favour of electrocution".
1107. The Law Minister of a State7 is of the View that the sentence of death may be carried out by some method which is more instantaneous, like electrocution, than by hanging whenever possible.
1108. The Administration of a Union territory'? is of the view that electrocution may be a better way.
1109. A Member of Parliament9 has suggested that elec- trocution may take time, but a beginning may be made with one chair in each State at least in bigger States. Another Member of Parliament is in favour of electrocution".
1110. Some Members of State Legislatures are in favour of electrocution".
1111. The Principal Judge of a City Civil Court'? is of the view that hanging is rather crude, and electrocution should be substituted.
1112. Certain City Civil Court Judges have suggested electrocution".
1113. A Judge of City Civil Court has suggested" that the condemned person be given some drug to make him unconscious, and then the sentence can be executed by electrocution.
No. 316.
No. 394.
No. 262.
. No. 255.
No. 258.
No. 221.
No. 313.
No. 303.
No. 273.
No. 224.
. Nos. 225, 243, 244.
. No. 434.
. Nos. 376, 377, 379 and 381.
. No. 378.
D-'F4 ~o\ooo\1c\m.c.wN>< w</=w.</>5/Js/><ns/=v>w</=5/25/» D-I N ...»-4 .;:.UJ Cl) 341 1114. A Judicial Ofﬁcers' Association1 has suggested that the gas-chamber or electric chair may be introduced.
1115. Certain District and Session Judges favour electro- cution2.
1116. An Advocateg has stated, that with the spread of education, youngmen are getting "tender in body, mind and habits", and that it is quite possible that hangmen may not be available; he suggests electrocution are more scientiﬁc and less expensive than hanging.
1117. A District and Sessions Judge4 has suggested that it is necessary to substitute an electric chair in place of hanging, and if that is not possible a ﬁring squad may be resorted to.
1118. Several District and Sessions Judges" are of the view that electrocution may be considered. One Sessions Judge" has suggested that the electric chair may be pro- vided, but the choice should rest with the convict whether he will prefer hanging to electrocution.
1119. The substitution of the electric chair has been suggested by a Bar Association7.
1120. The reasons given are that hanging is crude and' cruel, While electrocution is instantaneous and humane.
One of the replies quotess, from the Royal Commissioner's:
Report9, observations to the effect that hanging was in- vented more for its advertisement value than as a more effective way of taking life. and suggests that it should be replaced by electrocution, which is used in several States of the U.S.A. and in the District of Columbia. It is stated"
that (in electrocution) a current of 8 to 10 amperes is pass- ed through the body, and unconsciousness results in less than 240th of a second, before the nervous system of the body can record any sensation of pain.
1121. It may be stated here that some of the replies which suggest electrocution in place of hanging do not rule out any other painless method.
I S. No. 374.
2 District and Sessions Judges, S. Nos. 384, 386, 389, 415, 418;
423, 427, 431, 433, 437, 442,444, 459, 473,- 478, 521, 522, 524 and 553.
3 An Advocate. S. No. 474.
4 S. No. 330.
5 S. Nas. 347, 343. 349. 355. 358, 360. 362. 364, 370, 372 and 375- 6 S. No. 353. 7 S. No. 220. 8 S. No. 122. R.C. Report, page 246, paragraph 701.
342
1122. Somenof the replies suggest substitution of the gas--r:hamber.1-----'-4, 1123. According to the Law Minister of a State5, while hanging 13 La most barbarous way of executing a death sen- Teljce. e1ECLI'0Cul10I'1 is no less revolting to human con- SCIEHCE. He suggests gas--chamber.
1124. Judicial Officers' Association" has suggested electrocution or gas chamber, A District and Sessions Judge' 15 of the same view.
Tl'?..i. Sflllle of the replies suggest lethal injection. Their iiuniber is not very large.
1126. It has also been suggested8 that some kind of euthanasia on the advice of medical doctors be adopted. Electrocution O1' poisoning, as far as possible in a manner Which the victim may not be able to anticipate, has been suggested by a District and Sessions Judge".
1127. A group of replies"-13, While not committing themselves to any particular method, make a general sug~ gestion that hanging should be replaced by a less painful and more humane method. Most of these replies would like the matter to be decided after ascertaining medical and other expert opinion.
1128. A State Government" has suggested that the mode of carrying out the death sentence should be carefully exa- mined by doctors or experts in this direction, and that method which is least inhuman should be adopted.
1 A State Government, S. No. 129.
2 A State Law Commission, (Electrocution or gas chamber), S.No. nor.
3 Bharat Sewak Samaj, New Delhi, S. No. I45 (electrocution or gas-chamber).
4 Law Secretary to a State Government, S. No. 162.
5 S. No. 253. 6 .3 No. 374. 7 S. No. 370.
8 S. No. 552 (Nleeting held by Indian Conference of Social Work, West Bengal Branch on 29th April, 1965 in Calcutta).
9 S. No. 490.
ID A S.a:c Government, S. No. 182 (Hanging should be replaced by ::J€CTl'OCullO1'. or gas-chamber or other less pa-nful mcihcd. l': is not rvssible u say whicli would be the least painful method).
ll The Indian Federation of \X'cmcn Lavvyeis, S. No. 121.
12 S. No. 118.
13 A Member, Bar Council of Madras, S. No. I04.
'14 S. No. 574.
343
11:29. Another State Government1 is of the View that there is need to have some more humane and instantaneous process than hanging, where possible.
1130. A District and Sessions Judge9 has suggested that the question should be decided on the advice of experts and Such manner of carrying out the death sentence should be adopted which involves no or minimum possible physical, nervous and psychological pain and torture.
1131. Some of the replies3 merely state that the matter relates to medical opinion, and that' death sentence should be carried out in a way least painful.
1132. Some replies are in favour of the retention of hang-
ing'-"-"--7. Some of these replies point out, that hanging.
is quick. 'has no complications and is not more painful than any other method. A few of the replies belonging to this group also emphasise that the deterrent effect of capital punishment could be achieved only by hanging. It is also stated' that the really agonising part of death sentence is the knowledge that one is going to die, and that there is not much to choose as to the manner in which execution is Carried out.
1133. Two other State Governme11ts9 would like to re-
tain hanging.
1134. The Chief Justice of a High Court" has expressed the view that, according to the available information, the sentence of death carried out by hanging is practically instantaneous, and it is not shown that any other method of execution prevailing in any other country is more humane.
1135. In the opinion of a High Court Judge", the mode of carrying out the sentence of death (by hanging) is, in the light of the present knowledge of science, the best possible and the most humane method, and no other known method is as quick, efficient or painless as the present one.
1 S. No. 580. 2 S. No. 487. _.
3 Two High Court Judges, S. No. 105.
4 Two High Court Judges, S. No. 97.
5 A State Government, S. No. 154; Home Secretary to a State Govern- ment, S. No. 13; Administration of a Union Territory, S. No. I06.
6 Bar Association of India, S. No. 183.
7 Supreme Court Bar Association, S. No. no; A Reader in Criminal Law, S. No. 107.
S Aiministration of a Union Territory, 8. No. 106.
9 State Governments, S. Nos. 261 and 3m 10 S. No. 399. n S. No. 396. I _ 24-122 Law. ' ""' ' '--
344
1136. A High Court Judge' has stated that when all is;
said and done, hanging does not seem to be in any manner more distressingthan the guillotine or the electric chair, and therefore, this form of execution may continue.
1137. Several High Court Judges' are in favour of retaining hanging.
1138. A distinguished member of the Rajya Sabha-1,. While not _suggesting a particular method, has emphasized that if tapital punishment must remain on the statute book. it must be mercifully given in the quickest and least pain---- ful form.
1139. According to a senior Advocate' of the Bombay' High Court, -3 certain degree of terror is inevitable and indispensable in "the grim paraphernalia of judicial execu- tion", and as far as his knowledge goes, according to ex pert medical opinion. death by regulated drop from the gibbet is as instantaneous as that by electric shock.
1140. A member of a State Legislature' (who is also am Advocate) has stated that he had himself seen in a Central jail the arrangements for hanging, and he was told that if hanging is properly executed, there is probably only a few moments' difficulty. ' 1141. Retention of hanging has been favoured in many other replies"--7.
1142. The majority of Presidency Magistrates in a Pre« sidency Town" are in favour of retaining hanging, because;
"apart from the stigma involved in thegidea of 'hanging:
acting as a deterrent, it is also said to be the quickest means: of ending life."
1143. According to a gentleman'? who is a social worker and a State Jail Visitor, the present position may continue. since even in modern techniques the preliminary preparae tions do not in any way mitigate the mental agony.
1144. Apart from the actual method of execution. sug--- gestions have been received on a few other points pertain» ing to the mode of execution.
1 S. No. 251. 2 S. No. 262. 3 S. No. 245.
.4 S. No. 318.
5 S. No. 226.
6 A District and Sessions Judge, S. No. 526.
7 A Bar Association in a High Court, S. No. 493.
8 S. No. 549. 9 S. No. 357. 345
1145. Thus. it has been stated that the dread of the sen- tence of death should be given wide publicity, to minimise crimes.' . One reply" has suggested pre-publication of execution. 1 1146. It has been suggested"-* that the law should pro- vide for an autopsy to be performed immediately after the execution, to provide complete assurance.
1147. It is stated" that the sentence should be executed publicly, to give a lesson to the public in general.
1148. It has been suggested" that execution should be given wide publicity.
TOPIC NUMBER 58(c) Conclusion as to method of execution 1149. We ﬁnd that there is a considerable body of opi- nion which would like hanging to be replaced by some thing more humane and more painless. Quite a number of replies'received to our questionnaire on the subject are in favour of substitution of electrocution7 for hanging, on the ground that the former is instantaneous and humane, while the latter is crude and cruel. The gas-chamber has been suggested in some other replies," while a few suggest lethal injection or enthanasia.° On the other hand, some of the replies are in favour oi the retention of hanging", and a few belonging to this group are of the view that the deterrent effect of the capital punishment could be achiev- ed only by hanging.
1150. The matter is, to a certain extent, one of medical opinion. That a method which is certain, humane, quick and decent should be adopted, is the general view, with which few can quarrel. It is true that the really agonizing part is the anticipation of impending death. But society owes it to itself that the agony at the exact point of execu- tion be kept to the minimum. It is, however. difﬁcult to express an opinion positively as to which of the three methods satisﬁed these tests most, particularly when the 1 An Inspector-General of Prisons, S. No. 166. 2 A Disrict Bar Association, 8. No. 218.
3 S. No. 122.
4 See, in this connection, (i) Section 5, Capital Punishment Amendment Act, 1868; (ii) R.C. Report, page 250, paragraph 714.
5 An M.L.A., Lucknow, S. No. 102.
6 A Bar Council, 8. No. 116.
7 See paragraphs 1102-1121. supra.
8 Paragraphs 1122-1124, supra.
9 Paragraphs 1125-1126, supra.
10 Plngraphs 1132-1143, supra.
Conclusion as to method of execution.
Execution in public, and publicity to be given to execution, 346 two other methods are still untried. We are not, at pre- sent, in a position to come to 0. firm conclusion on this point. Progress in the science of anaesthetics and_ further study of the various methods, as well as the experience gathered in other countries and development 'and reﬁne- ment of the existing methods, would perhaps, in future, furnish a firm basis for conclusion on this controversial subject.
1151. We do not therefore recommend a change in the law on this point. We should, however, state here that we do not subscribe to the View that the substitution of any other method will reduce the deterrent effect of the penalty of death.
TOPIC NUMBER 58(d) Execution in public, and publicity to be given to execution.
1152. We have considered the question whether execu- tions should he held in publicl. This was the practice in England until it was altered in 1868. There were several unsatisfactory features associated with execution in pub- lic, which led to its abolition in England? .
Disorderly behaviour of the public, attempts to" inter- fere with the execution, and unhealthy expression of a feeling of rejoicing, were the principal evils which were associated with this practice. Instead of enhancing the deterrent inﬂuence of the death penalty----which was their main supposed justiﬁcation3--they became the parent, and not the destroyer, of crime.
1153. We think that an execution in public would be repulsive, and that is a suﬁﬁent argument against its introduction in this country. or do we recommend; the giving of any publicity before or after the event to an execution. There are certain provisions on the svibjept in Englandi regarding the afﬁxation of notices, etc. on the prison gate of impending execution, and of execution hav- ing taken place. The Royal C.o_mmission5 considered these provisions, and recommended-that while public notiﬁca- tion before execution should continue, the pasting of notices on the prison gate was unnecessary and should be 1 Replies suggesting public executions are summarised in parégraph I145, supra. ' 2 For a description of the various unsatisfactory features, see Radzino- wicz, History of England Cniminai Law -(1948) Vol. 1, pages 171 to 178, 201 to 202. 211 to 212, 411, 465 and 466. . ' 3 Report of the Select Committee on Capital Punishment, page 15, para- graph 1, cited in Radzinowicz, History of English Criminal Law (1948), Vol. 1, page 165.
4 Sections 4, 6 and 10, Capital Punishment Amendment Act, 1868 (31 82 32 Vict. c. 24).
5 R.C. Report, pages 212 and 273, paragraphs 786-789.
347
replaced by the issue of Press notice, before and after execution of the date ﬁxed for execution and of the exe- cution having taken place respectively.
The announcement of execution dates in England now governed by the Homicide Actl.
is In a reply to a question, the Home Secretary stated2 that every execution date fixed since the Homicide Act received the Royal assent had been announced by means of a Press notice issued by the Home Ofﬁce, and the past- ing of notices outside the prisons had been discontinued.
We do not, however, consider any such provisions to be necessary in lndia.
CHAPTER XVI MISCELLANEOUS TOPIC NUMBER 59 Other points made in thle replies to Questionnaire 1154. Besides replies to the speciﬁc questions in the Questionnaire, some of the replies express views on other matters arising in connection with capital punishment.
1155. Thus, one suggestion is that of a State Law Com- mission3 to the effect that the question of reetitution to the victims of crime should receive attention along with that of abolition. The restitution, it is suggested, may be from the property of the accused, or from the State funds. This question, however, does not seem to be vitally con- nected with the abolition or retention of capital punish-
~ ment as such. Whether or not capital punishment is re-
tained, a provision for such restitution can be considered independently. The question is not conﬁned to capital offenders; the commission of a crime may cause damage justifying restitution, even where the crime is not a capi- tal one. Certain provisions for restitution are contained in the Code of Criminal Procedure, 18984. The matter is one of policy, not arising outof abolition.
1156. A suggestion5 for rehabilitation of the families of criminals condemned to death has been received. It is stated that this is essential, lest a murderer's children should themselves become delinquents.
I Section II, Homicide Act, 1957.
2 House of Commons, Debates, April 8, 1957. 3 A Stale Law Commission, S. No. 101.
4 Section 545, Code of Criminal Procedure, 1896.
5 Opinion of a medical man, quoted in the "Hindustan Times"dated the 3rd April, 1963, S. No. 29.
General sug-
gestions.
made in the replies.
Restitution Intervals to be allowed between death sen-
tence and execution.
348
1157. The question' of engagement of counsel to help the court in criminal cases has been raised. This is a matter which is usually dealt with the rules made for cri- minal courts. We have dealt with the matter separate1y2.
1158. A suggestion has been made' that, on conviction for murder, the property of the person convicted should vest in the Collector, and should be disposed of in favour of the heirs of the person murdered. It is stated that this will act as a great deterrent. Present provisions for ﬁne are, it is stated, not adequate, because a ﬁne is not im- posed when the sentence of death or imprisonment of life is awarded. In this connection_ it may be noted that sections 61 and 62 of the Indian Penal Code contained .
limited provisions for forfeiture, but these were repealed by Act 16 of 1921.
TOPIC NUMBER 60 Interval to be «allowed between death sentence and execution.
1159. The question--how much interval should be allow- ed between the pronouncement of the death sentence and the actual execution--may be considered'. Usually, on receipt of conﬁrmation by the High Court of a capital sentence, the Court of Session speciﬁes in the warrant, addressed. to the jailor, that the execution is not to be carried out until a day therein named. Thus, according to the instructions issued in the erstwhile State of Bombay', the Court of Session has to ﬁx the period, between the date of the receipt by it of the order conﬁrming the sen- tence of death, and the date of the execution, as from 21 to 28 days.
1160. The matter was considered by the Royal Com- mission". In England, the date of execution is ﬁxed by the Sheriff for a day (other than Monday) in the week fol- lowing the third Sunday after the day on which the sen- tence is passed. If there is an appeal and it is unsuccess- ful, the Sheriﬁ appoints a new date of execution, which is so ﬁxed as to allow a period of not less than 14 and not more than 18 clear days to elapse between the determina. tion of the appeal and the date of execution. In Scotland, the date and place of executiqn are appointed by vthe Court while passing the sentence of death. Details of the Scotish provision need not detain us here. The_ Royal I A Plead-e--r (Legal aid and advice Service), Madras, S. 'No. 105. 2 See paragraphs 1166-1175 infra.
3 A District and Sessions Judge in Gujarat, S. No. 212. .
4 At present, there are no statutory provisions on the subject, and the matter seems to be governed by Criminal Rules.
5 See Criminal Manual issued by the High Court of Bombay (I948), paragraph 148.
6 KC. Report, paragraphs 752 and 758.
349
Commission suggested certain gprovision, but no change in this was concerned.
the question whe the sentence of d order to shorten changes in the Scotish respect so far as England The Commission speciﬁcally considered ther the length of the period between eath and execution should be reduced in the period of strain on the prisoner and those about him. But the Commission felt that this those about him. But the Commission felt, that this might amount to running the risk of handicapping the prisoner and his advisers in arranging for an appeal and bringing forward information that might justify a re- prieve. It also pointed out that the Secretary of the State should have enough time to make necessary inquiries before deciding whether the sentence should be carried out.
1161. In practice, the interval between the conﬁrma- tion of the sentence by the High Court and the actual carrying out of the sentence may be much longer than that contemplated in the rules, because of an appeal or a petition for mercyl. The question is linked up with the general question of speedy disposal of criminal appeals' 'though. of course, in the case of a capital crime, lapse of 'long time is naturally undesirable, because the convicted man "dies a thousand deaths".
1162. We do not suggest any statutory provision on the ssubject in this Report.
TOPIC NUMBER 61 Conduct of prisoners after release, and rules regarding remission.
1163. The after-care of prisoners, sentenced to impri- C9"(')lI'1'e°:s °f*' sonment for life and released from prison, is a subject Parﬁtser release which requires separate study, and we do not propose to deal with the whole subject". As has been observed in the 'Report of a Committee that dealt with the subject3,---
"The after-care of prisoners refers to a set of ser- vices and programmes that are organised for the care; supervision and guidance of the prisoner and also to the various activities that are directed towards his acceptance by the family and the community.".
I For a study of the position in the United States and Canada, see the article "Time-lapse between sentence and execution----U.S.A. and Canada compared" in (1962) American Bar Association Journal page 1043.
2 The position in England is dealt with in R.C. Report, pages 236 to 239, paragraphs 672-680.
For ﬁgures, see R.C. Report, page 486, Appendix 15 and also page 229,paragraph 651, end.
3 Government of Indi a, Central Social Welfare Board, Report of the Ad\'isory Committee on After-cure Programmes (1955), Vol. I, page 214.
Rules regardin g remission .
Legal aid (0 DCISOIIS concerned in capital cases.
350
But one point of some importance deserves to be noted. A prisoner sentenced to imprisonment for lifel, for a capi- . tal offence may, after his release from the prison, commit again a capital crime or a crime involving violence. The .ﬁgUI'€S of such "recidivism" would be of interest in assessing how far the sentence of imprisonment has work- ed as a deterrent. We recommend that these ﬁgures be published and made available in a convenient form, or included in the official publication "Crime in India" which is brought out annually, as the ﬁgures would prove to be very useful.
1164. Where a person is sentenced to imprisonment for life, then the detailed rules as to the periods for which he earns remission are laid down in the Jail Manual of each State". These comprise rules made under the Prisons Act,. 1894", and administrative instructions. But the legal sanc- tion for the remission has to be issued in the form of an order under section 401 of the Code of Criminal Proce- dure, 1898, as has been made clear by a decision of the- Supreme Court'.
1165. It is unnecessary to consider here the question whether any amendments are needed to the rules regard- ing remission of life sentences of imprisonment.
TOPIC NUMBER 62 Legal aid to persons concerned in capital cases.
1166. We may now consider the question of legal aid to persons accused of capital offences'. 'In all States of India, provision is made for the employment of counsel in the Court of Session and in the High Court for the defence of persons accused of offences punishable with death". By way of example, we may refer to the rules issued in the State of Bombay7. The salient features of the Bombay rules are as follows:--
1. In all cases committed for trial in a criminal sessions of the High Court or in the Court of Session, I As to English law, relating to imprisonment for life, see---
(i) sectio)n 57, Criminal Justice Act, 1948 (II & 12 Geo. 6, c. 58 '
(ii) section 27, Prisons Act, 1952 (I5 & 16 Geo. 6, c. 52);
(iii) section 20, Criminal Justice Administration Act, 1961 (9 & IO Eliz. 2, c. 39) (for persons other than those sentenced to im-
prisonment for life). . _ 2 As to England, see Royal C_omm1ssion's Report, pages 226, et seq. and page 316. ' 3 The Prisons Act, 1894 (9 of 1894).
4 G. V. Godse v. The State, A.I.R. 1961 S.C. 6oo, 603, paragraph 7.
5 The whole question of legal aid has been examined in the Fourteenth Report of the Law Commission, Vol. 1, pages 587 to 599, particularly para- STRP 17- 6 See Fourteenth Report, Vol. 1, page 593, middle, and page 615, para- graph 1.
7 Criminal Manual issued by the High Court of Bombay, (1948),- page 41, paragraph 75, and amendments of nth January, 1949 ' and 6th July, 1954.
351
and in conﬁrmation cases, references from the verdict. of the jury, appeals from acquittals and enhancement proceedings in revision, in which any person is ézable to be sentenced to death, the accused shall be inform-A ed by the committing magistrate at the time of com» mittal, or if the accused has already been tried by the court, by the trial court, that unless he intends to make his own arrangement for legal assistance, the higher court will engage a pleader at Government expense to appear before it on his behalf.
2. If he so desires, a pleader shall be so engaged,
3. The fees prescribed by the relevant rules shall be paid to the pleader so engaged.
4. The pleader is appointed in sufficient time to» enable him to take copies of the depositions and other necessary papers, which are furnished free of cost before commencement of the trial. He is also allowed to make copies of these papers during the trial, with- out fees.
5. Copies required by the pleader for defence are prepared by the copyist in the establishment of the Public Prosecutor of the District, who may, if necessary, even employ an extra copyist for the pur- pose.
6. Fees chargeable under the Court Fees Act on the copies have been remitted.
1167. The subject has engaged attention in detail in U.S.A. For the purposes of this topic a detailed consi- deration of the position in the United States of America regarding counsel in criminal cases is unnecessary". There are provisions in the Federal and State constitutions relating to due process and also speciﬁcally relating to counsel, which are different from the provisions in India.
1168. The Sixth Amendment to the Constitution of the United States of America (so far as is relevant) provides "In all criminal prosecutions the accused shall enjoy the right . . . . .. to have the assistance of counsel for his defence". Adequate compensation to counsel has been regarded as necessary to make this right satisfactory in practice3.
Position America.
1 For a detailed study, see Beancy, Right to Counsel in American Courts.
(University of Michigan_Publication), (1955), pages 36, 8o, 87 and I42 and Brownell H1 (1961) American Bar Association Journal "Decade of progress".
2 For a summary of four recent cases, see (I963) American Bar Association Journal, 587-589.
3 See, Hrvin, "Uncompensated counsel. They do not meet the constil tutional mandate", (1963) American Bar Association Journal, 435.
im 352 1169. In the U.S.A., the right to counsel in criminal
- cases is derived from various sources. These sources are statutory as well as constitutional. It is unnecessary to refer to those provisions and the proliﬁc case-law thereon.
Stating the position Very broadly, one may say that this right is derived--
(a) in the Federal ﬁeld----
(i) for capital cases, from statute, and
(ii) for capital as well as non-capital cases, from the Sixth Amendment';
(b) in the State ﬁeld---
(i) for capital cases, from State enactments, and _ .
(ii)' for capital as well as non-capital cases, from the "due process of law", clause in the Fourteenth Amendment?-3 1170. So far as the Sixth Amendment is concerned, the interpretation based on "assistance of counsel" has been . a wide one, so as to embrace the right to have the effective assistance of counse1--what is known as the right to "appointed counsel."
1171. So far as the due process of law is concerned,
- the leading cases are Powell v. Alabama'' and the recent A case of Gideon'. The former was a capital crime; the latter related to a non--capital crime. The effect of the lead-
ing cases (stated very roughly) is that failure to furnish counsel to an indigent person, accused of a crime, is a de-
n privation of due process, and may be regarded as fatal if the trial has been prejudiced.
1172. In another case", failure to furnish counsel, on appeal from a conviction for felony, has been held to be a denial of the equal protection of laws'. Thereafter, several cases dealing with pre-trial right to counsel have been decided".
I johnson v. Zerbst, (I938) 304 U.S. 458. 2 Hamilton v. Alabama, 096:) 368 U.S. 52. 3 Gideon V. W/air: W/'right (I963) 372 U.S. 335. 4 Powell v. Alabama, (1932) 287 U.S. 45. 5 Gideon v. Wain Wright (March 18, x963).372 U.S. 335, overruling Ben; V. Brady. ' 6 Douglas v. CaIiform'a, (March 18, I963), 372 U.S. 353. (These and other cases are discussed in 1963 American Bar Association Journal 587 and 1192).
7 For a review of the position, see Spies, "Due Process and the American Criminal Trial", (1964) 38 Aust. 'Law Journal, 223, 234, 235 and Note (1963) 77 Harvard Law Review, 103-108 "Supreme Court 1962 Term".
8 Sec "Developments in the Law--C_onfessions" (I966) 79 Harvard Law 3 Review, 935, 996 to 998, 1022 and 1110 (Indian position compared).
353
1173. Any provision, however, on the subject, will remain an idle formula, securing no practical beneﬁt, unless steps are taken to ensure that the representation provided to the accused is effective. It is commonplace that the particular counsel who is assigned to the accused would not be able to render assistance to the best of his ability unless he gets sufficient time and facilities for preparation, a.nd is adequately paid. Poor payment will not attract counsel of reasonable talent. The quality of counsel will also depend upon the appointing agency. Having regard to these considerations, we think that the main factors on which the adequacy of assistance in the shape of counsel depends, would be----- -
The time at which counsel is provided.
. The time up to which counsel is provided.
. The agency by which counsel is appointed.
. The agency by which counsel is paid.
. The facilities allowed to counsel for preparation. . The remuneration allowed to counsel.
7. The awareness of the accused that he is entitled to counsel.
csviuscawr' 1174. At ﬁrst sight, a provision for appointing counsel would seem to be a matter of sympathy, or a gratuitous concession allowed on grounds of compassion. A close study will, however, show, that such a facility is not a luxury; it seems to go to the root of the matter. Without the "guiding hand of counsel", laymen cannot present their case properly. Cross-examination, which still remains the most effective tool for testing the veracity of a Witness, is a weapon which no layman, however intelligent he may he, can ordinarily employ in the atmosphere of a court- room and with efficient counsel pitched on the other side. It is from this point of view that we attach the greatest importance to the assistance of counsel in capital cases.' 1175. We would, therefore, "recommend? very strongly, Rcmmew that all State Governments and High Courts should review dation. the provisions regarding the assistance Of counsel in capi- tal cases in order to consider-
(a) whether the right is effective in practice, with reference to the criteria which we have indicated above,and
(b) particularly, whether the fees allowed to counsel are adequate to attract good talent.
~ r_For the purpose of this Report, it is unnecessary to discuss how tar this right should be available in non--capital cases also.
2 See F_O'.ll'Ie€I1Ih Report of the Law Commission, (Reform of Judicial Administration), Vol. I, pages 587 to 599.
354
The general question of legal aid has been examined more than once in India by various Committees, and we need not repeat what is already contained in the reports of those committees.' SUMMARY OF MAIN CONCLUSIONS AND RECOMMENDATIONS
1. The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind?
It is difficult to rule out the validity of, or the strength behind, many of the arguments for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.
Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its. area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of. abolition of capital punish.-_ ment".
Arguments which would bje valid in respect of one area of the world may not hold_ good in. respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a_ material, difference, it may be fraught with serious consequences in other parts'.
On a consideration of all the isues involved, the Com-. mission is of the opinion,'that capital punishment should be retained in the present state of the cQuntry5.
I see Fourteenth Report of the Law Commission (Reform Of Judicial.' Administration), vol. 1, pages 587 to' 599. 2 See paragraph 262.
3 See paragraph 263.
4 See paragraph 263.
5 Paragraph 264.
355
2. (a) The deterrent object of capital punishment is the most important object. Indeed, it would seem to con- stitute its strongest justiﬁcationl. Even if all the other objects were to be kept aside, the deterrent object would, by itself, furnish a rational basis for its retention.
The retributive object cannot, however, be totally ruled out. "Retribution", as used here, does not mean the pri-
mitive concept of "eye for an eye", but connotes the .
expression of public indignation at a shocking crime, which can better be described as "reprobation"2.
The retributive object is also reﬂected in its negative aspect. Where the circumstances of a crime are such that they excite not a sense of shock but a feeling of pity, the "reprobation" is off-set by the "extenuating circumstances". A subdued sympathy takes the place of reprobation; public feeling sides itself in favour of the offender; the law bows down to this feeling, whether through the court or through the prerogative of mercy or by express provision in some
-cases?
Even after all the arguments advanced to support the abolition of capital punishment are taken into account, there does remain a residuugm of cases where it is absolute-
ly impossible to enlist any sympathy on the side of the.
criminal, or to postulate any mental abnormality on his part, or to assert that the deterrent effect is counter-' balanced by any external factors i.e., factors other. than.
will and determination of the criminal'.
(b) Punishment as a deterrent has various aspects, namely, to stop the offender from offending again (parti-i cular deterrence), to deter other potential oﬁenders .
(general deterrence), and to protect the society from the persistent offender (protection) 5.
After a discussion in detail of .-the various arguments pertaining to the deterrent effect ,of capital punishment, the Commission has reached the »co'_nclusion that capital punishment does act as a deterrent'.
3. (a) On the footing that capital punishment is to be retained, no material changes as regards the sentence of death are recommended in respect of the offences which are, at present, punishable with death under the Indian Sec paragraphs 295-296.
Paragraph 297.
Paragraph 29%.
Paragraph 300.
Paragraph 294.
Paragraphs 37o----372.
6\uc.;..Uu--
356
Penal Code, sections 121, 132, 194, (second paragraph) 302; 303', 305, 307, 396". '
(b) The Commission does not recommend, in the pre- sent report, that any other offences under the Indian Penal Code or any other law should be punishable with death"--'*".
4. The relevant provisions in the Indian Penal Code' which vest in most cases a discretion in the court to award the sentence of death or the lesser sentence of imprison-- ment for life have been considered. The vesting of such discretion is necessary, and the provisions conferring such discretion are working satisfactorily". ' Section 303, Indian Penal Code, under which the sen- tence of death is mandatory for an offence under the section, need not be amended by leaving the question of sentence to the discretion of the Court, or by conﬁning the operation of the section to cases where the previous- offence is an offence for which the offender could have been sentenced to death".
5. The considerations which weigh or should weigh with the court in awarding the lesser punishment of imprisonment for life, (in respect of offences for which the prescribed punishment is death or imprisonment for life), cannot be codiﬁed. The circumstances which should or should not be taken into account, and the circumstances which should be taken into account along with other cir- cumstances, as well as the circumstances which may, by I See also point No. 4, in this summary, regarding section 303, Indian Penal Code.
2 See paragraph 395 (general) read with paragraphs 77, 78, 83, 84 (for murder---s. 302), paragraphs 396----397 (sections 121 and 132), paragraphs 393-404 (section 194) paragraph 405 (section 303), paragraph 407 (section
305), paragraph 410 (section 307), paragraphs 411-412 (section 396).
3 Paragraph 463 (Adulteration).
Paragraph 464 (Armed Forces).
Paragraph 465 (Arson).
Paragraph 473 (Espionage).
Paragraph 476 (Hoarding, Proﬁteering and Blackmarketing). Paragraph 477 (Kidnapping). ' Paragraphs 481-501 (Negligence----Homicide by). 10 Paragraph 522 (Rape).
11 Paragraph 528 read with paragraph 471 (Sabotage). 12 Paragraph 529 (Secession----preaching of).
13 Paragraph 530 (Smuggling).
14 Paragraph 531 (Train Robbery and Wrecking).
I5 Paragraph 539 (Treason).
16 Paragraphs 580-585.
17 Paragraphs 587-591.
\O00\lO\UI-§ 357 themselves, be sufficient, in the exercise of the discretion regarding sentence, cannot be exhaustively enumerated.' Further, the exercise of the discretion may depend on local conditions, future developments, evolution of the moral sense of the community, the state of crime at a particular time or place, and many other unforseeableg features. Codiﬁcation of these considerations may, if attempted, be too wide and too narrow at the same t1me_~'. No change in the law is, therefore, recommended on this point". '
6. It is not desirable to divide murder into different categories for the purpose of regulating the punishment for murder, or to divide murders into capital and non-capital. .
The crime of murder is one of inﬁnite variety. Many factors have to be taken into consideration, and not in- V frequently, a careful balancing of conﬂicting considerations « has to be undertaken. No amount of verbal dexterity can ' surmount these difﬁculties'-"'.
7. The Commission does not recommend any provision----
(a) that the normal sentence for munder should be imprisonment for life but in aggravating circum-» stances the court may award the sentence of death", or
(b) that the normal sentence for murder should be death but in case of extenuating circumstances the lcgurt may award the sentence of imprisonment for 1 ea
8. There should be a provision in the law requirinq the court to state its reasons for imposing a sentence of death or the lesser sentence-of imprisonment for life, in respect of any offence which is punishable with death or imprison--
ment for life in the alternative.
The Code of Criminal Procedure, 1898, be amended"
accordingly3.
9. Assuming that the sentence of death is to be retained,.
1 Paragraph 629.
2 Paragraphs 630-631.
3 Paragraphs 632-634.
4 Paragraphs 7oo----7o5 (General discussion).
the question of exempting certain classes of persons from;
For spzciﬁc points, See paragraph 516 ([5-e-me,1i;a:;0n); paragraph, 2x (Scheme in Penal Coie of Burma); paragraph 725 (intent to kill). Paragraph 790.
Paragraph 79x.'« 8 Paragraph: 2320-822.
\l 358 the sentence of death was considered. The conclusion rea- ;ched with respect to each class of persons is as fo11ows:----
(i) Children----Persons below 18 years of age at the time of the commission of the offence should not be sentenced to death} A provision to that effect. can be conveniently inserted in the Indian Penal Code, as sec- tion 55B.
(ii) It is not necessary to exempt women generally from the sentence of death?
(iii) Regarding pregnant women sentenced to
-death, the existing provisions are discussed. It is not necessary to add to the existing provisions by inserting elaborate provisions regarding medical examination of the woman, or a peal by her as to the a ﬁnding that she is not pregn nt-". -
(iv)' It is not necessary to add any provision in the law for exempting from the sentence of death, cases of a mother killing her infant child within a certain
-period after the,delivery4.
(V) It is unnecessa to insert a statutory provi- .sion as to cases of "dim nished responsibility".
(vi) It is unnecessary to exempt, from the sen- 'tence of death, the other classes of persons mentioned in some of the suggestions".
10. Enlargement of the appellate jurisdiction of the 'Supreme Court, so as to provide that an appeal shall lie to the Supreme Court as a matter of right in all cases in: which a sentence of death has been passed, conﬁrmed or upheld by the High Court, is not recommended'. r _11. (a) No changes are suggested with respectgto the 'power of the President and the Governor to grant pardon, reprieve, respite or remission-in respect of the punishment of death or to suspend remit or commute the sentence of death under articles 72 and 161 of the Constitution, or with respect to the power of the Government to suspend'; remit or commute such sentence under sections 401 and 402, Code of Criminal Procedure, 1898'. '.
I Paragraphs 878-887.' Paragraphs 888----890.' Paragraph 893.
Paragraph 898.
Paragraph 924.
Paragraph 925.
Paragraphs 982-985.
Paragraph 1025 read. with paragraphs 1001 and 1002. _ 'g_,\iO'\U.l4..l-JON 359
(ii) (i) Having regard to the fact that the circumstan- cesof each case must differ from another, it would not be desirable to attempt to lay down any rigid and exhaustive provisions as to the principles which should guide the exer- cise of these powers'.
(ii) As regards the procedure which should be follow- ed in the exercise of these powers, it is not necessary to have any statutory provisions for---
(1) compulsory consultation with the J udgesi; (2) an Advisory Board";
(3) requiring publication of the reasons for exer- cise of the power, in a particular case};
(4) requiring prior recommendation of the court, before grant of commutation';
(5) compulsory consultation with the Attorney General".
12. (a) The opinions received on the subject of the method of execution of the sentence of death are consider- ed. A method which is certain, humane, quick and decent should be adopted. But a positive opinion cannot be expre- ssed (in the present state of knowledge on the subject), and it is not possible to recommend any change in the pre- sent method of hanging'.
(b) The question, whether executions should be held in public, is considered. An execution in public would be re- pulsive, and that is a suﬁicient argument against its intro- duction in Indias. It is not necessary to give prior or subsequent publicity to an execution".
(No statutory provision recommended).
I Paragraph 1075, read with paragraph 1026. 2 Paragraph 1085.
3 Paragraphs 1o86--io89.
4 Paragraph 1090.
5 Paragraph 1091.
6 Paragraph 1092.
7 Pa1'3.graphs I149 --- 1 150.
8 Paragraphs 1152 -1153.
9 Parrlgraph 1153.
10 Paragraphs 1161 and 116:.
25--122 Law 360
13. Some of the other related topics discussed are---
(i) Plea of guilty in a trial for a capital offence.
(No specific provision recommended) .'
(ii) Medical examination of the accused in a capi- tal case, for determining his sanity."-'
(iii) Restitution to the victim of crime. (The matter is one of policy, not arising out of abolition) 3.
(iv) Rehabilitation' of families of criminals, con- demned to death (Suggestion noted. No change in law recommended) .
(v) Forfeiture of property of the offender---and its disposal in favour of heirs of the person murdered. (No recommendation made for change---Suggestion noted5.)
(vi) After-care of prisoners (sentenced to life imprisonment), after their release from prison. Recom- mendation made" that ﬁgures of recidivism may be published and made available in a convenient form or included in the official annual publication "Crime in India". Figures of recidivism (i.e., a capital crime or crime involving violence committed by a prisoner sen- tenced to imprisonment for life, after his release) would be of interest in assessing how far the sentence of imprisonment has worked as a deterrent.
(vii) Rules relating to remission of period of im- prisonment in case of persons sentenced to imprison- ment for life, referred to (The question of amendment to rules is not considered in this Report) 7.
(viii) Legal aid--All State Governments and High Courts may review the provisions regarding the assis- tirlife of Counsel in Capital Cases, in order to consi- d ....
(a) whether the right (to be provided with counsel) is effective in practice, with reference to the criteria indicated in the Report", and
(b) particularly, whether the fees allowed to counsel are adequate to attract good talent.
®\lO\VI-RUIN"
Paragraphs 99o--996.
Paragraphs 997-1000.
Paragraph 1155.
Paragraph I156.
Paragraph 1160.
Paragraph I163.
Paragraph 1164.
Paragraph 1175.
Paragraphs n71--1x73.
25----122 M of Law 361
1. J. L. KAPUR--Chai,7'1n.a?¢..
2. K. G. DATAR E I I k } Memuers.
3. S. S. DULAT
4. T. K. TOPE
5. RAMA PRASAD MOOKERJEE P. M. BAKSHI.
Joint Secretary and Leg-isIa.ti.ve Counsel. Secretary.
NEW DELHI, The 30th September, 1967.
UM¢3ﬂ'ND-TSS-122 M 0f Llw. Val. I-I II ---234-71 -1.800.
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