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

- **Citation:** [1979] 3 S.C.R. 355
- **Court:** Supreme Court of India
- **Decided:** 1979-02-22
- **Case number:** Crimihal Appeal No. 70 of 1979
- **Bench:** V. R. Krishna Iyer, 0. CllINNAPPA REDDY
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bishnu-deo-shaw-bishnu-dayal-v-state-of-west-bengal-7798
- **Pages:** 18

## Headnote

B
Demand of death for murder, rationale of section 302 I.P.C. vis-a-visSection 354(3) of the Crl. P.C. 1973-"Special Reason:/', meaning of-Section 354(3) 360. 361 of Crl. P.C.-Scope of.
The appellant was convicted by the Additional Session's Judge Alipore
for the murder of his son 00.d sentenCed to death. The reason given by the
C
Sessions Judge was that the murder was "cruel and brutal" and that the facts
showed the "grim determination" of the accused to kill the deceased. The
Sessions Judge made no reference to the motive of the accused for the commission of the murder. The High Court while confirming the conviction and
sentence observed that the accused had previously murdered his wife, suspecting her infidelity that the sentence of imprisonment imposed on him for the
mur~er of his wife had no sobering effect, that he suspected that the deceased
D
in the present case was not his own son and so he murdered him without
any mercy or remorse, and that he, therefore deserved no mercy.
Allowing the appeal by special leave limited to the question of sentence,
the Court
HELD : 1. There were no "special reasons" justifying the imposition of the
E
death penalty.
[3 71 Fl
(a) The Sessions Judge was wrong in imposing the sentence of
death
without even a reference to the reason v"hy the appellant comn1itted the
murder.
[371 CJ
(b) The observation of the High Court that the
appellant
deserved no
mercy because he showed no mercy smacks very much of punishment by way
of retribution.
[371 CJ
(c) From the evidence, it is clear that the appellant 'Whs a moody person
who had for years been brooding over the suspected infidelity of his wife and
the injury of having a son foisted on him. The mere use of adjectives like
"cruel and brutal" does not supply the special reasons contemplated by
section 354(3) of the Criminal Procedure Code, 1973. [3.710-E]
Rajendra Prasad v. State of Utrar Pradesh, [1979] 3 S.C.R. 78, applied.
2. "Special reasons
1
' are reasons which are special with reference to
the
offender, with reference to constitutional and legislative directives and with
reference to the times, that is, with reference to contemporary ideas in the
F
G
fields of criminology and connected sciences. Special
reasons
are
those
H
which lead inevitably to the conclusion that the offender is beyond redemp·
tion, having due regard to his personality and proclivity, to the
legislative
A
B
c
D
E
F
G
H
356
SUPREME COURT REPORTS
[1979] 3 s.c.R,
policy of reformation of the offender and to the advances made
in
the
methods of treatment etc. Section 354(3) of the 1973 Code has narrowed the
discretion of sentence for murder. Death sentence is ordinarily ruled out and
can only be imposed for "Special reasons".
Judges are left ·with the task of
discovering "special reasons".
[368 D-E. 370E-F]
(a) Apart from Section 354(3), there is another prov1s1on in the Code
which also uses the significant expression "Special reasons.". It is Section 361,
Section 360 of the 1973 Code re-enacts, in substance, Section 562
of ~16
1898 Code and provides for the release on probation of good
conduct or
after admonition any person not under twenty-one years of age who is COn•
victed of an offence punishable with fine only or with imprisonment for
a
term of seven years or less, or any person under twenty·one years of age
or any woman who is convicted of an offence not punishable with death or
imprisonment for life, if no previous offence is proved against the
offender,
and if it appears to the Court having regard to the age, character or antec-e·
dents of the offender, and to the circunlStances in which the offellce was
committed, that it is expedient that the offender should be re1eased on proba·
tion of good conduct or after admonition. If the Court refrains from den.I·
ing with an offen<Jer under Section 360 or under the provisions of the Pro·
bation of Offenders Act, or any other law for the treatment, training, or
rehabilitation of youthful offenders, where the Court could
have

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355
BISHNU DEO SHAW@ BISHNU DAYAL
A
v.
STATE OF WEST BENGAL
February 22, 1979
[V. R. KRISHNA IYER AND 0. CllINNAPPA REDDY, JJ.J
B
Demand of death for murder, rationale of section 302 I.P.C. vis-a-visSection 354(3) of the Crl. P.C. 1973-"Special Reason:/', meaning of-Section 354(3) 360. 361 of Crl. P.C.-Scope of.
The appellant was convicted by the Additional Session's Judge Alipore
for the murder of his son 00.d sentenCed to death. The reason given by the
C
Sessions Judge was that the murder was "cruel and brutal" and that the facts
showed the "grim determination" of the accused to kill the deceased. The
Sessions Judge made no reference to the motive of the accused for the commission of the murder. The High Court while confirming the conviction and
sentence observed that the accused had previously murdered his wife, suspecting her infidelity that the sentence of imprisonment imposed on him for the
mur~er of his wife had no sobering effect, that he suspected that the deceased
D
in the present case was not his own son and so he murdered him without
any mercy or remorse, and that he, therefore deserved no mercy.
Allowing the appeal by special leave limited to the question of sentence,
the Court
HELD : 1. There were no "special reasons" justifying the imposition of the
E
death penalty.
[3 71 Fl
(a) The Sessions Judge was wrong in imposing the sentence of
death
without even a reference to the reason v"hy the appellant comn1itted the
murder.
[371 CJ
(b) The observation of the High Court that the
appellant
deserved no
mercy because he showed no mercy smacks very much of punishment by way
of retribution.
[371 CJ
(c) From the evidence, it is clear that the appellant 'Whs a moody person
who had for years been brooding over the suspected infidelity of his wife and
the injury of having a son foisted on him. The mere use of adjectives like
"cruel and brutal" does not supply the special reasons contemplated by
section 354(3) of the Criminal Procedure Code, 1973. [3.710-E]
Rajendra Prasad v. State of Utrar Pradesh, [1979] 3 S.C.R. 78, applied.
2. "Special reasons
1
' are reasons which are special with reference to
the
offender, with reference to constitutional and legislative directives and with
reference to the times, that is, with reference to contemporary ideas in the
F
G
fields of criminology and connected sciences. Special
reasons
are
those
H
which lead inevitably to the conclusion that the offender is beyond redemp·
tion, having due regard to his personality and proclivity, to the
legislative
A
B
c
D
E
F
G
H
356
SUPREME COURT REPORTS
[1979] 3 s.c.R,
policy of reformation of the offender and to the advances made
in
the
methods of treatment etc. Section 354(3) of the 1973 Code has narrowed the
discretion of sentence for murder. Death sentence is ordinarily ruled out and
can only be imposed for "Special reasons".
Judges are left ·with the task of
discovering "special reasons".
[368 D-E. 370E-F]
(a) Apart from Section 354(3), there is another prov1s1on in the Code
which also uses the significant expression "Special reasons.". It is Section 361,
Section 360 of the 1973 Code re-enacts, in substance, Section 562
of ~16
1898 Code and provides for the release on probation of good
conduct or
after admonition any person not under twenty-one years of age who is COn•
victed of an offence punishable with fine only or with imprisonment for
a
term of seven years or less, or any person under twenty·one years of age
or any woman who is convicted of an offence not punishable with death or
imprisonment for life, if no previous offence is proved against the
offender,
and if it appears to the Court having regard to the age, character or antec-e·
dents of the offender, and to the circunlStances in which the offellce was
committed, that it is expedient that the offender should be re1eased on proba·
tion of good conduct or after admonition. If the Court refrains from den.I·
ing with an offen<Jer under Section 360 or under the provisions of the Pro·
bation of Offenders Act, or any other law for the treatment, training, or
rehabilitation of youthful offenders, where the Court could
have done, so,
Section 361, which is a new provision in the 1973 Code makes it tnendatory
for the Court to record in its judgment the "Special reasons" for not doing·
so. Section 361 thus casts a duty upon the Court to apply the
prov1s1ons
of Section wherever it is possible to do so and, to state "special reasons" it
it does not do so.
[368F-H, 369A-Bl
(b) In the context of Section 360, the "Special reasons" contemplat'd
by Section 361 must be such as to compel the Court to hold that it is iin·
possible to reform and rehabilitate the offenders, after examining the matter
with due regard to the age, character and antecedents of the offender and the
circumstances in which the offence was committed. This is some indication
by the Legislature that reformation and rehabilitation of offenders, and
not
mere deterrence are now among the foremost objects of the administration of
criminal justice in our country. Section 361 and Section 354(3) have both
entere_d the Statute Book at the same time and they are part of the emerging
picture of acceptance by the Indian Parliament of the new trends in criminology. Therefore, the personality of the offender as revealed by
his
age1
character, antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent role in determin~
ing the sentence to be awarded.
Special reasons must have some relation to.
these factors.
(369B-EJ
3. Criminal justice· is not a computer machine. It deals
with
con1plex-.
human problems and diverse
1 human beings.
It deals with persons who areotherwise like the rest of us, who work and play, who laugh and mourn, whe>
love and hate, who yearn for affection and approval, as all of us do, who
think learn and forget. Like the rest of us they too are the creatures of
circumstances. Heredity,
environment,
home
neighbourhood,
upbringing,
school, friends, associates, even casual acquaintences, the
books
that
one
reads, newspapers, radio and TV, the economics of the household, the· oppor-
•
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,
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BISHNU DEO V. WEST BENGAL
357
tunities provided by circumstances and the calarnaties resulting therefrom the
A
success and failure of one's undertakings the affairs of the heart, ambitions and
frustrations, the ideas and ideologies of the time, these and several other ordinary
and extra-ordinary incidents of life contribute to a person's personality and
influence his conduct. Differently shaped and differently circumstanced indivi·
duals reaoet differently in given situations. A judge has to balance the personality
of the offender with the circumstances the situations and the
reaction~ and
choose the appropriate sentence to be imposed.
A judge must try tO 3.nswcr
a myriad question such as was the offence comn1itted without premeditation
or was it after due deliberation ? What was the motive for the criwe '!
\Va-s
it for, gain ? Was it the outcome of a village feud ? Was it the result of a
petty drunken, street brawl, or a domestic bickering between a helpless husband
and a helpless wife ? Was it due to sexua-1 jealousy ? Was the n1u:·<ler committed under some stress, emotional or otherwise ? What is the background
of the offende( ? What is his social and economic status ? What is the level
of his education or intelligence ? Do his actions betray a particularly· callous
indifference towards the welfaire of society, or on the other hand, do they show
a great concern for humanity and are in fact inspired by such concern ? Is
the offender so perpetually and constitutionally at \Var \Vith society that there
is no hope of ever reclaiming him from being a n1enace to society ?
Or is
he a person who is patently amenable to reform ? [369 E-H, 370 A-CJ
(a) Judges in India have the discretion to impose or not to
in1pose
the
death
penalty.
It is one of the great burdens \Vhich judges in this country
have to carry.
In the past, the reasons which \veighed in the matter of awardin:;
or not awarding the sentence of death varied widely a-nd there was certainly
room for complaint that there was unequal
t:lpplication of the law in the
matter of imposition of the sentence of death.
{367C-D]
(b) There cannot be any higher basic human right than the right to life
and there ca·n not-be anything more offensive to human dignity than a violation
of that right by the infliction of the death penalty. It is in the light of the
right to life as a basic concf1'.()t of human dignity, in the conb!xt of the unproven
efficacy of the death penalty as a deterrent and in the background of modern
theories of criminology based upon progress in the ·!jeJds of science, medicine,
psychiatry and sociology and in the setting of the ma·rch of the movement for
abolition of Capital Punishment, that Judges in India arc required to decide
\Vhich sentence to impose in a case of murder, death or imprisonn1ent fer
life?
[3660, 367B-C]
Furman v. Georgia, 33 Lawyers Edn. 2nd Series 346 1eferred to.
( c) Realising that discretion, even judicial_, 1nust proceed along. perceptive
lines, but, conscious, all the same that such discretion cannot be reduced to
formulate or put into pigeon-holes, this Court has be~n at great pain ever since
Ediga-Annamma to point out the path along which to proceed. In the latest
pronouncement of this Court in Rajendra Prasad v. State of U11ar Pradesh,
several relevant principles have been enunciated to guide the exercise of discretion in making the choice betv.·een the penalties of death ~:nd Jife-imprisonment.
[367F-G]
Ediga Annamma v. State of A.P. [1974] S.C.C. 443, Rajendra Prasad v.
State of U.P. [1979] 3 SCR 78 referred to.
B
c
D
E
F
G
n
A
B
c
D
358
SUPREME COURT REPORTS
[1979] 3 S.C.R.
4. Among the several theories of punishment the reformative theory is
irrelevant where death is the punishment since life and not death can reform;
the preventive theory is unimportant "'here the choice, is between death and
life imprisonment las in India; the retributive theory is incongruous in an era of
enlightenment and inadequate as a theory since it does not attempt to justify
punishment by any beneficial results either to the society or to the person
punished. Equally, the denunciatory theory is as inadequate as the retributive
theory since it does not justify punishment by its
results.
[359H,
360AwB,
36!BJ
5. (a) The very nature Of the penalty of death makes it imperative that
at every suitable opportunity life imprisonment should be
preferred to
the
death penalty.
[359E]
Furman v. Georgia, 33 L.ed. 2nd Edn. 346; relied on.
(b) AU studies made on the subject whether capital punishnlent is the
most desirable and most effective instrument for protecting the community fr01:.1
violent crime than other penalties say, a sentence of imprisonment for long
terms, have led to the conclusion that the death penalty is inconsequential
as a deterrent. [361 F]
( c) There is no positive indication that the death penalty has been deterrent.
In other words, the efficacy of the death penalty as a deterrent is unproven.
[365A]
6. The death penalty, rather than deterring murder, actually deters the
proPer administration of criminal justice. [365 A-B]
(a) There is the absolute finality and irrevocability of the dearh penalty.
Human justice1 can never be infallible. The most conscientious judge is no
E
proof against any mistakes. Cases are unknown where innocent persons haye
been hanged in India and elsewhere.
[365B-C]
F
(b) Some Judges and· Jurists have an abhorrence of the death penalty that
they would rather find a guilty person not guilty than send even a guilty perscn
to the gallows. The refusal of juries to convict persons of murder because
of the· death penalty is a well known phenomenon throughout the world.
A.
perusal of some of the judgments of the Superior Courts in India. dealing with
cases where Trial Courts have imposed sentence of death reveals the same
reluctance to convict because the result would otherwise be to confirm the
sentence of death. Thus a guilty person )s prevented from conviction by a
possibility that a death penalty may otherwise be the result.
(365C-D]
(c) Yet a more 'grievious injury' which the death penailty inflicts on the
administration of Criminal Justice· is that it rejects reformation and rehabilitation
G
of offenders as among the most important objectives of Criminal Justice, though
the conscience of the World Community spelaking through the voices of the
Legislature of several countries of the world has accepted reforma•tion ard
rehabilitation as among the basic purposes of Criminal Justice.
Death penalty
is the broOOing giant in the part of reform and treatment of Crime and
Crimiilals, 'inequitably sabotaging any social or institutional programme tO
reformation'.
It is the 'fifth column' in the administration of criminal justic:e.
B
[365E-GJ
( d) There is also the compelling class complexion of the death penalty.
A tragic by-product of social and economic deprivation is th.Qt the 'have-nots'
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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)
359
in every society always have been 5Ubject to grea¢:er pressure to commit crimes
and to fewer constraints than their more afiluent fellow citizens. So, the burden
-0f capital punishment falls more frequently upon the ignorant, the improverished
and the underprivilege. [365 G-H]
CRIMINAL APPELLATE JURISDICTION : Crimihal Appeal No. 70 of
1979.
Appeal by Special Leave from the
Judgment and Order dated
1-2-1978 of the Calcutta High Court in Criminal Appeal No. 273 of
1976 and death Reference No. 4/76.
H. C. Mittal (Amicus Curiae) for the Appellaitt.
G. s. Chatterjee for the Respondent.
The following Judgments were delivered :
CHINNAPPA REDDY, J.-"The murderer has killed. It is wrong to
kill. Let us kill the murderer". That was how a Mr. Bonsall of Manchester (quoted by Arthur Koestler in his 'Drinkers of Infinity'), in a letter
A
B
c
to the Press, neatly summed up the paradox and the pathology of the
D
Death Penalty.
The unsoundness of the rationale of the demand of
-Oeath for murder has been
discuss·~d and exposed by my brother
Krishna Iyer, J., in a recent pronouncement in
Rajendra Prasad v ..
State of Uttar Pradesh(').
I would like to add an appendix to what
bas been said there.
The dilemma of the Judge i'n every murder case, "Death or life
imprisonment for the murderer ?" is the question with which we are
faced in this appeal.
The very nature of the penalty of death appears
to make it imperative that at every suitable opportunity life imprisonment should be preferred to the death penalty.
"The penalty of
death differs from all other forms of criminal punishment,
uot ih
degree but in kind. It is unique in its total irrevocability. It is
unique in its rejection of rehabilitation of the convict as a basic purpooe of criminal justice.
And, it is unique finally in its absolute re·
nuhciation of all that is embodied in our concept of humanity" (per
Stewart J., in Furman v. Georgia) (2). "Death is irrevocable, life imprii;onment is not.
Death, of course, makes rehabilitation impossible,
1ife imprisonment doos not"
(per Marshall, J., in Furman v.
Georgia).
E
F
G
I'
Theories of punishment, there are many reformative, preventive,
retributive, denunciatory and deb~rre'nt. Let us examine which cap
.fits capital punishment.
The reformative theory is irrelevant where
H
~ y
(I) [1979] 3 S.C.R. 78.
'(2) 33 Lawyers Edn. 2nd Series 346.
360
SUPREME COURT REPORTS
[1979] 3 S.C.RA
death is the punishment since life and not death can reform.
The
preventive theory is unimportant where the choice is between death
and life imprisonment as in India.
B
c
D
E
The retributive theory is incongruous in an era of enlightenment.
It is inadequate as a theory sinoe it does not attempt to justify punishment by any beneficial results either to the society or to the persons
punished.
It is, however, hecessary to clear a common
misnnderstanding that the retributive theory justifies the death penalty. According to the retributivist society has the right and the duty to vindicate
the wrong done to it and it must impose a punishment which fits the
crime. It does not mean returning of evil for evii but the righting
of a wrong.
It implies the imposition of a just but no more than a
jnst penalty and automatically rules out execessive punishment and,
therefore, capital punishment.
According to a modern exponent of
the v::tributive theory of justice "capital punishmeht . . . . . . is without foundation in a theory of just punishment.
Indeed one could go
further and assert that capital punishment is antithetical to the purposes.
and principles of punitive sanctions in the law.
Requital, when properly understood in terms of a concept of just law, undoubtedly does
have a legitimate ro~e in punishment.
However, neither requital nor
punishment in general is a returning of evil for evil, and, theP::fore, I
see no support for the demand that a murder (or an act of treason,
or some other serious offence) be paid for with a lifo".
The Biblical
injunctioh 'an eye for an eye and a tooth for a tooth' is often quoted
as if it was a command to do retributive justice. It was not.
Jewish
history shows that it was meant to be merciful and set limits to harsh
punishments which were imposed earlier including the death penalty
for blasphamy, Sabbath breaking, adultery, false prophecy,
cursing,
striking a parent etc. And, as one abolitionist reminds us, who, one "'
may ask, remembers the voice of the other Jew : "Whoever shall smite
on thy right cheek, turn to him the other also ?".
The d•::nunciatory theory of punishment is only a different shade
of the retributive theory but from a sternly moral plain.
Lord DenG
ning advahced the view before the Royal Commission on Capital
Punishment : "The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the .great majority of citizens for
themIt is a mistake to consider the obj•::cts of punishment as being
deterrent or reformative or preventive and nothing else. The ultimate
justification of a'ny punishment is not that it is a deterrent but that it
H
is th:: emphatic denunciation by the community of a crime, and from
this point of view them are some murders which in the present state
of opinion demand the most emphatic denunciation of all, namely the
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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)
361
death penalty" . . . . . . "The truth is that some crimes are so outrageous that society insists on adequate punishment, because the
wrong-doer deserves it, irrespective of whether it is a deterrent or not".
The implication of this statement is that th•c death penalty is necessary
not because the preservation of society requires it but because society
demands it.
Despite the high moral tone and phrase, the dennnciatory theory, as propounded, is nothing but an echo of the retributive
theory as explained by Stephen who had said earlier : "The criminal
law stands to the passion of revenge in much the same relation as marriage to the sexual appetite".
The denunciatory theory is as inade-.
quate as the retributive theory since it does not justify punishment by
its results.
As Prof.
Hart points out the idea that we may puhish
offenders not to prevent harm or suffering or even the reptition of
the offence but simply as a means of emphatically expressing our con~
demnation, is uncomfortably close to human sacrifice as an expression
of righteousness.
And, the qu•ostio'n remains : "Why should denunciation take the form of punishment".
The deterrent theory may now be considered.
It is important to
notice here that the question is not whether the penalty of death, hai;;
deterrent effect on potential murderers but whether it deters
morecffectively than other. penalties say, a sentence of imprisonment for a
long term ? Is Capital Punishment the most desirable and the most
effective instrument for protecting the community from violent crime?
What is the evidence that it has a uniquely deterrent force compared
with the alternative of protracted imprisonment? If the death penalty
really and appreciably decreases murder, if there is equally no effective
substitute and if its incidents are not injurious to society, we may well
support the death penalty.
But all studies mad•c on the subject, as I
will presently point out, appear to have led to the conclusion that the
death penalty is inconsequential as a deterrerrt.
Sir James Fitz James Stephen, a great Victorian Judge and a
vigorous expo'nent of the deterrent theory said in his Essay on Capital
Punishment : "No other punishment of death.
This is one of those
committing crimes as the punishment of death.
Thi; is one of those
propositions which it is difficult to prove simply because they are in
themselves more obvious than any proof can make them.
It is possible to display ingenuity in arguing against it, but that is all.
The
who'•' experie'nce of mankind is in the other direction.
The threat of
instant death is the one to which resort has always been made when
there was an absolute necessity of producing some results ...... No
one goes to certain inevitable death except by compulsion.
Put the
A·
m
A
B
c
D
E
IF
G
H
362
SUPREME COURT REPORTS
[1979] 3 s.c.R.
matter the other way, was there ever yet a criminal who when sentenced to death and brought out to die would refuse the offer ol' a
commutati<in of a sentence for a severest secondary punishment ?
Surely not.
Why is this? It can only be because 'all that a man has
will be given for his life''. In any secondary punishment however
terrible, there is hope; but death is death; its terrors cannot be described more forcibly".
Stephen's statement was admittedly a dogmatic assertion since he
himself stated that it was a proposition difficult to prove though according to him, self evident.
The great fallacy in the argument of Stephen
has been pointed out by several criminologists.
Stephen makes no
distinction between a threat of certain and imminent punishment which
faces the convicted murderer and the threat of a different problamatic
punishment which may or may not influence a potential murderer.
Murder may be unpremeditated, under the stress of some disturbing
emotior: or it may be premeditated after planning and deliberation.
Where the murder
is premeditated
any thought of possibility
of
punishment. is blurred by ·emotion and the penalty of death can no
more deter than any other penalty.
Where murder is premedit~,ted
the offender disregards the risk of punishment because he thinks there
is no chance of detection.
What weighs with him is the uncertainty
~
of detection and consequent punishment rather than the nature of the
punishment.
The Advisory Council on the Treatment of Offenders
appointed by the Government of Great Britain stated in their report
in 1960 "We were impressed by the argument that the greatest deterrent to crime is not the fear of punishment, but the certainty of
detection".
Prof. Hart countered Stephen's argument with these observations:
'This (Stephen's) estimate of the paramount place in human motivation of the fear of death reads impressively but surely contaim
a
· suggestio falsi and once this is detected its congency as an argument
in favour of the death penalty for murder vanishes for there is
really no parallel between the situation of a convicted murderer over
the alternative or life imprisonment in the shadow of the gallows and
the situation of the murderer contemplating his crime.
The certainty
of death is one thing, perhaps for
normal people nothing can he
compared with it.
But the existence of the death penalty does not
mean for the murderer certainty of death now. It means not very
high probability of death in the future.
And, futurity and uncertainty,
the hope of an escape,
rational or irrational lastly diminishes
the
difference between death and imprisonment as deterrent, and may
diminish to vanishing point ....... The way in which the convicted
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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)
363
murderer may view the immediate prospect of the gallows after he
has been caught must be a poor guide to the effect Of this prospect
upon him when he is contemplating committing his crime".
A hundred and fifty years ago a study was made by the Joint
Selec.t Committee appointed by the General Assembly of Connecticut
and they reported "Your Committee do not hesitate to express their
firm belief that a well devised system of imprisopment, one which
should render the punishment certain and perpetual would be far more
effectual to restrain from crime than punishment of death''.
One of the most comprehensive enquiries ever undertaken on the
subject was that made by the Royal Commission on Capital Punishment.
The Commission visited several countries of Europe and the
United States, addressed qnestionnaires to many other couutries in
search of information and examined celebrated experts and jurists. The
Commission's conclusions are of significance.
They said: "There is
no clear evidence in any of the figures we have examined that the
abolition of Capital Punishment has led to an increase in the homicide
rate, or that its reintroduction to a fall ....... prima fade the penalty
0f death is likely to have a stronger effect as a deterrent to
normal
human beings than any other form of punishment and there is some
evidence (though no convincing statistical evidence) that this is in
fact so.
But its effect does not operate universally or unifonnly and
there are many offenders on whom it is limited and may often be
negligible. It is accordingly important ta view this question in just
perspective and not ta base a penal policy in relation to
murder an
exaggerated estimates of the uniquely deterrent farce of the death
penalty".
Prof. Thorsten Sellin who made a serious and thorough study of
the entire subject in the United States on behalf of the American Law
In,stitute stated his conclusion:
"Any one who carefully examines the
· above data is bound to arrive at the conclusion that the death penalty,
as we use it, exercises no influence on the extent or fluctuating rate
of capital crime. It has failed as a deterrenf'.
In 1962 statistics were compiled and a report was prepared at the
instance Qf the United Nations Economic and Social Council on the
question of Capital Punishment, the laws and practices relating thereto
and the effects of capital punishment and the abolition thereof on the
rate of criminality.
According to the report all the information available appeared to confinn that neither total abolition of the death
penalty nor its partial abolition in regard to certain crimes only had
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been followed by any notable rise in the incidence of crime which was
previously punishable with death.
Late Prime Minister Bhandarnaike of Sri Lanka suspended the
death penalty in 1956.
A Commission of Inquiry on Capital Punishment was appointed and it reported "If the experience of the many
countries which have suspended or abolished capital punishment is
taken into account there is in our view, cogent evidence of the unlikelihood of this 'hidden protection' ...... It is, therefore, our view that
the statistics of homicide in Ceylon when related to the social changes
since the suspension of the death penalty in Ceylon and when related
to the experience of other countries tend to disprove the assumption
of the uniquely deterrent effect of the death penalty, and that in deciding on the question of reintroduction or abolition of the capital
punishment reintroduction cannot be justified on the argument that it
is a more effective deterrent to potential killers than the alternative of
protracted imprisonment''. It is a tragic irony that Prime Minister
Bhandarnaike who suspended the Capital Punishment in Ceylon was
murdered by a fanatic and in the panic that ensued death penalty was
reintroduced in Ceylon.
In the United States of America several studies have been made
but 'the resnlts simply have been inconclusive'.
The majority Judges
of the United States Supreme Court who upheld the constitutionality
of the death penalty in the State of Georgia in Gregg v. Georgia(')
were compelled to observe "Although some of the studies suggest that
the death penalty may not function as a significantly greater deterrent
than lesser penalties, there is no convincing empirical evidence supporting or refuting this view".
In the same case the minority Judges
Brennan, J., and Marshall, J., were convinced that 'capital punishment
was not necessary as a deterrent to crime in our society'.
In India no systematic study of the problem whether the
death penalty is a greater deterrent ·to murder than the
penalty
of life imprisonment has yet been undertaken. A few years ago I made a
little research into the matter and studied the statistics relating to
capital crime in several districts of Andhra Pradesh from 1935
to
1970.(')
The pattern was most eratic but it can be boldly asserted
that the fignres do not justify a conclusion that the death penalty has
been a deterrent, but, then, the figures do not also lead inevitably to
the conclusion that the death penalty has not been deterrent. One of
the complicating factors is the discretion given to 1udges
to inflict
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(I) 49 L. Edn. 2nd 859.
(2) Article in the Hindu, Madras, published in 1973.
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BISHNU DEO v. WEST BENGAL (Chinnappa Reddy,!.)
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·death penalty or imprisonment for life (about which more later) which
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{!estroys the utility of any study based on statistics. The most reasonable conclusion is that there is no positive indication that the death
penalty has been deterrent. In other words, the efficacy of the death
penalty as a deterrent ls unproven.
"The death penalty, rather than deterring murder, actually deters
the proper administration of criminal justice".(')
There is the absolute finality and irrevocability of the death penalty.
Human justice
can never be infallible.
The most conscientious judge
is no proof
against sad mistakes.
Every criminal lawyer of experience will admit
that cases are not unknown where innocent persons have been hanged
in India and elsewhere.
And, it is not the only way the death penalty
strikes at the administration of criminal justice.
Some Judges and
Juries have an abhorrence of the death penalty that they would rather
find a guilty person not guilty than send even a guilty person to the
gallows.
The refusal of Juries to convict persons of murder because
of the death
penalty is a well known phenomenon throughout the
world. A perusal of some of the judgments of the Superior Courts in
India dealing with cases where Trial Courts have imposed sentences
of death reveals the same reluctance to convict because the
result
would otherwise be to confirm the sentence of death.
Thus a guilty
person is prevented from conviction
by a possibility that a
death
penalty may otherwise be the result.
That is not all.
There is yet a more 'grievous injury' which the
death penalty inflicts on the administration of Criminal Justice. It
rejects reformation and rehabilitation of offenders as among the most
important objectives of Criminal Justice, though the conscience of the
World Community speaking through the voices of the Legislature of
several countries of the world has accepted reformation and rehabilitation as among the basic purposes of Criminal Justice.
Death
penalty is the brooding giant in the path of reform and treatment of
Crime and Criminals, 'inevitably sabotaging any social or institutional
programme to reformation'. It is the 'fifth column' in the administration of criminal justice.
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There is also the compelling class complexion of the death penalty.
A tragic by product of social and economic deprivation is that the
"have-nots" in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent
fellow citizens.
So, the burden of
capital punishment falls
more
frequently upon the ignorant, the impoverished and the underpriviledged. In the words of Marshall, J., "Their impotence leaves them
(1) Frank-cYConnor quoted in 'Ready for the Defence' by Garbus.
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victims of a sanction that the welthier, better represented, just-as guilty
person can escape.
So long as the capital sanction is used
only
against the forlorn, easily forgotten members of society, legislators are
content to maintain the status-quo because change would draw attention to the problem and concern might develop.
Ignorance is perpetuated and apathy soon becomes its ma.te and we have today's situation''.
As a matter of historical interest it may be mentioned here
that when in 1956, in Great Britain, the House of Commons adopted
a resolution "That this House believes that the death penalty for
murder no longer accords with the needs or the true interests of a
civilised society, and calls on Her Majesty's Government to introduce
forthwith legislation for its abolition or for its suspension for an experimental period", and the death penalty Abolition Bill was introduced,
'from the hills and forests of darkest Britain they came: the halt, the
lame, the deaf, the obscrue, the senile and the forgotten-the here-
. ditary peers of England, united in their determination to use their
medieval powers to retain a medieval institution",(') and the bill was
torpedoed by the House of Lords.
Capital Punishment was however
abolished in Great Britain in 1966.
There is finally the question whether the. death penalty conforn1s
to the current standards of 'decency'.
Can there be any higher basic
human right than the right to life and can anything bt; more offensive
to human dignity than a violation of that right by the infliction of the
death penalty. Brennan, J., observed in Furman v. Georgia( 2 ) "In
comparison to all
other
punishments today ...... the deliberate
extinguishment of human life by the State is uniquely degrading to
human dignity ..... death for whatever crime and under all circumstances is truly an awesome punishment.
The calculated· killing of a
human being by the State involves, by its very nature, a denial of the
executed person's humanity ...... as executed person has indeed loot
the right to have rights''. Senor Tejera of Uruguay in the debate in
the United Nations said "A death penalty is an anachronism iu the
twentieth Century and it is significant that no one in the committee
has defended it. It is the duty of the United Nations to promote pre~
gress and to protect man from the prejudices and barbarity surviving
from the past''.
In a large number of countries in the world where the murder
rate is higher than in India, the death penalty has been abolished. In
most La'.in American countries, in Argentina, Brazil, Columbia, Costa
(1) Quotation from the New Statesman.
(2) 22 L. Edn. 2nd 346.
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367
Rica, Ecuador, Maxico, Panama, Peru and Uruguas, Venezuala, in
European countries, in Austria, Belgium, Denmark, Germany, Italy,
Netherlands, Norway, Sweden, and Switzerland, in Iceland, in Israel,
in many Australian States and in many of tbe States in the United
States of America, death sentence has been abolished .
It is in the light of the r\ght to life as a basic concept of human
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dignity, in the context of tbe unproven efficacy of the death penalty as
a deterrent and in tbe background of modern theories of criminology
based upon progress in the fields of science, medicine, psychiatry ~n<l
sociology and in the setting of the march of the movement for abolition of Capital Punishment, that Judges in India are required to decide
which sentence to impose in a case of murder, death or imprisonment 0
for life?
Judges in India have the discretion to impose or not to impose the
death penalty. It is one of the great burdens which Judges in this
country have to carry.
In the past, the reasons which weighed in the
matter of '!warding or not awarding the sentence of death
varied
widely and tbere was certainly room for complaint that there was an
unequal application of the Jaw in the matter of imposition of the sentence of death.
The varying outlook on the part of Judges was well
brought out a few years ago by two decisions of the Andhra Pradesh
High Court.
In tbe first case, while confirming the conviction
of
certain "Naxalites" for murder, the judges set aside the sentence of
death and awarded life imprisonment instead.
That the mnrder was
not for any personal motive but was in p.nrsuit of some mistaken ideology was the reason which weighed with the judges for substituting the
sentence of life imprisonment for the sentence of death.
Within a
few montbs tbis view was subjected to severe criticism by two other
Judges, who, in the second case confirmed the sentence of death.
Realising that discretion, even judicial, must proceed along perceptive
lines, but, conscious, all the same, that such discretion cannot be
reduced to formulae or put into pigeon-holes, this Court has been at
great pains cversince Ediga Annamma to point the path along which
to proceed. In the latest pronouncement of this Conrt in Rajendra
Prasad v. State of Utlar Pradesh (supra) several relevant principles have
been enunciated to guide the exercise of discretion in making the choice
between the penalties of death and life-imprisomnent.
I express my
agreement witb tbe elucidation of tbe principles in Rajendra Prasad
v. State ofUttar Pradesh. (supra)
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Section 302 Indian Penal Code prescribes deatb or life-imprisonH
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ment as the penalty for mnrder. While so, the Code of Criminal Procedure instructs the Conrt as to its application. The changes which
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the Code ha~ undergone in the last 25
years clearly indicate that
Parliament i~ taking note of contemporary criminological thought and
movement.
Prior to 1955, Section 367(5) of the Code of Criminal
Procedure 1898 insisted upon the Court stating its reasons if the sentence of death was not imposed in a case of murder.
The result was
that it was thought that in the absence of extenuating circumstances,
which were to be stated by the Court, the ordinary penalty for murder
was death.
In 1955, sub-section (5) of Section 367 was deleted and
the deletion was interpreted, at any rate by some Courts, to mean that
the sentence of life imprisonment was the normal sentence for murder
and the sentence of death could be imposed only if there were aggravating circumstances. In the Code of Criminal Procedure of 1973,
there is a further swing towards life imprisonment Section 354(3)
cf the new Code now provide8 :
"When the conviction is for an offence punishable with
death or, in the alternative imprisonment for life or imprisonD
mcnt for a t_\lrm of years, the judgment shall ~tale the reasons
for the sentence awarded, and, in the case of sentence of
death, the Special reasons for such sentence."
So, the discretion to impose the sentence of death or life-imprisonment is not so wide, after all.
Section 354(3) has narrowed the
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discretion Death Sentence is ordinarily ruled out and can only be
imposed for 'Special reasons', Judges are left with the task of discovering 'Special reasons'.
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Let us first examine if the Code of Criminal Procedure gives any
clue leading to the discovery of 'Special reasons'.
Apart from Section 354(3) there is another provision in the Code
which also uses the significant expression 'special
reasons'.