# ~ 1193 BACHAN SINGH S/0 SAUDAGAR SINGH v. STATE OF PUNJAB

- **Citation:** [1979] 3 S.C.R. 1193
- **Court:** Supreme Court of India
- **Decided:** 1979-05-04
- **Case number:** Criminal Appeal No. 273 B c D E F G H of 1979
- **Bench:** R. S. Sarkaria, Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1193-bachan-singh-s-0-saudagar-singh-v-state-of-punjab-7757
- **Pages:** 24

## Headnote

Penal
Code'-Death penalty-When can be
imposed-Judges-If
have
~
power to reduce sentence of death
to one of life
imprisonment-Raiendra
.::-~·:Prasad's case-If a valid precedent.
...
...
HELD : (Per Sark>1ria, J.)
The records of this case be submitted to the Hon'ble Chief Justice for
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
Jesser 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~ 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. State of Madhya Pradesh [1978] 1 S.C.R. 560 referred to.
In Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541 in which the constituti@nal wlidity 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
20-409SCij79
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1194
SUPREME COURT REPORTS
[1979] 3 s.c.R.
to be corrected by superior courts, that exercise of judicial discretion on well
recognized 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 awacd-
..-b
ed fo~ an o~enc: punishable with d'eath or in the alterna~ve with im.pruonment\.,
for life or tmpnsonment for a term of years.
The reqmrement 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

## Text

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~ 1193
BACHAN SINGH S/0 SAUDAGAR SINGH
A
v.
STATE OF PUNJAB
May 4, 1979
[R. S. SARKARIA AND P. S, KAILASAM, JJ.]
Penal
Code'-Death penalty-When can be
imposed-Judges-If
have
~
power to reduce sentence of death
to one of life
imprisonment-Raiendra
.::-~·:Prasad's case-If a valid precedent.
...
...
HELD : (Per Sark>1ria, J.)
The records of this case be submitted to the Hon'ble Chief Justice for
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
Jesser 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~ 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. State of Madhya Pradesh [1978] 1 S.C.R. 560 referred to.
In Jagmohan Singh v. State of U.P. [1973] 2 S.C.R. 541 in which the constituti@nal wlidity 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
20-409SCij79
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1194
SUPREME COURT REPORTS
[1979] 3 s.c.R.
to be corrected by superior courts, that exercise of judicial discretion on well
recognized 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 awacd-
..-b
ed fo~ an o~enc: punishable with d'eath or in the alterna~ve with im.pruonment\.,
for life or tmpnsonment for a term of years.
The reqmrement 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 Joing 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.
Com1s 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
laW9.
[1207B-DJ
7. 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 a crime and the reason for committing the crime and pass the appropriate 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 rulemaking, 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
.,.
BACHAN SINGH V. PUNJAB
J.] 95
Rajendra Prasad's case the court embarked on framing rules prescribing conditions for the imposition of -death sentence. The view of the majority that in
awa1ding a sentence the criminal is mon: 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 betwe~n the parties to it but it is the abstract ratio decid~ndi ascertained on a consideration of the judgment in relation to the subject matter of the
decision which alone has 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 matter~ of facts are not binding on
any other court.
[1207G-H; 1202D-F]
• Tribhuvandas v. R.atilal 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
y. Leqtham--19~01 A.C. 495 at p. 506; referred to ..
8. In Rajendra Prasais cast the conclruion of the majority
wa.~ that as
nothing. on record suggested that the accused was beyond
redemption and
since the record did not iji.nt that ~uch an attempt was made inside the prison
there was no special reason to award death sentence.
The utmost to which
this c~e can. b~ considered as an authority is that if ·in similar circum~tances
when ,a person stabs two persons several times it would not furnish special
reasons for infli<;f;ing tlw .. death penalty.
In tqe second case (Kunjukunju)
the majority :was of the. vie~ that the test sl;10uld ~e. 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
Prucedl;lre nor. J~w laid down by. the Constitution Bench.
Therefore, it cannot be followed as a
pre~dent.. 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
accustd being young and of malleable age and other circumstances bearing on
the offender called for the lesser sentence is not in conformity with the deci·
sions of this Court or the requirements of the law .. [1213H; 1214A-HJ
··
9. In the instant case the appellant was released after undergoing a term
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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 ~
inflicted a fatal. injury on the son and two daughters of his cousin when they
G
were asleep and caused grievous
injury on another
daughter.
The courts
below camo to the conclusion 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-EJ
!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
H
placed before the Hon'ble the Chief Justice for constituting a larger bench to
rlecide the case.]
1196
SUPREME COURT REPORTS
[1979] 3 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 273
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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 j78.
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, i:Q_ agreement with my learned brother, direct that the records of this Cl!.§.e be submitted ~ 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 0rder, particularly, in its hist 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
Dur~a Bai and V eer~n Bai daughter of Hukam Singh a11d 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 o£ 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 tbree years' rigorous imprisonment and a fi'ne of Rs. 5001-. 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 sentenses passed on 1.he
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
,..
...
BACHAN SINGH V. PUNJAB (Kai/asam, J.)
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. W. 5 for about six 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 ami Viuya. Bai the daughters
of Hukam Singh were in the house.
After taking their meals the
three daughters slept in tbe 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 50 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 qcing 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 Kansbi Singh P.W. 4 and others arrived at th~
place of occurrence and heard from the wltnesses the deta.lls of the
occurrence.
A tractor was brought in which Durga Bai, Veeran Bai and Vidya
were t_aken 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.LR. was recorded at the police station at 4-20 a.m. on 5th July,
1977. The police officer conducted the inquest and proceeded with
his investigation.
The courts below found that the medical evidence
fu1ly 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 beyor:d 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
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1198
SUPREME COURT REPORTS
[1979] 3 S.C.R.
who was sleeping along with her sisters in the house and suffered
serious injuries, saw the attack by the appellant whe-n 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
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 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 vic:-
tims had no cause to suspect the inttntions 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 \rery 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
..
. )
BACHAN SINGH v PUNJAB (K '/
·
. at asam, J.)
1199
the facts found would be special reasons fa
d'
tegcc as required under sec. 354(3) of ther ~~ar 1?Crit?e .death sendure 1973.
e 0
llllllal ProccSection 302 I.P.C. and sub-sec. (3) of sect' a 354 f th
d I 'I tl
.
..
In
o
e Cr PC
197~ ea w1t 1 te Imposition of death sentence. Section 30., i p.
provides :-
-
· .C.
''Whoever commits murder shall be punished w·th·d th
·
·
f
lif
1
ca •
or 1mpnsonment or
e, and shall also be liable to fine."
.
Sub-sec. (3) of sec. 354 of the Code of Cr. Procedure,
1973,
(Oa~ts ·
''When the conviction is for an offence punishable with ·
dcJth or, in the alternative, with imprisonment for lire or
imprisonment for a term of years, the Judgment shall smte
the reasons for the scnt.:nce awarded, and, in the case· of
sentence o( death, tlic special reasons for such sentence."
Before the amendment of ~ec. 367(5} Cr. P.C. by the Criminal Proccdur.: Code (Amendment) Act, 1955 (Act XXVI of 1955) which
came into force on 1st January, 1965, on a conviction for an offence
r:unishablc with dc!Jth if th~: Court sentenced the accused to any punishment other than death, the reason. :t'PY sentence of death .,.,'liS not passed had to be stated in the iudgment. 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 w1th death,
!J.nd the Court sentences him to any punishment other than death,
the Court shall, in its judgment state the reasons why sentence of
de~th was not passed."
This sub-section was construed bdvre the
Amendment Act Act 26 of 1955 as meaning that the extreme sen~
tence is the nor~1al sentence and the mitigated sentence is the exception.
L'l Dalip Singh v. State of Punjab,(') it was held tl1at in a
case of murder, the death sentence should ordinarily be imposed unless the trying Judge,: for reasolLS which should norm:illy _be recorded
consid<:rs it 12.roper ·to award the lesser penalty. ~ Va~zvdu Th.:var
v. The State of Madras,(•) this Court c:\presscd Its vtc:w ~at the
qut·stion or ~;entencc has to be determined, not with ufc:rcnce !·0 t~e
':olumc or character of the evidence adduced by the prosecutiOn 10
~upport of the prosecutillll case, but with reference to the_ fact w?~thcr
th-·
.
.
1 ·1··h can be said to rotllgate -
-.c arc any cxtcnuaung ctrcuntslances w t ~
(I) A. J. R. 1953 S.C. 364
Q) A. l. R. l'>S1 S. C. 61·1.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
the enormity of the crime. If the Court is satisfied that there are such
t¢tigati!}_g 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 (5) by Act 26
of 1955 which does not contain the provision making it incumbent
for a J lldge 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 pe_nalties shoulp be imposed. The resuit is that after
the amendment though the Court is not required to record the reasons
for imr.osing the lesser penalty it was bound to exercis~ 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 t9._ 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.,C) that after the amendm~nt of section
367(5), 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 J.llis become wider.
By the Code of Criminal Procedure, 1973 (Act 2 of 1974) sub.
section (3) to section 354 was introduced regarding tl_!e contentc; of
the judgment relating to imposition of a sentence of death or imprisonment for life or imprisonment for a term of years.
SulJ..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 judgme!lt is required to state the reasons for the sentence awarded
H
and In the case of sentence of death the special reasons for such sentence. When the court in its discretion imposes either a
s~ntence
(1) {1972] 3 s. c. c. 79
.. t
BACHAN SINGH V. PUNJAB (Kailasam, J.)
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 impose. As the Court has a discr~tion to award a sentence of death or imprisonment for llf~ or imprisonment for a term of years and as the discretion is very wide the law
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requires that reasons sh!!ll be stated for awarding one or other of the
sentenc~s. 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 punishabl~ with imprisonment for life
or impriso"nment for 10 years and fine.
Sections 121 (a), 122, 125,
12.8, !30, 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. 3 54 ( 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 5entenc..:~ 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 of imprisonmen!- for life. But if ~he o~ence is of such a grave
nature that ~he court thinks the higher of the penalties, namely the
death sentence, should be imposed special reaSOJlS should be given.
Thus while.: the legislature ret~ined the imposition of death sentence
it laid clown that if the court awarded the death sentence it should
furnish special reasons.
In Chapter 27 which relates
to
'Judgments' there are other section~ which require that rea!'Olls 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 Sl 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 r~habi
litation 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
with the accused under the provisions mentioned.
The object of
requiring the reasons to be given regarding the sentence could be
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SUPREME COURT REPORTS .
[1979} 3 S.C.R.
found in tlie 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 the Court to
state it~ 'reasons ·for imposing the pullishme!!t 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 ~,-.amine the
case as elaborately from the point of view of sentence as from the
point of Vlew of guilt and that it WOuld provide good matcmi at the
time w11en a recommendation. for mercy is to be made- by the court
o~ _a p_<:ti!ionfor mercy is considered and _that it :would increase the
confidence of; the people in courts by showing that the discretion is
judicially exercised.
~t wo_!Ild also facilitate the task of High Court
in · appc~ -or in proceedings for confirmation· in respect of the setttcnce (where the sentence awarded is that of death), or in proceed·
ings in_ revision for enliancement of the sentence (where the sentence
awarded is one of .imprisonl!!ent for life). In its 41st Re-port
on
the Cr. P.C. the Law Commission recommending the
amendment
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also observed that there were certain offences for which the Penal
Code prescribes the punishment as -death or in the alterri.ative "life
imprisonm~t or imprisonment for ~ term of years and therefore the
amendment n;commended 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 reason~ in support of the sentence. For giving effect to the· recommendation· of
the Law Conlmission and the Joint Committee of Parliament sub-
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section (3) to section 354 was-amended in the present fonn. ~e object
.·.of the ~mendmerit therefore is to insist on th~ lower courts to exaiiD_ne
,
t~e '~se' at elaborately from th~ point'"of view of sentence as fl:o!ll th.e
paint~_cf ~iew' ~f guilt and state i!s reasons for impo~ing the sentence.
which "wo~d help the High Court in discharging its functioru; patti-
- Cularly in confirming ? sentence of death or enhancing a sentence of
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imprisonment-for life to death. Thi(object is further sought to be
achieved by the introduction of sub-section 2 . to s. 235 which provides an opport\mity of hearing the accused on the question of sentence.
Th·e provisio!l, requiring special_ reasons for awarding death sentence
,, __ ..
makes it also Clear that the normal sentence when punishment of death
H
or impriSonment for life cciuld be awarded is only imprisonment for
life ~nd if the court imposes death sentence it. should give -special
reasons.
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BACIIAN SINGH v. PUNJAB (Kailasam, /.)
1203
The development o{ law regarding the imposition of death sen:-
:tcnce can 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 introductian 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 . de~iding 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 intro-
·duction of s. 354(3) the normal sentence is the !esser · 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(') this Court summing up the position
·observed that under s. 354(3) of the Cr. P.C., 1973, the ~ouit is
Tequired to state the reasons for the sentence awarded and in the case
of sentence of death si>ecial reasons are required to be stated.. It
-would thus be n .... oticed that awarding of the sentence other than the
sentence of death is the general rule now and only special reasons,
1hat 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 Madliya Pradesh(3 ) it was observed that this Court has in several cases indicated guidelines in this problem area of life and ·death. as a result cf judicial verdict but none
-of .these guidelines can be cut and dry nor. exhaustive and ea.Ch case
·will depend upon the totality of the facts and ciicumstances and other
111atters revealed.
The validity of imposition of death sentence ·was challenged on the
·ground that the sentence puts an end to all Fundamental Rights·
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guaranteed by clauses (a} to (g) of sub-clause (I) of Art. 19 of the
Constitution and therefore the law with regard to capital sentence is .
""
'wueasonable and not in the interest of the general public. It was
• _ _ futther contended that the discretion invested. in the Judges to impose
r -. :capital punishment is not based on any standard or policy required by
'the Legislature for imposing capital punishment in preference .. to
(I) [1976] 2 S.C. R. 684.
Cl) !1976] 4 S. C: C. 298
(3) ti978]1_S. C. R. 560
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[1979] 3 S.C.R.
imprisonment for life. ·Further it was submitted that the uncontrolled
and unguided discretion in the) Judges to impose capital punislm1ent 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.C) 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 bel~ that capital sentence is per se unreasonable or not in..6fll'
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
of sentence is liable to be corrected by superior Courts. The exercise
of judicial discretion on well-recognised principles is,
in the finat
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
cl)allenge 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 aU 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
t
in ~he matter of fixing the degree of punishment on the Judges as the
ex~rcise of judicial discretion on well-recognise~ pr_inciples is the _safest -"-
possible safeguard for the accused. The Constltutwn Bench delivered I
.1r
its judgment on the 3rd October, 1972. Subsequently amendment to
the Code of Criminal Procedure, 1973, (Act 2 of 1974)
came into
fmce on 1st April, 197 4.
The only change by the new Act is the
introduction of s. 367 (5) of the Criminal Procedure Code which provides that the judgment 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 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
(I) [1973] 2 S C. R. 541
BACHAN SINGH v. PUNJAB (Kailasam, J.)
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 sentel)ce 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 ~ay, 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.(') The decision by the majority was delivered by Krishna Iyer
J. held that "special reasoos" 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 5Ubstances
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 withi!l the prison
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\., and without, he makes no bones about killing others or carries on a
·. prosperous business in cadavers, then he becomes a candidate for death
,.
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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.
(I) [1979] 3 S.C.R. 78
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To su~~tantiate my statement, I proceed to give a few extracts
from tbe judgment. At the outset of the judgment it is stated that the
precise issue before it was "the canalisation of the sep.tencing 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 !>pecific indicators and law in this fatal area c~nnot afford to b~
conjectunil'' ......... "The flame of life cannot flicker uncertain; and·._.
so s. 302 IP.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
.fhe Past and the Present." ........ "That is the essay we undertake
bere". "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" ..........