Full Judgment Text
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PETITIONER:
BACHAN SINGH S/O SAUDAGAR SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT04/05/1979
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
KRISHNAIYER, V.R.
CITATION:
1980 AIR 267 1980 SCR (1) 645
1980 SCC (1) 754
ACT:
Penal Code-Death penalty-When can be imposed-Judges-If
have power to reduce sentence of death to one of life
imprisonment-Rajendra Prasad’s case-If a valid precedent.
HEADNOTE:
^
HELD: (Per Sarkaria, J.)
The records of this case be submitted to the Hon’ble
Chief Justice for C constituting a larger Bench which would
resolve the doubts, difficulties and inconsistencies pointed
out by Kailasam J. in his order, particularly in its last
paragraph.
(Per Kailasam, J.)
1. Before the amendment of Section 367(5) of the Code
of Criminal Procedure by the Criminal Procedure Code
(Amendment) Act 1955 (Act 26 of 1955) was introduced, the
normal sentence for an offence of murder was death and the
lesser sentence was the exception. After the introduction of
the amendment it was not obligatory for the court to state
the reasons as to why the sentence of death was not passed.
By the amendment the discretion of the court in deciding
whether to impose a sentence of death or imprisonment for
life became wider. The court was bound to exercise its
judicial discretion in awarding one or the other of the
sentences. By the introduction of Section 354(3) of the Code
of Criminal Procedure 1973, the normal sentence is the
lesser sentence of imprisonment for life and if the sentence
of death is to be awarded, special reasons will have to be
recorded. In other words, the court, before imposing a
sentence of death, should be satisfied that the offence is
of such a nature that the extreme penalty is called for.
[1203A-C]
2. In a number of decisions, this court has reiterated
the position that under section 354(3) of the 1973 Code, the
court is required to state the reasons for the sentence
awarded and in the case of sentence of death special reasons
are required to be stated. [1203D]
Balwant Singh v. State of Punjab [1976] 2-S.C.R. 684;
Ambaram v. The State of Madhya Pradesh [1976] 4 S.C.C. 298;
and Sarveshwar Prasad Sharma v. Slate of Madhya Pradesh
[1978] I S.C.R. 560 referred to.
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In Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541 in
which the constitutional validity of imposition of death
sentence was challenged, this Court held that the
deprivation of life is constitutionally permissible if that
is done according to the procedure established by law and
that it cannot be held that capital sentence is per se
unreasonable and not in the public interest. It was also
held that the Judges are invested with very wide discretion
in the matter of fixing the degree of punishment and that
discretion in the matter of sentence is liable
20-409SCI/79
1194
to be corrected by superior courts, that exercise of
judicial discretion on well recognised principles is, in the
final analysis, the safest possible safeguard for the
accused. [1204C-D]
4. Section 367(5) of the Criminal Procedure Code which
came into force on April 1, 1974, after the judgment in
Jagmohan Singh’s case, provides that the judgment shall
state the special reasons where a sentence of death is award
ed for an offence punishable with death or in the
alternative with imprisonments life or imprisonment for a
term of years. The requirement that courts should state the
special reasons for awarding the death sentence would
indicate that the normal sentence for an offence punishable
either with death or with imprisonment for life is
imprisonment for life and that if the court considered that
sentence of death is appropriate on the particular facts of
the case it should give special reasons. [1204 G-H]
5. But in Rajendra Prasad v. State of U.P. A.I.R. 1979
S.C. 916, the majority of a Division Bench of this Court
held that "special reasons" necessary for imposing the death
penalty must relate not to the crime as such but to the
criminal. The death sentence can be awarded only in certain
restricted categories where a crime holds out a durable And
continuing threat to social security in the setting of a
developing country and poses a grave peril to society’s
survival and when an economic offender intentionally mixes
poison in drugs and knowingly and intentionally causes death
for the sake of private profit and so on. The decision is in
many respects contrary to the law laid down by the
Constitution Bench of this Court in Jagmohan Singh’s case.
The court in this case has proceeded to make law as regards
the conditions that are necessary for imposition of a
sentence of death under section 302 I.P.C. and to
canalisation of sentencing discretion and has embarked on
evolving working rules on punishment bearing in mind the
enlightened flexibility of social sensibility. In doing so
the Court has exceeded its power conferred on it by law.
Courts have no power to legislate and to frame rules to
guide the infliction of death penalty. [1205C-F]
6. So far as the enacted law is concerned, the duty of
the court is to interpret and construe the provisions of the
enactment. Courts must take it absolutely for granted that
the Legislature has said what it meant and meant what it has
said. Judges are not at liberty to add or to take from or
modify the letter of the law simply because they have reason
to believe the true sentence legis is not completely or
correctly expressed by it. Though the courts are free to
interpret, they are not free to overlook or disregard the
constitution and the laws.. [1207B-D]
7. It is for the court to administer the law as it
stands. In awarding sentence or death, the court has to take
into consideration the various aspects regarding a crime and
the reason for committing the crime and pass the appropriate
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sentence, and if it is death sentence, to give reasons as
required by the Code of Criminal Procedure. If in deciding a
case on particular facts a principle is stated, it would be
binding as a precedent. If courts resort to rule making, it
will not be binding as a precedent. If the courts are to
embark on rule-making the question arises whether the
responsibility can be undertaken by a bench of three Judges
with majority of 2: 1. There is no machinery by which the
court could ascertain the views of the various cross-
sections of the society, which is a pre-requisite before any
law-making is resorted to. In.
1195
Rajendra Prasad’s ease the court embarked on framing rules
prescribing conditions for the imposition of death sentence.
The view of the majority that in awarding a sentence the
criminal is more important than the crime is not warranted
by the law as it stands today. The general principles laid
down in Rajendra Prasad’s case are not the ratio decidendi
of the case. The enunciation of the reasons or the principle
on which a question before a court has been decided is alone
binding as a precedent. The concrete decision alone is
binding between the parties to it but it is the abstract
ratio decidendi ascertained on a consideration of the
judgment in relation to the subject matter of the decision
which alone bas the force of law and which, when it is clear
what It was, is binding. Statements which are not necessary
to the decision, which go beyond the occasion and lay down a
rule that is unnecessary for the purpose in hand have no
binding authority on another court, though they may have
merely persuasive efficacy. Decisions upon matters of facts
are not binding on any other court [1207G-H; 1202D-F]
Tribhuvandas v. Ratilal A.I.R. 1968 S.C. 372 = 70 Bom.
L. R. 73; Amritsar Municipality v. Hazara Singh - A.I.R.
1975 S.C. 1087; and Quinn v. Leatham-1901 A.C. 495 at p.
506; referred to.
8. In Rajendra Prasad’s case the conclusion of the
majority was that as nothing on record suggested that the
accused was beyond redemption and since the record did not
hint that such an attempt was made inside the prison there
was no special reason to award death sentence. The utmost to
which this case can be considered as an authority is that if
in similar circumstances when a person stabs two persons
several times it would not furnish special reasons for
inflicting the death penalty. In the second case
(Kunjukunju) the majority was of the view that the test
should be whether the accused was a social security risk
altogether beyond salvage by therapeutic life sentence was
neither in accordance with the requirements of the Code of
Criminal Procedure nor law laid down by the Constitution
Bench. Therefore, it cannot be followed as a precedent.
Similarly, in the third case (Dubey’s case) also the
majority view that it would be illegal to award capital
punishment without considering the correctional
possibilities inside the prison and that the accused being
young and of malleable age and other circumstances bearing
on the offender called for the lesser sentence is not in
conformity with the decisions of this Court or the
requirements of the law. [1213H; 1214A-H]
9. In the instant case the appellant was released after
undergoing a term of imprisonment for the murder of his
wife. After release he lived with his cousin. When his
cousin’s son and wife objected to his stay with the family
he inflicted a fatal injury on the son and two daughters of
his cousin when they were asleep and caused grievous injury
on another daughter The courts below came to the conclusion
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that the appellant acted in a very cruel manner. They have
rightly characterised the offence as heinous and held that
the only appropriate sentence was the extreme penalty of
death. The trial court and the High Court were right in
their conclusions. [1215 C-E]
[Rajendra Prasad’s case cannot be treated as a binding
precedent yet as it is a decision of a division bench of
this Court. The papers were directed to be placed before the
Hon’ble the Chief Justice for constituting a larger bench to
decide the case.]
1196
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
273 of 1979.
Appeal by Special Leave from the Judgment and Order
dated 14-8-1978 of the Punjab and Haryana High Court in Crl.
A. No. 234/78 and Murder Reference No. 3/78.
H. K. Puri, Amicus Curiae for the Appellant.
R. S. Sodhi and Hardev Singh for the Respondent.
The following Judgments were delivered:
SARKARIA, J.-While reserving my own opinion on the
various question raised in this case including the one with
regard to the scope, amplification and application of
Section 354(3) of the Code of Criminal Procedure, 1973, I
would, in agreement with my learned brother, direct that the
records of this case be submitted to the Hon’ble the Chief
Justice, for constituting a larger Bench which would resolve
the doubts, difficulties and inconsistencies pointed out by
my learned brother in his order, particularly, in its last
paragraph.
KAILASAM, J.-This special leave petition is filed by
Bachan Singh son of Saudagar Singh from jail against the
conviction and sentence imposed on him by the High Court of
Punjab and Haryana. This Court ordered notice to the State
and heard the counsel for the petitioner and the State and
granted special leave.
The appellant was tried by the Sessions Judge,
Ferozepur, on three charges of causing the death of three
persons Desa Singh the son and Durga Bai and Veeran Bai
daughter of Hukam Singh and causing grievous injuries to
Vidya Bai, another daughter of Hukam Singh, at about 12
midnight between the 4th and 5th July, 1977, in the
courtyard of the house of Hukam Singh. The learned Judge
found the appellant guilty of the three charges under s.
302, I.P.C. and sentenced him to death on each count. He
also found him guilty under s. 326, I.P.C., for causing
grievous hurt with a sharp cutting weapon to Vidya Bai and
sentenced him to three years’ rigorous imprisonment and a
fine of Rs. 500/-. Against the convictions and sentences
passed the appellant preferred Criminal Appeal No. 234 of
1978 to the High Court. The appeal along with the Reference
No. 3 of 1978 made by the trial Judge for confirmation of
sentence of death were heard together by the High Court. The
High Court rejected the appeal and confirmed the convictions
and sentences passed on the appellant.
The case for the prosecution briefly is that the
appellant Bachan Singh was convicted under s. 302 I.P.C. for
the murder of his wife
1197
and sentenced to imprisonment for life. After undergoing the
term of imprisonment he was released. After the release he
lived with his cousin(?) Hukam Singh P. VV. 5 for about six
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months. Hukam Singh’s wife and son objected to the appellant
living in their house. A few days prior to the occurrence
Hukam Singh and his wife went to Nainital in connection with
the marriage of their son Desa Singh. On the night of the
occurrence 4th July, 1977 Desa Singh son of Hukam Singh,
Durga Bai, Veeran Bai and Vidya Bai the daughters of Hukam
Singh were in the house. After taking their meals the, three
daughters slept in the inner courtyard, Durgabai in one cot
and Veeran Bai and Vidya Bai in another cot near each other.
Desa Singh, the son of Hukam Singh, and the appellant slept
in the outer courtyard on two separate cots near each other.
At about midnight Vidya Bai P.W. 2 was awakened by the alarm
and saw the appellant inflicting Kulhari (axe) blow on the
face of her sister Veeran Bai. When Vidya Bai tried to get
up the appellant gave Kulhari blow on her face and ear. She
was unable to speak and fell unconscious. Diwan Singh P.W.
12 who was sleeping at a distance of 3/4 Karms from the cots
of Desa Singh and the appellant also woke up on hearing a
shriek. He saw the appellant striking Desa Singh with a
Kulhari. He raised an alarm and Gulab Singh P.W. 3 who was
sleeping at a distance of SO feet from the cot of Desa Singh
woke up and saw the appellant hitting Desa Singh on the neck
with a Kulhari. On an alarm being raised by the witnesses
the appellant threw the Kulhari in the courtyard and ran,
away. Gulab Singh and Diwan Singh P.Ws. 3 and 12 gave a
chase to the appellant but could not apprehend him. Soon
after Kanshi Singh P.W. 4 and others arrived at the place of
occurrence and heard from the witnesses the detail, of the
occurrence.
A tractor was brought in which Durga Bai, Veeran Bai
and Vidya were taken to the hospital at Fazilka. The Doctor
who examined the dead bodies and the injured person gave the
necessary certificates. He also sent information to the
A.S.I. P.W. 13 who went to, the hospital and recorded the
statement from P.W. 12 on the basis of which the F.I.R. was
recorded at the police station at 4-20 a.m. On 5th July,
1977. The police officer conducted the inquest and preceded
with his investigation. The courts below found that the
medical evidence fully corroborated the testimony of the
injured eye-witness P.W. 2 and two other eye-witnesses P.Ws.
3 and 12 and found that the prosecution had established its
case beyond reasonable doubt.
The trial court and the High Court on a consideration
of the evidence found that P.W. 2 Vidya Bai the daughter of
Hukam Singh
1198
who was sleeping along with her sisters in the house and
suffered serious injuries, saw the attack by the appellant
when she woke up. There is evidence that it was a moonlit
night and there was sufficient light by which the assailant
would have been identified. The trial court accepted the
evidence of P.W. 2. The High Court also found that the
evidence of P.W. 2 is trustworthy. Both the courts below
also relied on the testimony of the other two eye-witnesses
P.Ws. 3 and 12. P.W. 3 Gulab Singh was sleeping at a
distance of 50 Karmas and got up after hearing the alarm and
rushed to the scene. P.W. 12 was sleeping at a distance of
15 feet of Desa Singh. The trial court as well as the High
Court accepted the testimony of the two eye-witnesses S
P.Ws. 3 and 12. On a consideration of the evidence of the
eye-witnesses the High Court observed that the "evidence
provided by the eye-witnesses is of very high order in the
case and was rightly accepted by the learned trial Judge."
We have no hesitation in agreeing with the concurrent
findings of the courts below and holding that the
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prosecution has proved beyond all reasonable doubt that the
appellant caused the death of the three deceased Desa Singh,
Durga Bai and Veeran Bai and grievous hurt to Vidya Bai P.W.
2.
Regarding the sentence, the High Court observed "The
objection by Desa Singh, his mother and other family members
was of a triffing nature on which the appellant acted in a
very cruel manner. The victims had no cause to suspect’ the
intentions of the appellant and went to sleep. Taking
advantages of the situation, when the victims could not
defend, the appellant killed three and seriously wounded the
fourth. It was by sheer luck that Vidya Bai survived. The
manner in which the appellant perpetrated these crimes by
killing these persons in their sleep is heinous. Under these
circumstances, the case of the appellant for reduction of
the sentence cannot be considered and in our view the
sentence awarded by the learned trial Judge was the only
appropriate sentence."
The crime is diabolic and very cruel. Hukam Singh, a
cousin, accommodated the appellant in spite of the protests
of his wife and son. While enjoying the hospitality at the
dead of night when nobody had any suspicion the appellant
committed in the most dastardly manner the crime. Desa Singh
was sleeping in a cot by the side of the appellant. The
appellant at the dead of night while the others were
sleeping unsuspectedly hacked three persons to death. It is
only providential that the third daughter Vidya Bai escaped.
The crime in our view is one of the foulest that could be
imagined and we are in entire agreement with the courts
below about their assessment of the gravity of the crime-the
only question for consideration is whether
1199
the facts found would be special reasons for awarding the
death sentence as required under sec. 354(3) of the Code of
Criminal Procedure 1973.
Section 302 I.P.C. and sub-sec. (3) of section 354 of
the Cr. P.G 1973 deal with the imposition of death sentence.
Section 302 I.P.C. provides:-
"Whoever commits murder shall be punished with
death, or imprisonment for life, and shall also be
liable to fine."
Sub-sec. (3) of sec. 354 of the Code of Cr. Procedure,
1973, enacts.
"When the conviction is for an offence punishable
With death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the
Judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the
special reasons for such sentence."
Before the amendment of sec. 367(S) Cr. P.C. by the Criminal
Procedure Code (Amendment) Act, 1955 (Act XXVI of 1955)
which came into force on 1st January, 1965, on a conviction
for an offence punishable with death if the Court sentenced
the accused to any punishment other than death, the reason
why sentence of death was not passed had to be stated in the
judgment. Section 367(5) of the Code of Criminal Procedure
before its amendment by Act 26 of 1955 provided that "if the
accused is convicted of an offence punishable with death,
and the Court sentences him to any punishment other than
death, the Court shall, in its judgment state the reasons
why sentence of death was not passed." This sub-section was
construed before the Amendment Act, Act 26 of 1955 as
meaning that the extreme sentence is the normal sentence and
the mitigated sentence is the exception. In Dalip Singh v.
State of Punjab,(1) it was held that in a case of murder,
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the death sentence should ordinarily be imposed unless the
trying Judge for reasons which should normally be recorded
considers it proper to award the lesser penalty. In Vadivelu
Thevar v. The State of Madras,(2) this Court expressed its
view that the question of sentence has to be determined, not
with reference to the volume or character of the evidence
adduced by the prosecution in support of the prosecution
case, but with reference to the fact whether there are any
extenuating circumstances which can be said to mitigate
(1) A.I.R.1953 S.C.364
(2) A.I.R.1957 S.C.6I4.
1200
the enormity of the crime. If the Court is satisfied that
there are such mitigating, circumstances, only then, it
would be justified in imposing the lesser of the two
sentences provided by law. These two cases were rendered in
relation to offences which were committed before the
Criminal Procedure Code Amendment Act 26 of 1955 was
enacted. The law therefore prior to the amendment was that
unless there are extenuating circumstances the punishment
for murder should be death and not imprisonment for life.
By the Amendment Act 26 of 1955 a new sub-section, sub-
section (5), was substituted for the former sub-section (S)
by Act 26 of 1955 which does not contain the provision
making it incumbent for a Judge to record his reasons for
imposing a lesser penalty. After the amendment which omitted
the provision requiring the recording of reasons for
imposing the lesser penalty, the Court is not under a
statutory duty to record the reasons. Still as the Courts
have to impose one of the two penalties, namely death or
imprisonment for life, the Courts will have to exercise
their judicial discretion in deciding which of the two
penalties should be imposed. The result is that after the
amendment though the Court is not required to record the
reasons for imposing the lesser penalty it was bound to
exercise its discretion judicially. To show that the
discretion has been judicially exercised, reasons are given
for imposing the particular sentence. This makes it
necessary for the court to give its reasons for imposing the
particular sentence though by the Amending Act the court was
not required to‘ give reasons for not imposing any
punishment other than death. The effect of the amendment has
been stated by this Court in Raghubir Singh v. State of
U.P.,(’) that after the amendment of section 367(S),
Criminal Procedure Code, by Act 26 of 1955 the discretion of
the court in deciding whether to impose the sentence of
death or of imprisonment for life has become wider.
By the Code of Criminal Procedure, 1973 (Act 2 of 1974)
subsection (3) to section 354 was introduced regarding the
contents of the judgment relating to imposition of a
sentence of death or imprisonment for life or imprisonment
for a term of years.
Sub-sec. (3) which deals with the conviction for an
offence punishable with death or in the alternative with
imprisonment for life or for a term of years in sentencing a
person on conviction for such an offence the judgment is
required to state the reasons for the sentence awarded and
in the case of sentence of death the special reasons for
such sentence. When the court in its discretion imposes
either a sentence
(1) [1972] 3 S.C.C.79
1201
of death or imprisonment for life or for imprisonment for a
term of years, the Court is required to record reasons for
imposing one or the other sentence which it can legally
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impose. As the Court has a discretion to award a sentence of
death or imprisonment for life or imprisonment for a term of
years and as the discretion is very wide the law requires
that reasons shall be stated for awarding one or other of
the sentences. In the case of an offence under sec. 132,
I.P.C., the punishment provided for is death or imprisonment
for life or imprisonment for 10 years and fine. There are
other offences like the one under s. 131 I.P.C. which is
punishable with imprisonment for life or imprisonment for 10
years and fine. Sections 121(a), 122, 125, 128, 130, 131 IPC
and other sections provide for the punishment of
imprisonment for life or imprisonment for a term of years.
In such cases under s. 354(3) the Court is required to state
reasons why one or other of the sentences is imposed. In the
case of offences punishable with death the sub-section
requires that special reasons for imposing such sentence,
should be given. This requirement makes it clear that where
the punishment provided for is death or imprisonment for
life the sentence that should be imposed as of rule should
be one cf imprisonment for life. But if the offence is of
such a grave nature that the court thinks the higher of the
penalties, namely the death sentence, should be imposed
special reasons should be given. Thus while the legislature
retained the imposition of death sentence it laid down that
if the court awarded the death sentence it should Furnish
special reasons. In Chapter 27 which relates to ’Judgments’
there are other sections which require that reasons should
be given for imposing or not imposing a particular sentence.
Sub-section (4) to s. 354 requires that when the conviction
is for an offence punishable with imprisonment for a term of
one year or more, but the Court imposes a sentence of
imprisonment for a term of less than three months, it shall
record its reasons for awarding such sentence. Such reasons
need not be recorded if the sentence is one of imprisonment
till the rising of the court or unless the case was tried
summarily under the provision of Cr. P.C. Section 361
requires that when the court could have dealt with (a) an
accused person under s. 360 or under the provisions of the
Probation of offenders Act, 1958, or (b) a youthful offender
under the Children Act, 1960. Or any other law for the time
being in force for the treatment, training or rehabilitation
of youthful offenders, but has not done so, it shall record
in its judgment the special reasons for not having done so.
This section also requires special reasons to be given if
the court has not dealt 1 with the accused under the
provisions mentioned The object of requiring the reasons to
be given regarding the sentence could be
1202
found in the Law Commission’s Report and the Report of the
Joint Parliamentary Committee. The Law Commission in Vol. I,
35th Report on the Capital Punishment expressed that a
considerable body of opinion is in favour of a provision
requiring tile Court to state its reasons for imposing the
punishment either of death or imprisonment for life. The
Commission was of the view that this would be a safeguard to
ensure that the lower courts examine the case as elaborately
from the point of view of sentence as from the point of view
of guilt and that it would 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 and that it would
increase the confidence of the people in courts by showing
that the discretion is judicially exercised. It would also
facilitate the task of High Court in appeal or in
proceedings for confirmation in respect of the sentence
(where the sentence awarded is that of death), or in
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proceedings in revision for enhancement of the sentence
(where the sentence awarded is one of imprisonment for
life). In its 41st Report on the Cr. P.C. the Law Commission
recommending the amendment also observed that there were
certain offences for which the Penal Code prescribes the
punishment as death or in the alternative life imprisonment
or imprisonment for a term of years and therefore the
amendment recommended should cover these cases also. The
Joint Committee of Parliament added that a sentence of death
is the extreme penalty of law and it is but fair that when a
court awards, that sentence in a case where the alternative
sentence of imprisonment for life is also available, it
should give special reasons in support of the sentence. For
giving effect to the recommendation of the Law Commission
and the Joint Committee of Parliament sub-section (3) to
section 354 was amended in the present form. The object the
amendment therefore is to insist on the lower courts to
examine the case as elaborately from the point of view of
sentence as from the point cf view of guilt and state its
reasons for imposing the sentence which would help the High
Court in discharging its functions particularly in
confirming a sentence of death or enhancing a sentence of
imprisonment for life to death. This object is further
sought to be achieved by the introduction of sub-section 2
to s. 235 which provides an opportunity of hearing the
accused on the question of sentence. The provision requiring
special reasons for awarding death sentence makes it also
clear that the normal sentence when punishment of death or
imprisonment for life could be awarded is only imprisonment
for life and if the court imposes death sentence it should
give special reasons.
1203
The development of law regarding the imposition of
death sentence call be summarised as follows. While before
the Amending Act 26 of 1955 was introduced the normal
sentence for an offence of murder was death and that the
lesser sentence is the exception, after the introduction of
sub-s.. (5) to s. 367 by Act 26 of 1955 it was not
obligatory for the Court to state the reasons as to why the
sentence of death was not passed. By the amendment the
discretion of the Court in deciding whether to impose a
sentence of death or imprisonment for life became wider. The
court was bound to exercise its judicial discretion in
awarding one or the other of the sentences. By the
introduction of s. 354(3) the normal sentence is the lesser
sentence of imprisonment for life and if the sentence of
death is to be awarded special reasons will have to be
recorded. In other words, the court before imposing a
sentence of death should be satisfied that the offence is of
such a nature that the extreme penalty is called for. The
decisions rendered by this Court after the introduction of
the amendment to S.354(3) by Act 2 of 1974 have reiterated
this position. In Balwant Singh v. State of Punjab(1) this
Court summing up the position observed that under s. 354(3)
of the Cr. P.C., 1973, the Court is required to state the
reasons for the sentence awarded and in the case of sentence
of death special reasons are required to be stated. It would
thus be noticed that awarding of the sentence other than the
sentence of death is the general rule now and only special
reasons, that is to say, special facts and circumstances in
a given case, will warrant the passing of the death
sentence. This view was reiterated by this Court in Ambaram
v. The State of Madhya Pradesh.(2) In Sarveshwar Prasad
Sharma v. State of Madhya Pradesh(3) it was observed that
this Court has in several cases indicated guidelines in this
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problem area of life and death as a result of judicial
verdict but none of these guidelines can be cut and dry nor
exhaustive and each case will depend upon the totality of
the facts and circumstances and other matters revealed.
The validity of imposition of death sentence was
challenged in the ground that the sentence puts an end to
all Fundamental Rights guaranteed by clauses (a) to (g) of
sub-clause (1) of Art. 19 of the Constitution and therefore
the law with regard to capital sentence is unreasonable and
not in the interest of the general public. It was further
contended that the discretion invested in the Judges to
impose capital punishment is not based on any standard or
policy required by the Legislature for imposing capital
punishment in preference to
(1) [1976]2 S.C.R. 684
(2) [1976]4 S.C.C. 298
(3) [1978]1 S.C.R. 560
1204
imprisonment for life. Further it was submitted that the
uncontrolled and unguided discretion in the Judges to impose
capital punishment or imprisonment for life is hit by Art.
14 of the Constitution. Lastly, it was contended that the
provisions of the law do not provide a procedure for trial
of factors and circumstances crucial for making the choice
between the capital penalty and imprisonment for life and
therefore Art. 21 is violated. A Constitution Bench of this
Court in Jagmohan Singh v. The State of U.P.(’) rejected all
these contentions. It was held that the deprivation of life
is constitutionally permissible if that is done according to
procedure established by law and that it cannot be held that
capital sentence is per se unreasonable or not in the public
interest. It was further held that the impossibility of
laying down standards is at the very core of the criminal
law as administered in India which invests the Judges with a
very wide discretion in the matter of fixing the degree of
punishment. That discretion in the matter cf sentence is
liable to be corrected by superior Courts. The exercise of
judicial discretion on well-recognised principles is, in the
final: analysis, the safest possible safeguard for the
accused. The challenge under Art. 14 was also negatived on
the ground that the facts and circumstances of a crime are
widely different, and, since a decision of the court as
regards punishment is dependent upon a consideration of all
the facts and circumstances, there is hardly any ground for
a challenge under Art. 14. The Court also negatived the plea
that the provisions of law do not provide a procedure for
trial of factors which are crucial for making the choice
between the capital penalty and imprisonment for life. The
Court rejected all the challenges against the award of death
sentence on the ground of violation of the provisions of the
Constitution. It also upheld the investment of wide
discretion in the matter of fixing the degree of punishment
on the Judges as the exercise of judicial discretion on
well-recognised principles is the safest possible safeguard
for the accused. The Constitution Bench delivered its
judgment on the 3rd October, 1972. Subsequently amendment to
the Code of Criminal Procedure, 1973, (Act 2 of 1974) came
into force on 1st April, 1974. The only change by the new
Act is the introduction of s. 367 (S) of the Criminal
Procedure Code which provides that the judgement shall state
the special reasons where a sentence of death is awarded for
an offence punishable with death or in the alternative with
imprisonment for life or imprisonment for a term of years.
The requirement that the courts should state the special
reasons for awarding the death sentence would indicate that
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the normal sentence for an offence punishable either with
death or with imprisonment for life is imprisonment for life
and that if the court considered
(1) [1973] 2 S C. R. 541
1205
that sentence of death is appropriate on the particular
facts of the case It should give special reasons. Apart from
the emphasis that the normal sentence is imprisonment for
life and that special reasons should be given for awarding
the death sentence there is no further alteration in the law
relating to awarding of the death penalty. As already
noticed the effect of the amendment was considered by this
Court in [1976] 2 S.C.R.: 684, [1976] 4 S.C.C. 298 and
[1978] 1 S.C.R. 560 (supra) and it was held that the
awarding of sentence other than the sentence of death is the
general rule now only special reasons, that is to say,
special facts and circumstances in a given case will warrant
the passing of the death sentence.
A recent decision of this Court Rajendra Prasad’s case
in Cr. As. Nos. 512, 511 and 513 of 1978 was delivered on
9th February, 1979.(1) The decision by the majority was
delivered by Krishna Iyer J. held that "special reasons"
necessary for imposing the death penalty must relate not to
the crime as such but to the criminal. It further held that
death sentence can be awarded only in certain restricted
categories The tests that are prescribed are to find out
whether the murderer holds out a terrible and continuing
threat to social security in the setting of a developing
country and poses a grave peril to society’s survival. The
other circumstances which would justify imposition of death
sentence are when an economic offender intentionally mixes
poison in drugs, professionally or wilfully adulterates
intoxicating substances injuriously, and knowingly or
intentionally causes death for the sake of private profit or
when a murderous band of armed dacoits intentionally derail
a train and large number of people die in consequence or
when the style of violence and systematic corruption and
deliberately planned economic offences by corporate top
echelons are often a terrible technology of knowingly
causing death. Likewise when a murderer is so hardened and
so blood-thirsty that within the prison and without, he
makes no bones about killing others or carries on a
prosperous business in cadavers, then he becomes a candidate
for death sentence.
I have read through the judgment of the Court with
utmost care. The decision is in many respects contrary to
the law laid down by the Constitution Bench of this Court in
Jagmohan Singh’s case. The Court has proceeded to make law
as regards the conditions that are necessary for imposition
of a sentence of death under s. 302 I.P.C. It has proceeded
to canalisation of sentencing discretion and has embarked on
evolving working rules on punishment bearing in mind the
enlightened flexibility of social sensibility. In doing so I
feel the court has exceeded its powers conferred on it by
law.
(1) [1979] 3 S.C.R 78
1206
To substantiate my statement, I proceed to give a few
extracts from the judgment. At the outset of the judgment it
is stated that the precise issue before it was "the
canalisation of the sentencing discretion in a competing
situation.. ...Therefore this jurisprudential exploration,
within the framework of s. 302 I.P.C., has become
necessitous, both because the awesome ’either/or’ of the
Section spells out no specific indicators and law in this
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fatal area cannot afford to be conjectural".. "The flame of
life cannot flicker uncertain; and so s. 302 I.P.C. must be
invested with pragmatic concreteness that inhibits ad
hominem responses of individual judges and is in penal
conformance with constitutional norms and world conscience."
"Within the dichotomous frame-work of s. 302 I.P.C., upheld
in Jagmohan Singh, we have to evolve working rules of
punishment bearing the markings of enlightened flexibility
and societal sensibility.".......... "Therefore, it is no
heresay to imbibe and inject the social philosophy of the
Constitution into the Penal Code to resolve the tension
between the Past and the Present."..... "That is the essay
we undertake here". "But if legislative undertaking is not
in sight judges who have to implement the code cannot fold
up their professional hands but must make the provision
viable by evolution of supplementary principles, even if it
may appear to possess the flavour of law-making".. . "This
Court’s tryst with the Constitution obligates it to lay down
general rules, not a complete directory, which will lend
predictability to the law vis-a-vis the community and guide
the judiciary in such a grim verdict as choice between life
and death."........ "Therefore, until Parliament speaks, the
court cannot be silent."........ "This Court must extricate,
until Parliament legislates, the death sentence sector from
judicial subjectivism and consequent uncertainty."......
"Having stated the area and object of investigation we
address ourselves to this grave penological issue purely as
judges deciding a legal problem, putting aside vie vs,
philosophical or criminological, one holds. But law, in this
area, cannot go it alone; and cross-fertilisation from
sociology, history, cultural anthropology and current
national perils and developmental goals and, above all
constitutional currents, cannot be eschewed."
The above are few of the passages in the "prolix and
diffuse" judgment as the learned Judge has chosen to call
it. The passages clearly indicate that the Court in the
absence of legislative undertaking has embarked on law
making as in its view the Judges cannot fold up their
professional hands but must make the provision viable by
evolution of supplementary principles, even if it may appear
to possess the flavour of law-making, and that until
Parliament speaks the Court
1207
cannot be silent. With utmost respect I feel that the courts
have no such power to legislate and to frame rules to guide
the infliction of death penalty.
The duty of the court so far as enacted law is
concerned, is to interpret and construe the provisions of
the enactment. By interpretation or construction is meant
the process by which the courts seek to ascertain the
meaning of the legislature through the medium of the
authoritative forms in which it is expressed. The courts
must take it absolutely for granted that the legislature has
said what is meant alld meant what it has said. Judges are
not at liberty to add or to take FRS or modify the letter of
the law simply because they have Cr reason to believe the
true sentence legis is not completely or correctly expressed
by it. (Salmod on Jurisprudence, 11th Ed. by Glanville
Williams, p. 153). The Constitution and the laws bind every
court in India and that though the courts are free to
interpret they are not free to overlook or disregard the
Constitution and the laws. As held in Young v. Bristol
Aeroplane Co. Ltd.(l) the Court is not entitled to disregard
the statutory provisions and to follow a decision of its own
when that provision was not present in its mind.
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It is equally beyond the functions of a Court to evolve
working rules for imposition of death sentence bearing the
markings of enlightened flexibility and social sensibility
or to make law by cross fertilisation from sociology,
history, cultural anthropology and current national perils
and developmental goals and, above all, constitutional
currents. I am of the view that it is the function of the
Parliament to frame laws consistent with the needs of the
society. If the grounds for award of a sentence of death has
to be more specifically stated than that it is found in the
Indian Penal Code and the Cr. P.C., it is for the Parliament
to do so. Various legislative measures were introduced but
were withdrawn from time to time. At present there is a Bill
before the Parliament. It is for the Parliament to clarify
the circumstances under which a sentence of death could be
awarded. It is for the court to administer the law as it
stands. In awarding sentence of death, the Court has to take
into consideration the various aspects regarding the crime
and the person that committed the crime and pass an
appropriate sentence and if it is death sentence to give
special reasons as required by the Cr. P.C. If in deciding a
case on particular facts a principle is stated it may be
binding as a precedent. If the Courts resort to rule making
it will not be binding as precedent. If the Courts are to
embark on rule making the question arises whether
[1] [1947] 1 K.B.718,
1208
the responsibility can be undertaken by a bench of 3 Judges
with a majority of 2 to 1. Is it permissible for another
bench to proceed to make laws and prescribe an entirely
different sets of rules ? There is no machinery by which the
Court could ascertain the views of the various cross
sections of the society which is a prerequisite before any
law making is resorted to.
The Court has embarked on framing rules prescribing
conditions for imposition of death sentence taking into
account "cross-fertilisation from sociology, history,
cultural anthropology and current national perils and
developmental goals, and above all, constitutional
currents". So far as constitutional currents are concerned
the Constitution Bench has upheld the validity of awarding
of the death sentence. The Court has proceeded on the basis
that the earlier decisions of this Court have taken into
account only the crime and not the criminal. The emphasis
according to the judgment should be on the criminal and not
on the crime. The mode of sentencing as envisaged in the
Penal Code and the Cr. P.C. requires that every fact that is
relevant to the determination of the sentence including the
crime, the criminal and other environmental circumstances
will have to be taken into account. The view of the learned
Judge that in awarding a sentence the criminal is more
important than the crime is not warranted by the law as it
stands today.
I will now refer to various points dealt with in the
judgment which are contrary to the decision of the
constitutional Bench.
Justice Krishna Iyer says: "The main focus of our
judgment is on this poignant gap in ’human rights
jurisprudence’ within the limits of the Penal Code,
impregnated by the Constitution. To put it pithily, a world
order voicing the worth of the human person, a cultural
legacy charged with compassion, an interpretative liberation
from colonial callousness lo life and liberty, a concern for
social justice as setting the sights of individual justice,
interest with the inherited text of the Penal Code to yield
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the goals desiderated by the Preamble and Articles 14, 19
and 21." The challenge to the award of the death sentence as
violative of Articles 19, 14 and 21 was repelled by the
Constitution Bench by holding that the death sentence is a
permissible punishment and that deprivation of life is
constitutionally permissible if that is according to
procedure established by law. Regarding laying down
standards in imposing the punishment the Court observed that
the impossibility of laying down standards is at the very
core of criminal law as administered in India which invests
the Judges with a very wide diseretion in the matter of
fixing the degree of punishment and that
1209
this discretion in the matter of sentence is liable to be
corrected by superior Courts. It was held that the exercise
of judicial discretion on well recognised principles is in
the final analysis, the safest possible safeguard for the
accused. Justice Krishna Iyer would comment on the
observations of the Constitution Bench above quoted as
follows: "The acceptance of the invulnerability of
discretionary power does not end the‘ journey: it
inaugurates the search for those ‘well-recognised
principles’ Palekar, J. speaks of in the Jagmohan case.
Incidental observations without concentration on the
sentencing criteria are not the ratio of the decision.
Judgments are not Bible for every line to be venerated,"
with respect I am unable to agree with the characterization
of Palekar J’s judgment as "incidental observations without
concentration on the sentencing criteria". At p. 559 of the
Reports Palekar J. Observes: In India this onerous duty is
cast upon Judges and for more than a century the judges are
carrying out this duty under the Indian Penal Code. The
impossibility of laying down standards is at the very core
of the criminal law as administered in India which invests
the Judges with a very wide discretion in the matter of
fixing the degree of punishment. That discretion m the
matter of sentence is, as already pointed out, liable to be
corrected by superior courts. Laying down of standards to
the limited extent possible as was done in the Model
Judicial Code would not serve the purpose." After
disapproving laying down of standards the learned Judge
proceeded "The exercise of judicial discretion on well-
recognised, principles is, in the final analysis, the safest
possible safeguard for the accused." (Emphasis supplied) The
learned Judge quoted with approval the view of this Court in
Budhan Chowdhary v. State of Bihar(1) which is as follows:-
"The judicial decision must of necessity depend on
the facts and circumstances of each particular case and
what may superficially appear to be an unequal
application of the law may not necessarily amount to a
denial of equal protection unless there is shown to be
present in it an element of intentional and purposeful
discrimination.-Further, the discretion of judicial
officers is not arbitrary and the law pro vides for
revision by superior courts of orders passed by the
subordinate courts. In such circumstances, there is
hardly any ground for apprehending any capricious
discrimination by judicial tribunals."
Palekar, J. continued "Crime as crime may appear to be
superficially the same but the facts and circumstances of a
crime are widely
(1) [1955] S. C. R. 1045
21-409SCI/79
1210
different and since a decision of the court as regards
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punishment is dependent upon a consideration of all the
facts, and circumstances, there is hardly any ground for
challenge under Article 14." At page 560 of the reports,
Palekar, J, explains the procedure that is followed by the
Courts which enables to bring into focus all the
circumstances that are relevant to be taken into account in
awarding the sentence. On a reading of the judgment of the
Constitution Bench I regard my inability to share the view
of Krishna Iyer J. that Palekar J’s observations are
incidental and without concentration. It may be noted that
the laying down of the standards which was deprecated is
being attempted in this decision.
Krishna Iyer J. would state "It is constitutionally
permissible to swing a criminal out of corporeal existence
only if the security of State and society, public order and
the interests of the general public compel that course as
provided in Art. 19(2) to (6)". This view again is
inconsistent with the law laid down by the Constitution
Bench which has held that deprivation of life is
constitutionally permissible if that is done according to
procedure established by law. Krishna Iyer J. has observed
that "no Code can rise higher than the Constitution and the
Penal Code can survive only if it pays homage to the suprema
lex. The only correct approach is to read into s. 302 I.P.C.
and s. 354(3) Cr. P.C., the human rights and human trends in
the Constitution. So examined, the right to life and to
fundamental freedoms is deprived when he is hanged to death,
his dignity is defiled when his neck is noosed and
strangled," the only change after the Constitution Bench
delivered its judgment is the introduction of s. 354(3)
which requires special reasons to be given if the court is
to award the death sentence. If without the restriction of
stating sufficient reasons death sentence could be
constitutionally awarded under the I.P.C. and Cr. P.C. as it
stood before the amendment, it is difficult to perceive how
by requiring special reasons to be given the amended section
would be unconstitutional unless the "sentencing sector is
made most restrictive and least vagarious". Krishna lyer J.
has held that "such extra ordinary grounds alone
constitutionally qualify as ’special reasons’ as leave no
option to the court but to execute the offender if State and
society are to survive. One stroke of murder hardly
qualifies for this drastic requirement, however gruesome the
killing or pathetic the situation, unless the inherent
testimony oozing from that act is irresistible that the
murderous appetite of the convict is too chronic arid deadly
that ordered life in a given locality or society or in
prison itself would be gone if this man were now or later to
be at large. If he is an irredeemable murderer, like a
blood-thirsty tiger, he has to quit his terrestrial
tenancy." The Constitution Bench dealing with the
1211
award of death sentence observed. "But some at least are
diabolical in conception and cruel in execution. In some
others where the victim is a person of high standing in the
country, society is liable to be rocked to its very
foundation. Such murders cannot be simply wished away by
finding alibis in the social mal-adjustment of the murderer.
Prevalence of such crimes speaks, in the opinion of many,
for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval by the
society." After referring to the Law Commission’s Report the
Court observed: "A very responsible body has come to the
conclusion after considering all the relevant factors. On
the conclusions thus offered to us, it will be difficult to
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hold that capital punishment as such is unreasonable or not
required in the public interest." I find it difficult to
reconcile the law stated by the Constitution Bench with the
view expressed by Krishna Iyer J.
The judgment delivered by Krishna Iyer J. for the Court
and the minority judgment of Justice A. P. Sen have dealt at
considerable length with various aspects and desirability or
otherwise of imposing a sentence of death. Tile controversy
over capital punishment is not new. For several centuries
the debate is going on. I am conscious that it is a highly
controversial subject on which much can be said on both
sides. Fortunately, for the Judges it is neither necessary
nor desirable to subscribe to one of the two views. All that
the Judges are expected to do is to administer the law as it
stands. In fact, if I am strong believer of abolition of
death sentence or supporter of ’life fol. life’ and ’tooth
for tooth’ doctrine I would have excused myself from
deciding a case involving confirmation of death sentence.
Justice Krishna Iyer has not concealed his abhorrence
at the infliction of death sentence. He pleads that death
sentence should be abolished. He has expressed his view in
unmistakable terms: "Every sombre dawn a human being is
hanged by the legal process, the flag of human justice shall
be hung half-mast". Again "The right to life and to
fundamental freedoms is deprived when he is hanged to death,
his dignity is defiled when his neck is noosed and
strangled". ...."The Indian cultural current also counts and
so does our spiritual chemistry, based on divinity in
everyone, catalysed by the Budha-Gandhi compassion".. "This
axiom is a vote against ’death’ and hope in ’life’." I have
great respect for the views of the learned Judge. He is
strongly espousing a cause but I feel embarrassed when I am
required to follow his views for I consider it is my solemn
duty to administer the law of the land as it stands.
According to my conception my duty is to administer the law
as it stands. It is not for me lo say what the law should
be. If I am satisfied that the trial Judge and the
1212
High Court have given special reasons as required under the
law it is my duty to confirm the sentence of death. Vide
observations of this Court in Ram Narain and ors. v. State
of U.P.(1) quoted with approval in Jagmohan’s case.
I do not feel it necessary to refer to the various
points dealt With by Krishna Iyer J. in his long and learned
’essay’. I have quoted in extenso from his judgment and also
from the judgment of the Constitution Bench in order to show
that the two views are irreconcilable and that I am bound to
follow the law laid down by the Constitution Bench. With
respect I find myself in complete agreement with the views
expressed by the Constitution Bench. I am therefore unable
to follow the decision of the Bench.
I have discussed the general principles laid down in
Rajendra Prasad’s case regarding the circumstances that are
necessary for the imposition of the death sentence. Apart
from being unable to agree with the guidelines prescribed, I
am of the view that the general principles laid down are not
the ratio decidendi of the case. The courts are not bound to
follow them. Halsbury’s Laws of England (3rd Ed. Vol. 22 at
p. 796) explains what ratio decidendi is. The enunciation of
the reason or principle on which a question before a court
has been decided is alone binding as a precedent. The
concrete decision alone is binding between the parties to
it, but it is the abstract ratio decidendi, ascertained on a
consideration of the judgment in relation to the subject
matter of the decision, which alone has the force of law and
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which, when it is clear what it was, is binding. Statements
which are not necessary to the decision, which go beyond the
occasion and lay down a rule that is unnecessary for the
purpose in hand have no binding authority on another court,
though they may have some merely persuasive efficacy.
Decisions upon matters of fact are not binding on any other
court. This Court has held that precedents which enunciate
rules of law form the foundation of administration of
justice under our system. (Tribhuvandas v. Ratilal).(2) It
has also been held in Amritsar Municipality v. Hazara
Singh(3) that the decisions of even the highest court on
questions of fact cannot be cited as precedents. Lord
Halsbury in Quinn v. Leathem(4) said that every judgment
must be read as applicable to the particular facts proved,
or assumed to be proved, since the generality of the
expressions which may be found there are not intended to be
expositions of the whole law, but governed and qualified by
the particular facts of the case in
(1) A. I. R. 1971 S. C. 757.
(2) A.I.R. 1968 S. C. 372=70 Bom. L. R. 73.
(3) A. 1. R. 1975 S. C. 1087
(4) 1901 A. . 495. at p. 506
1213
which such expressions arc to be found. The learned Judge
proceeds To observe "....a case is only an authority for
what it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow logically
from it. The courts are not bound by the observations in
decisions beyond the point actually decided. The courts can
say "We cannot know that the House of Lords would carry this
determination further than they have carried it". (per Best
C.J. in Fletcher v. Lord Sondes.(l)
Applying the principles above quoted, I will now
proceed to find out what are the points decided in the case
and to what extent it will be binding on courts. In Rajendra
Prasad’s case the three appeals in which death sentences
were imposed came up before the Court for consideration of
the question whether the death sentence awarded should be
confirmed or not. After appreciation of the facts of the
case the Court came to the unanimous conclusion that the
concerned accused have been found guilty of the offence of
murder and confirmed the conviction. Regarding the
imposition of the death sentence the majority was of the
view that there were no sufficient reasons for imposing the
extreme penalty while the minority differed from that
conclusion. The principle that can be derived in the case is
that on the facts and circumstances established in the case
there are not ’sufficient reasons’ for imposing the death
sentence. Only to this limited extent if at all is the
decision binding on the courts. It is common knowledge that
the facts are rarely similar in two cases. The root of the
doctrine of precedent is that alike cases must be decided
alike. Only then it is possible to ensure that the court
bound by a previous case decides the new case in the same
way as the other court would have decided it. It is all a
question of probabilities, but the probability that a court
will decide a new case in the same way as would the court
which decided one of the cases cited becomes less and less
as the differences between the facts of the two cases
increase.
As every judgment will have to be read as applicable to
the particular facts proved will refer to the facts found in
Rajendra Prasad’s case. The accused in Rajendra Prasad’s
case a youngman after some years served in prison, was
released on Gandhi Jayanti Day. Some minor incident ignited
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his latent feud and he stabbed Ram Bharosey and his friend
Mansukh several times and the latter succumbed. He was
sentenced to death by the Sessions Court which was confirmed
by the High Court. This Court applying the canons which it
had laid down came to the conclusion that as nothing on
record suggested that Rajendra Prasad was beyond redemption
and the record does not
(1) [1826] 3 Bing. 501 at p. 560
1214
hint that such an attempt was made inside the prison they
did not see any special reason to hang him out of corporeal
existence. As pointed out earlier I am unable to subscribe
to the canons laid down in the case. The utmost to which
this case can be considered as an authority is that if in
similar circumstances when a person’s latent feud gets
ignited and stabs two persons several times it would not
furnish special reasons for inflicting the extreme penalty.
In the second case relating to Kunjukunju the accused cut to
death the innocent wife and the immaculate kids in the
secrecy of night. The trial court as well as the High Court
found it was a deliberate and cold blooded act performed
with considerable brutality. The majority expressed its
opinion that if the crime alone was the criterion the
sentence was proper but if the criminal was the target it
was not proper. The Cr. P.C. requires the courts to take
into account the circumstances in which the crime was
committed, the particulars about the criminal and all
relevant circumstances relating to the commission of the
crime by the criminal. The trial court is required to give
reasons and they are to be scrutinised by the High Court on
a reference to it for confirmation of the death sentence.
The High Court also has to satisfy itself that there arc
special reasons for inflicting the extreme penalty. The view
of the majority that the test should be whether Janardanan
is a social security risk, altogether beyond salvage by
therapeutic life sentence is neither in accordance with the
requirements of the Cr.P.C. nor law laid down by this Court.
The decisions of this Court insist not only on a
consideration of the criminal but also the nature of the
crime and all other relevant circumstances. As the view
expressed in the case is not in conformity with the
decisions of this court it cannot be followed as a
precedent. At the most the decision may be taken as
authority that in similar circumstances the cutting to death
of the innocent wife and the immaculate kids in the secrecy
of the night may not amount to special reasons as required
under the Cr.P.C. In the third appeal the appellant flung
the vessels over the division of which the wrangle arose,
went inside the house, emerged armed, picked up all
altercation eventuating the young man (whose age was around
18 or 20) stabbing to death three members of the other
branch of the family. He chased and killed, excited by the
perverted sense of injustice at the partition. The majority
was of the view that it is illegal to award capital
punishment without considering the correctional
possibilities inside the prison. The court was of the view
that although the crime was attended with extraordinary
cruelty, the accused being young and malleable are and their
reasonable prospect of reformation and absence of any
conclusive circumstance that the assailant is a habitual
1215
murderer or given to chronic violence-these catena of
circumstances bearing on the offender call for the lesser
sentence. Here again it is difficult to agree with the test
applied for it is not in conformity with the decisions of
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this Court or the requirements of the law. If at all it may
be an authority only for the proposition that under
identical circumstances the stabbing of three persons by a
young man in an altercation when he was excited by a
perverted sense of injustice would not be special reasons
for awarding the extreme penalty.
In the case before us the facts are not identical with
any of the cases in the appeals. The appellant was released
after undergoing a term of imprisonment for the murder of
his wife. After release he lived with his cousin Hukam Singh
for about six months. The wife and son objected. On the
night of the occurrence when he was sleeping with Desa Singh
son of Hukam Singh in the outer courtyard and three
daughters of Hukam Singh in the inner courtyard at about
midnight the petitioner got up, inflicted fatal injuries on
the son Desa Singh and the two daughters Durga Bai and
Veeran Bai and caused grievous injuries to Vidya Bai while
they were sleeping. ’the trial court as well as the High
Court on a consideration of the entire facts regarding the
crime and the criminal came to the conclusion that the
appellant acted in a very cruel manner. The victims had no
cause to suspect the intentions of the petitioner and went
to sleep. Taking advantage of the situation, when the
victims could not defend, the appellant killed three and
seriously wounded the fourth. The courts below rightly
characterised the offence as heinous and in the
circumstances of the case they were of the view that the
only appropriate sentence is the extreme penalty. I have no
hesitation in agreeing with that conclusion. The facts of
the case may have some resemblance to Kunjukunju case in
that the accused in that case cut his innocent wife and the
kids under the secrecy of the night. But the other
circumstances namely his cold calculated and deliberate
murder of innocent children of Hukam Singh who had given
shelter to him when they were sleeping discloses that the
crime is an extremely brutal and heinous one calling for
imposition of death-sentence I agree with the trial Court
and the High Court and find ’special reasons’ required for
imposition of death has been clearly made out.
In the result I find myself unable to agree with the
reasoning or conclusion arrived at by this Court in Rajendra
Prasad’s case mainly on the ground that it is not in
conformity with the decision of the
1216
Constitutional Bench of this Court in Jagmohan’s case and
that the propositions laid down are not within the
competence of the Court. Though the decision cannot be
treated as a binding precedent yet as it is a decision of a
bench of this Court I direct the matter be placed before
Hon’ble the Chief Justice for constituting a larger bench to
decide the case
P.B.R
1217