Full Judgment Text
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PETITIONER:
DALBIR SINGH & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT04/05/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
SEN, A.P. (J)
CITATION:
1979 AIR 1384 1979 SCR (3)1059
1979 SCC (3) 745
CITATOR INFO :
MV 1982 SC1325 (3,61,67)
RF 1988 SC 747 (17)
ACT:
Indian Penal Code (45 of 1860), S. 302 & Criminal
Procedure Code 1973 (2 of 1974), S. 354(3)-Imposition of
death penalty-Court enjoined with duty to record ’special
reasons’ for awarding extreme penalty-Nature of the crime
whether the sole determinant of the punishment.
Constitution of India 1950, Art. 141-Binding nature of
Precedents-Ingredients of a decision-Explained-Ratio
decidendi-Definition of.
HEADNOTE:
There was a dispute between the appellants and the
complainant’s party over the ’turns of water’ for irrigation
of their agricultural lands. The dispute was settled by a
patchwork mediation but it was of no avail. On the fateful
day, the complainant’s party were making merry with alcohol
in the house of the prosecution witness when the 3rd
appellant joined them. His unwelcome presence resulted in
frayed tempers, and beatings of the 3rd appellant. The
latter, bent on reprisal for the flagellation and
humilation, waited till sundown and returned armed with
friends and weapons. He ignited the attack by instigation
and the 1st and 2nd appellants fired with their guns as a
result of which 3 members of the complainants’ party died on
the spot. At this situation, PW 14 brought out his licensed
gun from his house, and thereupon both sides started firing
and a number of persons sustained gun shot injuries on their
person. In the midst of this firing, the lambardar of the
village appeared on the scene and made an attempt to pacify
both the sides, but he also received gun shot injuries as a
result of which he died two days later. A fourth person made
a dying declaration that he had been shot by the appellants.
The Sessions Court held the appellants guilty under
Section 302 I.P.C. and sentenced them to death, and the High
Court on appeal confirmed the sentence.
Allowing the appeal to this court,
^
HELD: [Per Krishna Iyer & Desai, JJ.]
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1. Death sentence on death sentence is Parliament’s
function. Interpretative non-application of death sentence
when legislative alternatives exist is within judicial
discretion. [1065B]
2. The dignity of man, a sublime value of the
Constitution and the heart of penelogical humanisation, may
find expression through culturisation of the judicial art of
interpretation and choice from alternatives. If the Court
reads the text of s. 302 Penal Code, enlightened by the
fundamental right to life which the Founding Fathers of the
Constitution made manifest, the judicial oath to uphold the
Constitution will unfold profound implications
1060
beyond lip service to Form VIII of the Third Schedule and
this lofty obligation and cultural Constitutional behest
validates the exploration of the meaning of meanings wrapped
in the uncharted either/or of the text of s. 302 IPC.
[1065E-F]
3. Courts read the Code, not in judicial cloisters but
in the light of societal ethos. Nor does the humanism of our
Constitution holistically viewed, subscribe to the
hysterical assumption or facile illusion that a crime free
society dawn if hangman and firing squads were kept
feverishly busy. [1066A-B]
4. The myopic view that public executions backed by
judicial sentences will perform the funeral of all criminals
and scare away potential offenders is a die-hard
superstition of sociologically and psychologically
illiterate legalism which sacrifices cultural values,
conveniently turns away from the history of the futility of
capital penalty over the ages and unconsciously violates the
global reality that half the world has given up death
penalty, de jure or de facto, without added calamity, and
the other half is being educated out of this State practised
lethal violence by powerful human rights movements at once
secular and spiritual. [1067B-C]
5. The jurisprudence of sentencing in Free India has
been a Cinderella and the values of our Constitution have
not adequately humanised the punitive diagnostics of
criminal courts, which sometimes, though rarely, remind us
of the torture some and trigger-happy aberrations of the
Middle Ages and some gory geographic segments, soaked in
retributive blood and untouched by the correctional karuna
of our Constitutional culture. [1068G]
6. After Ediga Annamas’s case [1974] 4 SCC 443 the law
of punishment under s. 302 IPC has been largely settled by
this court and the High Courts are bound thereby. [1068H]
7. Rajendra Prasad’s case [1979] 3 SCR 78 and Bishnu
Deo Shaw’s case [1979] 3 SCR p. 355 have indubitably laid
down the normative cynosure and until over ruled by a larger
bench of this court that is the law of the land under Art.
141. To discard it is to disobey the Constitution and such
subversiveness of the rule of law, in a crucial area of life
and death, will spell judicial disorder. Today, the law is
what Rajendra Prasad, in its majority judgment, has laid
down and that has been done at unmistakable length. Willy-
nilly, that binds judges and parties alike. [1068H-1069A,
1069C]
8. Counting the casualties is not the main criterion
for sentencing to death, nor recklessness in the act of
murder. The sole focus on the crime and the total farewell
to the criminal and his social-personal circumstances
mutilate. sentencing justice. [1069B]
9. The forensic exercise at the sentencing stage,
despite the purposeful s. 235(2) Cr.P.C., has been a
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functional failure because of the casual way the punishment
factors are dealt with, as if the nature of the crime was
the sole determinant of the punishment. In Rajendra Prasad’s
case it has been explained how the prosecution must make
out, by special factors, why the graver penalty should be
inflicted. Evidence may be led and arguments addressed by
both sides, but in practice s. 235(2) has been frustratingly
ritualised. [1069D-E]
1061
10. Section 302 of the Penal Code, read with s. 354(3)
of the Criminal Procedure Code demands special reasons four
awarding the graver sentence. [1070El
ll. Taking the cue from the English legislation on
abolition, the majority opinion suggested that life
imprisonment which strictly means imprisonment for the whole
of the man’s life but in practice amounts to incarceration
for a period between 10 and 14 years may, at the option of
the convicting court, be subject to the condition that the
sentence of imprisonment shall last as long as life lasts
where there are exceptional indications of murderous
recidivism and the community cannot run the risk of the
convict being at large. This takes care of judicial
apprehensions that unless physically liquidated the culprit
may at some remote time repeat murder. [1071F-G]
12. The gallows swallow, in most cases, the social
dissenter, the political dissenter, the poor and the under-
privileged, the member of minority groups or one who has
turned tough because of broken homes, parental neglect or
other undeserved adversities of childhood or later. Judicial
error leading to innocent men being executed is not too
recondite a reality. Evidence in Court and assessments by
judges have human limitation. [1071H-1072Bl
13. A Full Bench of the Madras High Court in Athapa
Goundan’s case (AIR 1937 Mad. 695) sentenced him to death.
He was duly executed as also several others on the ratio of
that ruling. This Full Bench decision was, however, over-
ruled ten years later by the Privy Council in 1947 PC 67.
Had it been done before Goundan was gallowed many judicial
hangings could have been halted. [1072C]
(A) In the instant case the earlier provocation came
from the deceased’s side by beating up Appellant No. 3. The
parties, including the prosecution group were tipsy. There
had been antecedent irrigation irritation between them.
There was no pre-planned, well-laid attack, hell-bent on
liquidating the enemy. [1069E]
(B) The sentences of death in the present appeal are
liable to be reduced to life imprisonment. [1071E]
(Per Sen, J. dissenting)
1. The question of abolition of capital punishment is a
difficult and controversial subject, long and hotly debated
and it has evoked during the past two centuries strong
conflicting views. [1072H]
2. The question whether the scope of death sentence
should be curtailed or not is for the Parliament to decide.
The matter is essentially of political expediency and, as
such, it is the concern of the statesmen, and, therefore,
the domain of the Legislature land not the Judiciary.
[1073A]
3. It is not within the province of this Court while
dealing with an appeal confined to sentence under Art. 136,
to curtail the scope of death sentence under s. 302 l.P.C.,
1860 nor is it constitutionally or legally permissible for
this Court while hearing such an appeal to lay down that on
grounds of compassion and humanism the sentence of death on
a conviction for murder under s. 302, as a rule of universal
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application be substituted by a sentence
1062
of imprisonment for life, irrespective of the gravity of the
crime and the surrounding circumstances i.e., virtually
abolish the extreme penalty. [1072G]
4. Section 302 I.P.C., 1860 confers upon the Court a
discretion in the matter of the punishment to be imposed for
an offence of murder and the Court has to choose between the
sentence of death and a sentence of imprisonment for life
while under s. 354(3) Cr. P.C., 1973 the Court is enjoined
with a duty to record ’special reasons’ in case the extreme
penalty is awarded. But the question whether the death
sentence should be awarded or not must, be left to the
discretion of the Judge trying the accused and the question
of sentence must depend upon the facts and circumstances
obtaining in each case. A sentence of death when passed, is
subject to confirmation by the High Court under s. 366(1) of
the Code. The accused also has a right of appeal to the High
Court under s. 374(2) against the sentence. Thereafter an
appeal lies to this Court by special leave under Art. 136 on
the question of sentence. It would, therefore, be manifest
that it is neither feasible to define nor legally
permissible for this Court to limit or circumscribe the
connotation of the expression ’special reasons’ occurring in
s. 354(3) of the Code so as to bring about a virtual
abolition of the death sentence. [1073B-E]
5. A decision on a question of sentence depending upon
the facts and circumstances of a particular case, can never
be regarded as a binding precedent, much less ’law declared’
within the meaning of Art. 141 of the Constitution so as to
bind all courts within the territory of India. [1073F]
6. According to the well settled, theory of precedents
every decision contains three basic ingredients: (i)
findings of material facts, direct and inferential. An
inferential finding, of facts is the inference which the
Judge draws from the direct, or perceptible facts, (ii)
statements of the principles of law applicable to the legal
problems disclosed by the facts, (iii) Judgment based on the
combined effect of (i) and (ii). For the purposes of the
parties themselves and their privies, ingredient No. (iii)
is the material element in the decision for it determines
finally their rights and liabilities in relation to the
subject-matter of the action. It is the judgment that estops
the parties from reopening the dispute. However for the
purposes of the doctrine of precedents, ingredient No. (ii)
is the vital element in the decision. This indeed is the
ratio decidendi. It is not everything said by a judge when
giving judgment that constitutes a precedent. The only thing
in a judge’s decision binding a party is the principle upon
which the case is decided and for this reason it is
important to analyse a decision and isolate from it the
radio decidendi. [1073G-1074B]
7. The ratio decidendi may be defined as a statement of
law applied to the legal problems raised by the facts as
found, upon which the decision is based. The other elements
in the decision are not precedents. [1074C]
Qualcast (Wolverhampton) Ltd. v. Haynes L.R. 1959 A.C.
743 referred to.
8. Even where the direct facts of an earlier case
appear to be identical to those of the case before the
Court, the Judge is not bound to draw the same inference as
drawn in the earlier case. [1074D]
1063
9. There are no rationes decidendi much less any ratio
decidendi in Rajendra Prasad’s case. [1074-E]
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(i) In the minority opinion the need for judicial
restraint was emphasised and the duty to avoid encroachment
on the powers conferred upon Parliament. The assessment of
public opinion on this difficult and complex question was
essentially a legislatives not a judicial, function. [1074El
(ii) Buttressed by the belief that Capital punishment
served no useful purpose, the majority, asserted that it was
morally unacceptable to the contemporary society and found
it shocking to their conscience and sense of justice. The
deliberate extinguishment of human life by the State for an
offence of murder, was a denial of human dignity and the
death penalty was usually inflicted only on a few, i.e. the
poor and downtrodden who are outcasts of a society, which
led to the irresistible inference that the punishment was
not fairly applied. [1074F]
(iii) This may be ’progressive’ stance which is out of
place in a judicial pronouncement, which ought to be based
on the facts and circumstances of the case and the law
applicable. But the professed view does not stem from a firm
belief in dignity of human life for the death penalty is
advocated for certain classes of offenders namely (l) white
collar offenders, (2) anti-social Offenders and (3 )
hardened murderers. This shows that the majority was not
against the capital punishment in principle. [1074G-1075A]
(iv) on the facts, the majority commuted the sentence
of death to a sentence of imprisonment for life, and the
decision cannot, therefore, be construed as laying down a
ratio decidendi. [1075B
10. The majority decision tested in the light of the
theory of precedents clearly does not lay down any legal
principle applied to any legal problem disclosed by the
facts and, therefore, the majority decision cannot be, said
to have ’declared any law’ within the meaning of Art. 141 so
as to bind all courts in the country. General observations
made in the context of sentencing jurisprudence will have to
be regarded as the view of the Judge/ Judges concerned-and
not ’law declared by this court’ under Art. 141 of the
Constitution. Any attempt to limit or circumscribe the
connotation of ’special reasons’ mentioned in s. 354(3) of
the Code of Criminal Procedure by indulging in
classification of murders such as white collar offences and
nonwhite collar offences or laying down so-called guidelines
for imposition of the extreme penalty, would amount to
unwarranted abridgement of the discretion legally vested in
the trial court and constitutionally upheld by this
Court.[1075C-D]
11. If the general observations on sentencing
jurisprudence made in Rajendra Prasad’s ease are to be
regarded as ’law declared by this Court’ within the meaning
of Art. 141 so, as to bind all courts in the country, then
the observation or the so-called guidelines to the effect "
’special reasons’ necessary for imposing death penalty must
relate, not to the crime as such but to the criminal"
occurring in the majority judgment, it must be stated, would
be unwarranted and contrary to s 302 of the Indian Penal
Code read with s. 354(3) of the Code of Criminal Procedure.
[1075E-F]
1064
12. S. 302 of the I.P.C. gives a choice while s. 354(3)
of the Code merely requires ’special reasons’ to be
indicated for imposing the death penalty. Nothing is stated
whether the ’special reasons’ should relate to the criminal
or the crime. In the absence of any specific indication in
that behalf ’special reasons’ would relate both to the crime
and the criminal. Previously, perhaps, more attention was
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being paid to the nature, gravity and the manner of
committing the crime, though extenuating factors concerning
the criminal, his age, criminal tendencies etc. were not
ignored. [1075G]
13. In the majority judgment in Rajendra Prasad’s case
nothing new has been said except that more emphasis on
factors concerning the criminal is indicated. But in the
great enthusiasm for doing so, the pendulum has swung to the
other extreme and the guideline given is that the ’special
reasons’ must relate "not to the Crime as such but to the
criminal," for which there is no warrant in s. 354(3) of the
Code of Criminal Procedure. [1075H-1076A]
14. The obsession to get the death penalty abolished
from the Statute Book i.e. Indian Penal Code 1860 is so
great great an interdict against it is surprisingly spelt
out from the Constitution itself because right to life has
been regarded as ’very valuable, sacrosanct and fundamental’
therein, though in Jagmohan Singh’s case 1(1973) 1 S.C.C.
20] a constitution bench of this Court unanimously held that
the death penalty and the judicial discretion vested in the
Court regarding its imposition on an accused are
constitutionally valid. [1076B-C]
15. So long as the extreme penalty is retained on the
Statute Book, it would be impermissible for any Judge to
advocate its abolition in judicial pronouncements. The forum
for that is elsewhere. [1076D]
(a) In the instant case it cannot be said that the
award of death sentence to any of the two appellants, was
not proper or uncalled for. Though the dispute was over the
’turns of water,’ that would hardly furnish any
justification for the commission of the pre-planned triple
murder. The dastardly act of the appellants resulted in the
loss of three precious lives. These were nothing but
intentional, cold-blooded and brutal murders. [1077A, E]
(b) The High Court was justified in confirming the
death sentence passed under s. 368(a) of the Code, being
satisfied that there were ’special reasons" within the
meaning of s. 354, sub-s. (3) of the Code of Criminal
Procedure 1973. [1077A]
(c) On the facts and circumstances of the case the
award of death sentence to the two appellants who were
trigger happy gentlemen was neither ’erroneous in principle’
nor was ’arbitrary or excessive’, or ’indicative of an
improper exercise of discretion’, and is well merited.
[1077G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 12
of 1979.
Appeal by Special Leave from the Judgment and order
dated the 6th October, 1978 of the Punjab and Haryana High
Court in Criminal Appeal No. 735 of 1978 and Murder
Reference No. 6/78.
1065
Frank Anthony and Sushil Kumar for the Appellants.
R. S. Sondhi and Hardev Singh for the Respondent.
The Judgment of V. R. Krishna Iyer and D. A. Desai, JJ.
was delivered by Krishna Iyer, J. A. P. Sen, J. gave a
dissenting opinion.
KRISHNA IYER, J.-Death sentence on death sentence is
Parliament’s function. Interpretative non-application of
death sentence when legislative alternatives exist is within
judicial jurisdiction. The onerous option to spare the lives
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of the appellants to be spent in prison or to hand them over
to the hangman to be jettisoned out of terrestrial life into
"the, undiscovered country from whose bourn no traveller
returns" is the crucial function this Court has to exercise
in the present appeal.
Sir Winston Churchill, in his oft-quoted observation,
said:
The mood and temper of the public with regard to
the treatment of crime and criminals is one of the most
unfailing tests of the civilization of any country."(1)
Without academic aura and maukish sentimentalism the
court has to rise to principled pragmatism in the choice of
the penal strategy provided by the Penal Code. The level of
culture is not an irrelevant factor in the punitive
exercise. So we must be forwarned against deeply embedded
sadism in some sectors of the community, demanding
retributive death penalty disguised as criminal justice-a
trigger-happy pathology curable only by human rights
literacy. But the dignity of man, a sublime value of our
Constitution and the heart of penological humanisation, may
find expression through culturisation of the judicial art of
interpretation and choice from alternatives. If the court
reads the text of s. 302 Penal Code, englightened by the
fundamental right to life which the Father of Nation and
the(’) founding fathers of the Constitution made manifest,
the judicial oath to uphold the Constitution will unfold
profound implications beyond lip service to Form VIII of the
Third Schedule and this lofty obligation and cultural-
constitutional be hest validates our exploration of the
meaning of meanings wrapped in the uncharted either/or of
the text of s. 302 I.P.C. It is right to state, to set the
record straight, that this Court has in Rajendra Prasad’s
case(3)., exposed the disutility and counter culture of an
obsolescent obsession with crime as distinguished from crime
doer and the sentencing distortion that develops almost into
a paranoid preoccupation with death dealing severity as the
saviour of society in the land of the
(1) Sentencing and Probation, National College of the
State Judiciary, Reno, Neveda p.68.
(2) Acharya Kripalani and the Lok Nayak have condemned
death penalty publicly
(3) [1979] 3 S.C.R.78.
12-409 SCI/79
1066
Buddha and the Mahatma and in a world where humanity has
protested against barbaric executions by State agencies even
with forensic ’rites’ Courts read the Code, not in judicial
cloisters but in the light of societal ethos. Nor does the
humanism of our Constitution holistically viewed subscribe
to the hysterical assumption or facile illusion that a
crime-free society will dawn if hangman and firing squads
were kept feversishly busy.
We may remind the intractable retentionists that the
British Royal Commission, after studying statistics from six
abolitionist countries, namely, Switzerland, Belgium. The
Netherlands, Norway, Sweden and Denmark, observed: "The
evidence that we ourselves received in these countries was
to the effect that released murderers who commit further
crimes of violence are rare, and those who become useful
citizens are common."
No Indian is innocent of the insightful observations of
the Father of the Nation over 40 years ago in the Harijan :
" I do regard death sentence as contrary to
ahimsa. Only he takas life who gives it. All punishment
is repugnant to ahimsa. Under a state governed
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according to the principles of ahimsa, therefore, a
murderer would be sent to a penitentiary and there
given every chance of reforming himself. All crime us a
kind of disease and should be treated as such."(l)
With this exordial exercise we may get back to the
macabre episode in this appeal which has blown up into four
murders, typical of the syndrome of village violence
triggered off by tremendous trifles when viewed in
retrospect. When a psychic stress, left to smoulder and r
flame up, is fuelled by factions and firearms, social
irritants and economic discontents, ubiquitous in rural
India, it suddenly flares as showdowns and shootings, taking
many precious lives in haywire fury. The solution for
explosive tensions and return to tranquility is curing the
inner man through proven meditational, mental-moral neural
technology, elimination of social provocation and economic
injustice and of addiction to inebriants which dement the
consumer. Timely vigilance of policing agencies to nip in
the bud burgeoning confrontations and prompt and potent
enforcement of the Arms Act the failure to do which makes
weapons freely available also account for escalating
violence. The. social autospsy of murders is more
significant than the medical post-mortem of cadavers or the
forensic close-up of crime after it has occurred. The
escapation of violence cannot be arrested
(l) Harijan, March 19, 1937
1067
by inert police presence going into action after tragic
clashes, but only A by a holistic ministering to the inner
man as well as collective consciousness. It is obvious, yet
obscure, that a crime-firee society is beyond the gift of
severe judges or heavy-handed policemen. And the myopic view
that public cxecutions backed by judicial sentence’s will
perform the funeral of all criminals and scare away
potential offenders is a die-hard superstition of
sociologically and psychologically illiterate legalism which
sacrifices cultural values, conveniently turns away from the
history of the futility of capital penalty over the ages and
unconsciously violates the blobal reality that half the
world has given up death penalty de jure or de facto,
without added calamity, and the other half is being educated
out of this State-practised lethal violence by powerful
human rights movements at once secular and spiritual.
These observations, not meant to be polemical or
pontifical, gain functional relevance as we proceed to
narrate the minimal facts, as found by the High Court, since
we have set our face against reopening evidentiary re-
appreciation after concurrent findings have already been
rendered by the courts below.
Punjab villagers are good agriculturists and know the
value or water for golden harvests. The scene of the four
murders, the victims and the villians, the main witnesses to
the case and the prosecution scenario take us to the village
Sarhali Mandan in Amritsar District which has irrigation
facilities and consequent irritation potential. A new
scheme, regulating the turns for taking irrigation water"
was introduced, about the time of occurrence which affected
the accused and benefitted Kapur Singh, a leading
prosecution witness. This switch in irrigationed turn
sparked off friction Had it been wholesomely resolved by
imaginative official handling this murder, perhaps, could
have been obviated. Many murders in the Punjab have been
caused by social bungling regarding of water which
tragically convert the passion for production of the farmer
into passion for removal of the obstructor by murder.
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Governments have some times been deaf and dumb about this
etiology. A stitch in time saves nine, is good criminology.
Away, the dispute on the turn of water between the two
was settled by a patchwork mediation which did not finally
extinguish the fires of fury earlier ignited. For a group,
mainly of prosecution witnesses, was making merry with
alcohol in the afternoon of October 13, 1977 at the house of
Karaj Singh, a prosecution witness, when one of the
appellants Jarnail Singh went in. His unwelcome presence
resulted in frayed tempers, heated tantrums and beating of
the 3rd appellant. The latter bent on reprisal for the
flagellation and humiliation, waited till sundown
1068
and returned armed with friends and weapons from outside.
Abuses were the provocative invitation for the fracas. The
tipsy response brought the opposite party out. Jarnail
Singh, the 3rd appellant, who was the victim of the earlier
beating, ignited the attack by instigation and his party
went into violent action. Guns boomed, dangs, dived, three
men and later a fourth,, feel dead and the curtain was drawn
after the catastrophe was complete.
Probably, the accused party was also drunk. And alcohol
makes men beside themselves and buries sanity. The role of
intoxicating drinks and drugs in aggressive behaviour and
explosive crime has not been the subject of sufficient
criminological research in the country. Impressionistically
speaking, half of violent crime, explosive sex and reckless
driving, has its ’kick’ in alcohol and the gains of
’prohibition’ have new dimensions. That apart, in the case
on hand, the High Court analysed the evidence, liberally
applied the rule of benefit of doubt and climaxed its
judgments with sentences of death and imprisonment for life
on the various accused who were eventually held guilty. We
are concerned only with those who received capital penalty,
and the court expressed itself thus on this momentous issue
of death sentence:
As both Dalbir Singh and Kulwant Singh, accused,
fired at Jagir Singh, Sardul Singh and Piara Singh who
were absolutely unarmed recklessly and without
provocation of any kind, the sentence of death awarded
to each of them by the learned Additional Sessions
Judge is also hereby affirmed."
We propose to deal only with this punitive crisis
limited to its lethal aspect.
The judgment under appeal is a hint of the judicial
confusion even in this grave area of death penalty. True,
the jurisprudence of sentencing in Free India has been a
Cinderella and the values of our Constitution have not
adequately humanized the punitive diagnostics of criminal
courts, which sometimes, though rarely, remined us of the
torturesome and trigger-happy aberrations of the Middle Ages
and some gory geographic segments, soaked in retributive
blood and untouched by the correctional karuna of our
constitutional culture. But after Ediga Annama’s case(l),
the law of punishment under s. 302 I.P.C. has been largely
settled by this Court and the High Courts are bound thereby.
Rajendra Prasad’s case (supra) and Bishnu Deo Shaw’s(2)
case, have indubitably laid down the normative cynosure
(1) [1974] 4 S.C.C.443
(2) [1979] 3 S.C.R. 355
1069
and until over-ruled by a larger bench of this court that is
the law of A the land under Art. 141. To discard it is to
disobey the Constitution and such subversiveness of the rule
of law, in a crucial area of life and death, will spell
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judicial disorder. One thing is clear. Counting the
casualties is not the main criterion for sentencing to
death; nor recklessness in the act of murder. The sole focus
on the crime and the total farewell to the criminal and his
social-personal circumstances mutilate sentencing justice.
We express ourselves in this explicit fashion since the
deep-rooted Raj criminological prejudices still haunt Free
India’s courts and govern our mentations from the grave. To-
day, the law is what Rajendra Prasad (supra), in its
majority judgment, has laid down and that has been done at
unmistakable length, Willy-nilly, that binds judges and
parties alike.
The problem in the present case, going by those canons,
is easy of resolution. Death sentence in this case is
indefensible. We can surely understand how the courts below
have fallen into this fatal error. The forensic exercise at
the sentencing stage, despite the purposeful s. 235(2)
Cr.P.C., has been a functional failure because of the casual
way the punishment factors are dealt with, as if the nature
of the crime was the sole determinant of the punishment. We
have explained in Rajendra Prasad’s case how the prosecution
must make out, by special factors, why me graver penalty
should be inflicted. Evidence may be led and arguments
addressed by both sides, but in practice b. 235(2) has been
frustratingly ritualised.
Nor do we think that the court’s attention been drawn
to Ediga Annamma’s case. The two recent decisions of this
Court could not have been within the ken of the Court
because they were delivered later. Be that as it may, one
has only to read the ratio in these three cases side by side
with facts of the present case to hold that death Ir penalty
is unmerited. Here, the earlier provocation came from the
deceased’s side by beating up Appellant No. 3. The parties,
including the prosecution group, were tipsy. There had been
antecedent irrigation irrigation between them. There was no
prepalanned, well laid attack, hell-bent on liquidating the
enemy. A quarrel over turn af water; a pacification pro
tempore; an afternoon exuberance with jocose and bellicose
potions, beating up one appellant leading to a reprisal vi
et armis.
In Rajendra Prasad’s case (supra) the court, in its
majority judgement, observed:
"It is not the number of deaths caused nor the
situs of the stabs that is telling on that decision to
validate the non-
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application of its ratio. It is a mechanistic art which
courts the cadavers to sharpen the sentence oblivious
of other crucial criteria shaping a dynamic, realistic
policy of punishment.
Three deaths are regrettable, indeed terrible. But
it is no social solution to add one more life lost to
the list. In this view, we are satisfied that the
appellant has not received reasonable consideration an
the question of the appropriate sentence. The criteria
we have laid down are clear enough to point to the
softening of the sentence to one of life imprisonment.
A family feud, an altercation, a sudden passion,
although attended with extra-ordinary cruelty, young
and malleable age, reasonable prospect of reformation
and absence of any conclusive circumstances that the
assailant is a habitual murderer or given to chronic
violence-these catena of circumstances bearing on the
offender call for the lesser sentence."
The other criteria have been set out at some length in
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the same judgment and, going by them, there is hardly any
warrant for judicial extinguishment of two precious Indian
lives. Section 302 of the Penal Code, read with Section
354(3) of the Criminal Procedure Code, demands special
reasons for awarding the graver sentence, and to borrow the
reasoning in Rajendra Prasad’s case.
"Special reasons’ necessary for imposing death
penalty must relate, not to the crime as such but to
the criminal. The crime may be shocking and yet the
criminal may not deserve death penalty. The crime may
be less shocking than other murders and yet the callous
criminal, e.g. a lethal economic offender, may be
jeopardizing societal existence by his act of murder.
Likewise, a hardened murderer or dacoit or armed robber
who kills and relishes killing and raping and murdering
to such an extent that he is beyond rehabilitation
within a reasonable period according to cur rent
psycho-therapy or curative techniques may deserve the
terminal sentence. Society survives by security for
ordinary life. If officers enjoined to defend the peace
are treacherously killed to facilitate perpetuation of
murderous and often plunderous crimes social justice
steps in to demand penalty dependent on the totality of
circumstances."
1071
We see no need to expand on the narrow survival of
death sentence in our Code confined to those exceptional
situations explained in Rajendra Prasad’s case. It is
heartening, though unheeded that the framers of the Code
themselves state-d:
"We are convinced that the Death penalty should be
very sparingly inflicted. To a great majority of
mankind nothing is so dear as life."(’)
Death sentence on death sentence is the upsurge of
world opinion and Indian cultural expression. In Shanti
Parva of the Mahabharata, Prince Satyavana in the discussion
on the capital penalty says:
"Destruction of the individual by the king can
never be a virtuous act. By killing the wrong-doer the
king kills a large number of innocent persons, wife,
father, mother and children are killed. A wicked person
is seen to imbibe good conduct from a pious person.
Good children spring from wicked persons. The
extermination of the wicked is hot in consonance with
eternal law."(2)
while such unanimity in sublimity may not, by itself, repeal
the legislated text, judicial dispensers do not behave like
cavemen but breath the fresh air of finer culture.
The sentences of death in the present appeal are liable
to be reduced to life imprisonment. We may add a footnote to
the ruling in Rajendra Prasad’s case. Taking the cue from
the English legislation on abolition, we may suggest that
life imprisonment which strictly means imprisonment for the
whole of the man’s life, but in practice amounts to
incarceration for a period between 10 and 14 years may, at
the option of the convicting court, be subject to the
condition that the sentence of imprisonment shall last as
long as life lasts where there are exceptional indications
of murderous recidivism and the community cannot run the
risk of the convict being at large. This takes care of
judicial apprehensions that unless physically liquidated the
culprit may at some remote time repeat murder. . G
Another sombre fact of history, not often stressed in
court sentences save by judges like Douglas and Thurgod
Marshall, is that the gallows swallow, in most cases, the
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social dissenter, the political
(1) Indian Penal Cod-Objects and reasons.
(2) Chapter 13, ShantiParva, Mahabharata, translated
by Shri K. G. Subrahmanyam, Advocate in "Can The
State kill its Citizens" Pub. by M L. J. Office
Madras.
1072
protester, the poor and the under-priviliged, the member of
minority groups or one who has turned tough because of
broken homes, parental neglect or other undeserved
adversities of childhood or later. And a sobering thought
which eminent judge and jurist M. C. Chagla told the country
over the national T.V. the other day judicial error leading
to innocent men being executed in not too recondite a
reality. Evidence in court and assessments by judges have
human limitations.
It is worth recalling that a Full Bench of the Madras
High Court in Athapa Goundan’s case (AIR 1937 Mad. 695)
sentenced him to death. He was duly executed as also several
others on the ratio of that ruling. This Full Bench decision
was, however, over-ruled 10 years later by the Privy Council
in 1947 P.C. 67. Had it been done before Goundan was
gallowed many judicial hangings could have been halted. But
dead men tell no tales and judicial ’guilt’ has no temporal
punishment.
Parenthetically, it may be right to observe, before we
conclude, that modern neurology has unrevelled through
research the traumatic truth that agressive behaviour, even
brutal murder, may in all but not negligible cases be traced
to brain tumour. In such cases cerebral surgery, not hanging
until he is dead, is the rational recipe. This factor is
relevant to conviction for crime, but more relevant to the
irrevocable sentence of death.
We allow the appeal in regard to appellants Nos. One
and Two and reduce their death sentence to one of life
imprisonment.
SEN, J.-I do not see, any reason to differ from the
view expressed by me in my dissenting opinion in Rajendra
Prasad’s case(’). I Still adhere to the view that it is not
within the province of the Court while dealing with an
appeal confined to sentence under Art 136, to curtail the
scope of death sentence under s. 302 I.P.C., 1860, nor is it
constitutionally or legally permissible for this Court while
hearing such an appeal to lay down that on grounds of
compassion and humanism the sentence of death on a
conviction for murder under s. 302, as a rule of universal
application, be substituted by a sentence of imprisonment
for life, irrespective of the gravity of the clime as the
surrounding circumstances i.e., virtually abolish the
extreme penalty. The question of abolition of capital
punishment is a difficult and controversial subject, long
and hotly debated and it has evoked during the past two
centuries strong conflicting views, as was pointed out by me
in Rajendra Prasad’s case (supra). The question whether
(1) [1979] 3 S.C.R. 78
1073
the scope of death sentence should be curtailed or not is
for the Parliament to decide. The matter is essentially of
political expediency and, as such, it is the concern of the
statesman and, therefore, the domain of the Legislature, and
not the Judiciary.
Section 302 I.P.C., 1860, confers upon the Court a
discretion in the matter of the punishment to be imposed for
an offence of murder and the Court has to choose between a
sentence of death and a sentence of imprisonment for life;
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while under s. 354(3) Cr.P.C., 1973, the Court is enjoined
with a duty to record ’special reasons’ in case the extreme
penalty is awarded. But the question whether the death
sentence should be awarded or not must, in my view, be left
to the discretion of the Judge trying the accused and the
question of sentence must depend upon the facts and
circumstances obtaining in such case. When a sentence of
death is passed it is subject to confirmation by the High
Court under s. 366(1) of the Code and the accused also has
right of appeal to the High Court under 5. 374(2) against
the sentence. Thereafter an appeal lies to this Court by
special leave under Art. 136 on the question of sentence. It
would therefore, be manifest that it is neither feasible to
define nor legally permissible for this Court to limit or
circumscribe the connotation of the expression ’special
reasons’ occurring in s. 354(3) of the Code so as to bring
about a virtual abolition of the death sentence. E
With greatest respect, the majority decision in
Rajendra Prasad’s case (supra) does not lay down any legal
principle of general applicability. A decision on a question
of sentence depending upon the facts and circumstances of a
particular case, can never be regarded as a binding
precedent, much less ’law declared’ within the meaning of
Art. 141 of the Constitution so as to bind all Courts within
the territory of India. According to the well-settled theory
of precedents every decision contains three basic
ingredients:
(i) findings of material facts, direct and
inferential. An inferential finding of facts
is the inference which the Judge draws from
the direct, or perceptible facts,
(ii) statements of the principles of law
applicable to the legal problems disclosed by
the facts; and
(iii)judgment based on the combined effect of (i)
and (ii) above. H
for the purposes of the parties themselves and their
privies, ingredient No. (iii) is the material element in the
decision for it determines
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finally their rights and liabilities in relation to the
subject matter of the action. It is the judgment that estops
the parties from reopening the dispute. However, for the
purposes of The doctrine of precedents ingredient No. (ii)
is the vital element in the decision. This indeed is the
ratio decidendi(l). It is not every thing said by a Judge
when giving judgment that constitutes a precedent. The only
thing in a Judge decision binding party is the principle
upon which the case is decided and for this reason it is
important to analyse a decision and isolate from it the
ratio decidendi. In the leading case of Qualcast
(Wolverhampton) Ltd. v. Haynes(2) it was laid down that the
ratio decidendi may be defined if a statement of law applied
to the legal problems raised by the facts is found, upon
which the decision is based. The other two elements in the
decision are not precedents. The judgement if not binding
(except directly on the parties themselves), nor are the
findings of facts. This means that even where the direct
facts of an earlier case appear to be identical to those of
the case before the Court, the Judge is not bound to draw
the same inference as drawn in the earlier case
One would find that in the decision in Rajendra
Prasad’s case, there are no rationes decidendi, much less
any ratio decidendi. In a minority opinion, I emphasised the
need for judicial restraint and the duty to avoid
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encroachment on the powers conferred upon Parliament. In my
view, the assessment of public opinion on this difficult
an(l complex question was essentially a legislative, not a
judicial, function. The majority expressed their personal
distaste for the capital punishment, butteressed by the
belief that it served no useful purpose. They asserted that
the capital punishment was morally unacceptable to the
contemporary society and found it shocking to their
conscience and sense of justice. The deliberate
extinguishment of human life by the State for an offence of
murder, they reasoned on metaphysical theories of
punishment, was a denial of human dignity. They concluded by
stating that the death penalty was usually inflicted only on
a few, i.e., the poor and down-trodden who are outcastes of
a society which led to the irresistible inference that the
punishment was not fairly applied. This may be a
’progressive’ stance, which is out of place in a judicial
pronouncement, which ought to be based on the facts and
circumstance of the case and the law applicable. But the
professed view does not stem from a firm belief in dignity
of human life for they themselves advocate the death penalty
for certain classes of offenders,
(I) R. J. Walker & M. G. Walker, The English Legal System,
Butterworths 1972 3rd Edn., pp. 123-124.
(2) L. R. [1959] A.C. 743.
1075
namely (I) white-collar offenders, (2) anti-social
offenders, and (3) hardened murderers. This show that the
majority was not against the capital punishment in
principle. On the facts before them they commuted the
sentence of death to a sentence of imprisonment for life,
and the decision cannot, therefore, be construed as laying
down a ratio decidendi.
Testing the majority decision in Rajendra Prasad’s case
(supra) in light of theory of precedents as expounded above
it seems to me clear that it does not lay down many legal
principle applied to any legal problem disclosed by the
facts and, therefore the majority decision cannot be said to
have ’declared any law’ within the meaning of Art. 141 so as
to bind all Courts in the country. General observations made
in the context of sentencing jurisprudence will have to be
regarded as the view of the Judge/Judges concerned-and not
’law declared by this Court under Art. 141 of the
Constitution. And attempt to limit or circumscribe the
connotation of ’special reasons’ mentioned in s. 354(3) of
the Code of Criminal Procedure by indulging in
classification of murders such as white collar offences and
non- white collar offences or laying down so-called
guidelines for imposition of the extreme penalty, would
amount to unwarranted abridgement of the discretion legally
vested in the trial court and constitutionally upheld by
this Court.
If the general observations on sentencing jurisprudence
made in Rajendra Prasad’s case (supra) are to be regarded as
’law declared By this Court’ within the meaning of Art. 141
so as to bind all Court’s in the country, then the
observation or the so-called guideline as to the effect "
’special reasons’ necessary for imposing death penalty must
relate, not to the crime as such but to the criminal"
occurring in the majority judgment, it must be pointed out,
if I may say so, with respect, would be unwarranted and
contrary to s. 302 of the Indian Penal Code read with s.
354(3) of the Code of Criminal Procedure. Section 302 of the
Indian Penal Code gives a choice while s. 354(3) of the Code
merely requires ’special reasons’ to the indicated for
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imposing the death penalty. Nothing is stated whether the
’special reasons’ should relate to the criminal or the
crime. In the absence of any specific indication in that
behalf ’special reasons’ would relate both to the crime and
the Criminal. Previously, perhaps more attention was being
paid to the nature, gravity and the manner of committing the
crime, though extenuating factors concerning the criminal,
his age, criminal tendencies etc. were not ignored. In the
majority judgment in Rajendra Prasad’s case (supra), nothing
new has been said except that more emphasis on factors
concerning the criminal is indicated. But in the great
enthusiasm for doing so, the pendulum has swung to
1076
the other extreme and the guideline given is that the
’special reasons’ must relate "not to the crime as such but
to the criminal" for which there is no warrant in s. 354(3)
of the Code of Criminal Procedure.
I may also venture to say, the obsession to get the
death penalty abolished from the Statute Book, i.e., Indian
Penal Code, 1860, is so great that an interdict against it
is surprisingly spelt out from the Constitution itself
because right to life has been regarded as ’very valuable,
sacrosanct and fundamental’ therein, though in Jagmohan
Singh’s case(1) this Court by unanimous judgment of five
Judges held that the death penalty and the judicial
discretion vested in the Court regarding its imposition on
an accused are constitutionally valid. That decision, it may
incidentally be pointed out, has adverted to the "well-
settled principles" which have all these years governed the
exercise of proper judicial discretion. In my view,
therefore, so long as the extreme penalty is retained on the
Statute Book, it would be impermissible for any Judge to
advocate its abolition in judicial pronouncements. The forum
for that is elsewhere.
There is increasing concern today about the judiciary
transgressing its limits by usurping the function of the
legislature. Many critics think that the courts should
’apply’, but not ’make’, the law and that they should not
intrude into the field of policy-making. The problem appears
to the also acute in the United States of America. In a
recent article, a learned writer(2) views the complex
situation with deep concern, stating:
"Today many Americans do resent all ever-more
activist judiciary. Beware, warns a vocal group of
scholars: The Imperial Presidency might have faded, but
now an Imperial Judiciary has the Republic in its
clutches’’ (Emphasis supplied) ."
He then goes on to say:
"For all their power, Judges remain remarkably
unaccountable and unknown."
Mr. Justice Robert Jackson, Associated Justice of‘ the
Supreme Court of the United States in the Roosevelt and
Truman years, delineates the correct picture:
"We are not final because we are infallible, but
we are infallible because we are final."
In the end, that means relying on Judges themselves to
exercise self restraint.
(1) [1973] 1 S. C. C. 20
(2) Evan Thomas, "Have the Judges Done Too Much?" Time
Essay, Time January 22, 1979, pp. 49-SO.
1077
Reverting to the appeal before me, I cannot say that
the award of death sentence to any of the two appellants,
Dalbir Singh and Kulwant Singh was not proper or uncalled
for. Though the dispute was over the ’turns of water’, that
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would hardly furnish any jutification for the commission of
the pre-planned triple murder. The appellant Dalbir Singh
fired two gun shots hitting the deceased Sardul Singh on the
chest, resulting in his instantaneous death. When the
deceased Jagir Singh stooped forward to lift Sardul Singh,
he was fired at by the appellant Kulwant Singh with his gun
which hit him on the forehead. This also resulted in his
immediate death. When the deceased Piara Singh came forward
to rescue Jagir Singh, both the appellant Kulwant Singh and
Dalbir Singh again fired at him from their guns, as a
result of which he fell down and succumbed to his injuries
on the spot. Thereafter, both the appellants continued
firing their guns at the complainant’s party and Kapoor
Singh PW 14 and no other alternative but to bring out his
licensed gun from his house. Thereupon, both sides started
firing and a number of persons sustained gun shot injuries
on their person. Baga Singh, lambardar of the village in the
midst of this firing appeared on the scene and made an
attempt to pecify both the sides, but he also received gun
shot injuries as a result of which he died two days later.
The dastardly act of the appellants resulted in the loss of
three precious lives. That leaves out of account the fourth,
Baga Singh, who made a dying declaration that he had also
been shot by the appellants, but the High Court felt that he
might have been caught between the cross-fire which
subsequently ensued after the three had fallen. These were
nothing but intentional, coldblooded and brutal murders.
In my view, the High Court was justified in confirming
the death sentences passed under s. 368(a) of the Code,
being satisfied that there were "special reasons" within the
meaning of s. 354, sub-s. (3) of the Code of Criminal
procedure, 1973, I would say that on the facts and
circumstances of the case, the award of death sentence to
the two appellants was neither ’erroneous in principle’ nor
was ’arbitrary or excessive’, or ’indicative of an improper
exercise of discretion’. nor my part, I have no sympathy for
these trigger-happy gentlemen and the sentence imposed on
them is well-merited.
I would, therefore, dismiss the appeal leaving the
appellants to Executive clemency.
N.V.K Appeal allowed.
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