# EDIGA ANAMMA v. STATE OF ANDHRA PRADESH February 11, 1974

- **Citation:** [1974] 3 S.C.R. 329
- **Court:** Supreme Court of India
- **Decided:** 1974-02-11
- **Case number:** Criminal Appeal No. 67 of 1973
- **Bench:** V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ediga-anamma-v-state-of-andhra-pradesh-february-11-1974-6056
- **Pages:** 11

## Headnote

Cri111i1wl Law-Practice and Pror:edure--Of]ence of 11111rdeJ·--Circu111sta11c,•s
justifying lesser sentence.
The appellant, a rustic young .woman, flogged out of her husband's house
by her father-in-law, was living with her
parents with her only child.
She
committed a premeditated, cleverly planned murder of another young woman
and her child became of rivalry between the appellant and the murdered woman
for tb.e affections of an illicit lover.
The Sessions court awarded the death
iiCDtence and the High Court confirmed.
C
In appeal to this Court.
D
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F
G
HELD: The death sentence must be dissolved and life sentence substituted.
(i) Modern penology regards crime and criminal as equally material when
the right sentence has to be picked out although in our processual system there
is neither comprehensive provision nor adequate machinery for collection and
presentation of social and personal data of the culprit to the extent required
in the verdict on sentence, However, in the Criminal Procedure Bill, 1973,
Parliament has wisely written into the law a post conviction stage
when the
judges shall "hear the accused 011 the question of sentence and then pass set~tence
on him according to law."
r334 Cl
The unn1istakable shift in legislative en1phasis is that life imprisonn1ent for
murder is the rule and capital sentence the exception to be resorted
to
for
reasons to be stated.
The disturbed conscience of the state on
the
vexed
question of legal threat to life by way of death sentence has sought to express
itself legislatively, the stream
of
tendency being towards cautious partial
abolition and the retreat from total retention.
[336 HJ
Code of Criminal Procedure Section 367(5) as amended by Act 26
of
1955; Criminal Procedure Bill, 1973, Sections 235, 238 and 354(3); lndian
Penal Code (Amendment) Bill, 1972, SCction 122, referred to.
(ii) The case on hand has to be disposed of under the present Code and
the Court has to fall back upon the method of judicial hunch in imposing or
avoiding capital sentence aided by such circumstances as are present on the
record introduced for the purpose of proving guilt. [334 DI
(iii) In the present case the criminal's social and personal
factors, . her
fen1inity and youth, her unbalanced sex and expulsion from the conjugal home
and being the mother of a young boy-these individually
inconclusive
and
cumulatively marginal facts and circumstances tend towards awarding of life
imprisonment.
[339 B-Cl
Further, the Sessions Judge pronounced the death penalty on
DeL"Cmber,
31, 1971 and the appeal is being heard in February 1974. This prolonged agony
has ameliorative impact according to the rulings of this Court.
Piara Dusad/1 v. Efnoeror A.I.R. t 944 F.C.I.; N. Sreeramula v. State of
Andhra Pradesl1, 1973 C.L.J. 1773; State of Bihar ''- Pasl1upati Si11glt, A.l.R.
I 973 S.C. 2699. referred to.

## Text

A
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EDIGA ANAMMA
v.
STATE OF ANDHRA PRADESH
February 11, 1974.
[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
Cri111i1wl Law-Practice and Pror:edure--Of]ence of 11111rdeJ·--Circu111sta11c,•s
justifying lesser sentence.
The appellant, a rustic young .woman, flogged out of her husband's house
by her father-in-law, was living with her
parents with her only child.
She
committed a premeditated, cleverly planned murder of another young woman
and her child became of rivalry between the appellant and the murdered woman
for tb.e affections of an illicit lover.
The Sessions court awarded the death
iiCDtence and the High Court confirmed.
C
In appeal to this Court.
D
E
F
G
HELD: The death sentence must be dissolved and life sentence substituted.
(i) Modern penology regards crime and criminal as equally material when
the right sentence has to be picked out although in our processual system there
is neither comprehensive provision nor adequate machinery for collection and
presentation of social and personal data of the culprit to the extent required
in the verdict on sentence, However, in the Criminal Procedure Bill, 1973,
Parliament has wisely written into the law a post conviction stage
when the
judges shall "hear the accused 011 the question of sentence and then pass set~tence
on him according to law."
r334 Cl
The unn1istakable shift in legislative en1phasis is that life imprisonn1ent for
murder is the rule and capital sentence the exception to be resorted
to
for
reasons to be stated.
The disturbed conscience of the state on
the
vexed
question of legal threat to life by way of death sentence has sought to express
itself legislatively, the stream
of
tendency being towards cautious partial
abolition and the retreat from total retention.
[336 HJ
Code of Criminal Procedure Section 367(5) as amended by Act 26
of
1955; Criminal Procedure Bill, 1973, Sections 235, 238 and 354(3); lndian
Penal Code (Amendment) Bill, 1972, SCction 122, referred to.
(ii) The case on hand has to be disposed of under the present Code and
the Court has to fall back upon the method of judicial hunch in imposing or
avoiding capital sentence aided by such circumstances as are present on the
record introduced for the purpose of proving guilt. [334 DI
(iii) In the present case the criminal's social and personal
factors, . her
fen1inity and youth, her unbalanced sex and expulsion from the conjugal home
and being the mother of a young boy-these individually
inconclusive
and
cumulatively marginal facts and circumstances tend towards awarding of life
imprisonment.
[339 B-Cl
Further, the Sessions Judge pronounced the death penalty on
DeL"Cmber,
31, 1971 and the appeal is being heard in February 1974. This prolonged agony
has ameliorative impact according to the rulings of this Court.
Piara Dusad/1 v. Efnoeror A.I.R. t 944 F.C.I.; N. Sreeramula v. State of
Andhra Pradesl1, 1973 C.L.J. 1773; State of Bihar ''- Pasl1upati Si11glt, A.l.R.
I 973 S.C. 2699. referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67
of 1973.
H
Appeal by Special Leave from the Judgment and Order dated
the 24th March, 1972 of the Andhra Pradesh High Court in Criminal
Appeal No. 12 of 1972 and Referred Trial No. I of 1972.
::J 30
SUPREME COURT REPORTS
[ 1974] 3 S.C.R.
R. P. Kathuria, an1icus curiae for the appellant.
P. Ram Reddy and P. P. Rao for the respondent.
The Judgment of the Court was delivered bv
KRISHNA IYER, J.
In a rural region of Andhra Pradesh Frendian
fury cl'. explosion of sex jealousy expressed
itself
in 2
gruesome
murder of a young woman and her tender child by the accused, a
young woman, with an only child ~en years old, all, because notwithstanding both being married, they had invested amorous affections in
a middle-aged libertine, P.W. 16, conveniently a widower.
It is an
admitted fact that the accused, although married, was keeping illicit
relations with P.W. 16, a shepherd, but she discovered that lately her
paramour was on flirting contacts with the deceased.
This knowledge
angered her so much that she extinguished the life of her rival on
November 4 .. 1971 in the afternoon in a jungle,
manipulating her
murderous venture so cleverly that for a time people thought that she
was the murdered and searched for her body. Closer enquiry revealed
that the victim was Ansuya and the other innocent one her baby less
than two years old.
Shri Kathuria, appearing as an1icus
curiae,
has
presented
a
pr.instakingly meticulous argument on behalf of the prisoner, who bas
bocn condemned to death by the courts below. It is but meet that we
'1pprcciate the industrious advocacy enthusiastically made
by
this
young advocate.
By sundown on November 4, 1971 a cadaver was found in a field
outside the village of Konapur, Medak District, Andhra Pradesh. The
deceased was a damsel who was first mistaken to be the
accused
because her face had been burnt out of recognition and on her body
was found clothing which belonged to the accused-a device resorted
to, as later evidence discloses, by the accused to throw enquirers off
the scent.
On November 8, 1971 the dead body of a baby, Nirmala.
daughter of Ansuya, the deceased, was recovered from the sand bed
·of a stream near the field.
Investigations disclosed that Anamma, the
accused, was the perpetrator of this fiendish crime. She
was
duly
prosecuted, convicted and sentenced to death for
the offence of
murder and life imprisonment for secreting evidence of the crime,
under s.201. I.P.C. An appeal by the accused and a referred trial
under the Code resulted in a Bench of the High Court affirming the
guilt and upholding the sentence.
A jail appeal has come before us,
argued by Shri Kathuria as amicus curiae.
The people involved are more or less primitive rustics and sex
inhibitions do not appear to have interdicted private philandering.
The prisoner bad been married to P. W. 7 of Ankenpally, three miles
distant from Konapur where her parents. resided.
Carnal knowledge
with p. W: 16 developed even when she was in her husband's house
and she manifested her passion by stealing gold rings from the house
of one Rachappa to make it over to P. W. 16 as a memento of her
illicit love.
Indeed, this little stealing, induced by
her
improper
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EDIGA ANAMMA v. A, P. STATE (Krishna Iyer, ].)
331
A
relations with P. W. 16, was discovered. She suffered flagellation from
her father-in-Jaw for this act, and her father, P. W. 2, removed her
to his own house as a sequel.
The setting of Konapur did not stand
in the way of her continued intimacy with P. W. 16, who responded
by shifting to this village himself.
II
· The deceased, Ansuya, was the wife of P. W. I 2 who was, as
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ill-luck would have it, the neighbour of the accused's family. Opportunity tempted and Ansuya also established erotic contact with that
lascivious, P.W. 16. The prisoner, in due course, came to know
about the shifting of affections by her paramour who tried to bluff
her in vain.
Fired by jealously the prisoner fixed her mind upon
liquidating her rival.
On November 4, 1971 at about 3 p.m. the ill-starred Ansuya had
left for the fields taking the baby with her.
The accused tempted and
shadowed her, with some clothes from her house to be washed in the
the village stream. P. W. I 5, P. W. 4 and P. W. 13 have given
testimony which, if believed, will show that the accused
end
the
deceased were seen together in the fatal field at about 5 p.m., the
V'1Y the mother and child died.
It is said that the accused had removed a chisel from her house as she prooeeded to the field and used
it to lethal purpose. The medical evidence shows that Ansuya and
Nirmala were stabbed to death with a chisel identified by the accused's
own father, P. W. 2, and the blacksmith who made it, P. W. 15.
Apparently overborne with uncontrollable hatred for the woman who
hijacked her paramour's sexual affection, the accused bad planned to
kiil with cunning. The manner of stabbing to death was bad enough;
it was more brutal for her to have disfigured the face o! the victim
which was found burnt.
With a view to mislead and thereby evade
ca<y detection ·she removed from the deceased's body her clothes and
clothed it with a langha belonging to herself. She removed the child's
't!otly, wrapped it in a piece of cloth brought by her and buried it
beneath the river sand. Thereafter she made towards the house of
P.W. 11, her uncle, told P.W. 16 what she had done and pressed
him to elope with her. The sense of safety of P.W. 16 prevailed
over his urge for sex relations with this girl and so he declined to
follow her. The desparate woman left for her husband's village,
while a search for her was being made by P. W. 2, her father.
The
dead body in the field was found covered with the accused's clothing
ond beguiled by this circumstance P. W. 2 reported to the police
Patel, P.W. 5 (Ex. P 1) that his daughter had been murdered.
perhaps by her father-in-law. Taken in by this report, the Patel
informed the police and the Sub-Inspector, P. W. 26, proceeded to
the scene of occurrence, held inquest and sent the body for postmortem examination. P. W. 22, the doctor, did the autopsy in the
afternoon of November 5, 1971 and the body was brought back to
Konapur by sundown.
The Inspector of Police took over the investigation, took into custody the clothes near the scene and questioned a
number of persons in the village.
The tragic body was being made
ready for cremation when the Patel of village Ankanpally,. P.W. 10,
332
SUPREME COURT REPORTS
ll974 J 3 S.C.R.
moved down to the place with the accused, to the bewilderment of the
people gathered.
Meanwhile, P. W. 12, the husband of Ansuya
finding his wife and child missing, went in search of them in vain'.
The tidings came of the dead body and the revelation that it was not
that of the accused, as originally suspected.
So apprehension turned
on the dead body being that of Ansuya. They went to the place but
it was night and the next morning, i.e., November 6, 1971, P. W. 12-·
the husband-and P. W . 13-the mother-in-law-examined the corpse
and to their shock discovered it to be the body of Ansuya.
A Panch·
nama, P-10, was prepared. P. W. 12 reported to the police officer,
P.W. 27 (Ex.P-2) and investigations revived in the new direction.
P. W. 27 sent for the accused, who wanted to see her son, and they
all met at the police station. P .W. 16 turned up at the police station,
and breaking down perhaps under the stress of all that had happened,
the accused said that she would confess.
Ex. P-7. the confession, was
recorded which led to the discovery of the child's body, the bundle
containing the burnt clothes and chisel, etc. (Ex. P-8). The langha
of the accused was also recovered (Ex. P-9). Post-mortem was done
over the body of the child, the accrised was arrested and eventually she
was charged with offences under s. 302 ands. 201, I.P.C
Of course, there is .no direct evidence in the ~asc but the prosecu·
tion has placed a clinching wealth of circumstances and an extrajudicial confession to p. w. 16 to substantiate its version. It is trite
law that Ex. P-7, the confession made while in police custody, is
inadmissible except to the narrow extent salvaged by discoveries made
in terms of s. 27 of the Evidence Act. We are left, therefore, with the
confessional statement made to P. W. 16 orally. If it can be invested
with veracity the guilt of the accused is virtually made out. But it is
common-place law-and vehemently urged-that a retracted confession
made orally to a near-villain like P. W. 16, who had reason to play
for safety, was liab~ to be rejected without a second look at the
statement.
The High Court-and the Sessions Court-have considered the many weaknesses relating to this confession.
Those defects
have been pointed as deadly by counsel for the appellant. We are satisfied that the credence given to it by the courts below cannot be treated
as strange or otherwise seriously erroneous.
Certainly he had no illfeeling for the accused and nothing palpably improbable has been made
out fa the spontaneous unburdening of her bosom by the accused in
distre~, hastening to her paramour after the murder in the hope
that she would now vanish with her lover, and telling him the murderuus truth.
Marginal mistrust generated by counsel's argument is
inadequate to reject the testimony of P.W. 16. However, there are
circumstances attaching to his whereabouts and the slight delay in his
statemer.t to the police and the dubiety of his character which permitted his openly wearing a stolen gold ring received from another
man's wife. It is but fair, therefore, for the Court to search fo1
convincing ~orroboration. The precedents cited before us by counsel
for the appellant take us no further than the need to ask for satisfactory
reinforcement of a retracted confession. not too good to be treated 3<
su!lidcnt in itself to fasten the guilt.
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EDIGA ANAMMA v. A. P. STATE (Krishna Tyer, /,)
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We are, therefore, thrown to the task of evaluating the circums..
lances and the extent to which they buttress up the sclf·incriminatiou
content in the confession.
Motive by itself is not much, particularly in the absence of direct
evidence, but in the company of other factors it plays a probative
role.
The discovery of the child's dead body and the clothes belonging to the accused, as well as the chisel of P. W. 2, the father, which
was admittedly missing, are a clear pointer to the guilt, although by
then1selves do not cover the entire distance from "may be" to "mu.st
be" in the proof of guilt.
The noose of guilt is tightened by
the
testimony of P. Ws. 4, 13 and 15. P. W. 13, the mother-in·l~)V of
Ansuya, deposed that the deceased, her daughter-in-law, went out to
fetch vegetables from the fields and the accused was seen following
her with a bundle of clothes to wash them in the stream.
P, W. 15,
an apparently disinterested inan, speaks of having seen the accused at
Khallam at about 5 p.m. near where the deceased also was.
Although
the trial court did not choose to believe him,
the
appellate court
thought that it was not risky to rely on his testimony. P. W. 4 also
swore to having seen the accused at Khallam at about sundown on the
relevant date.
This shepherd also states that he saw the deceased
collecting firewood near about there and heard the cries of a girl.
There has been a detailed discussion of the evidence of these witnesses
by the High Court and notwithstanding the attempt elaborately made
by Shri Kathuria, the evidence of these witnesses has not been fractured or rendered incredible.
The fact that the accused was seen last with the deceased in a
place where and at a time when few others were around, the fact
that the deceased's body was covered cleverly by the clothes of the
accused-foolishly, as we now see by hind-sight-the discovery of telltale clothes off the baby's body, the lethal chisel, her blood-stained
· skiri concealed in the bush, all strongly probabilise the truth of the
confession. In a well-considered judgment the learned Judges of the
High Court have covered all the relevant evidence and reached the
unhesitating conclusion that the accused had done to death Ansuya
and Nirmala. Shri Kathuria's persistent effort to attack almost every
part of the prosecution evidence testifies to his industry,
which
we
appreciate, but hardly carries conviction. All the circumstances converge towards the focal point of guilt of the accused, her fatuous
assumption that others would be deceived along a wrong trail has failed, and the impending cremation which would have blotted out a vital
evidence was averted and truth has come out. We have hardly any
doubt that the conviction deserves to be confirmed.
Counsel for the State correctly drew our attention to
the great
limitations on the exercise of the extraordiilary jurisdiction under
art. 136 of the Constitution, particularly, when dealing with the con·
current findings of fact.
He is right in contending that
We should
dismiss arguments which nibble at the credibility of witnesses.
But
finding the case hanging on a retracted extra-judicial confession from
9 L9;4 Sup Cf)74
334
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
a person who does not necessarily inspire great confidence, corroborJ.ted only by circumstantial evidence, we thought it proper to make a
conscientious search to see if truth had been reached and n1iscarriage of
justice averted.
We are satisfied, as already stated, that the accused's
guilt, to the extent human instruments can apprehend, has been made
out.
Guilt once established, the punitive dilemma begins. The choice
between death penalty and life term-has to be made in a situation
which is not altogether satisfactory. Modern penology regards crime
and criminal as equally material when the right sentence bas to be
picked out, although in our processual system there is neither comprehensi~· provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence.
However, in the Criminal Procedure
Code, 1973, about to come into force, Parliament has wisely written
into the law a post-<:onviction stage when the Judges shall "hear the
accused on the question of sentence and then pass sentence on him
according to law."
(s. 235 & s. 248).
The case on hand has to be disposed of under the present Code
and we have to fall back upon the method of. judicial hunch in
imposing or avoiding capital sentence, aided by such circumstances as
are present on the record introduced for the purpose of proving guilt.
We are aware that in Jagmohan Singh v. State of U.P.(1), there was
an argument about the absence_ of procedure laid down by the law for
determining whether the sentence of death or something less is appropriate in the case.
The Court viewed this criticism from the constitutional angle and observed :
"The Court is primarily concerned with all the facts and
circumstances in so far as they are relevant to the crime and
how it was committed and since at the end of the trial he is
liable to be se_ntenced, all the facts and circumstances bearing
upon the crime are legitimately brought to the notice of the
court. Apart from the cross-examination of the witnesses,
the Criminal Procedure Code requires that the accused must
be questioned with regard to the circumstances appearing
against him in the evidence. He is also questioned generally
on the case and there is an opportunity for him to say
whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material
facts.. Again he and his counsel are at liberty to address
the court not merely on the question of guilt but also on the
question of sentence.
In important cases like
murder
the court always gives a chance to the accused to addre'8
the court on the question of sentence."
...
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"The sentence follows the conviction, and it is true that
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no formal procedure for producing evidence with reference
---
(I) (1973} I S. C. C. 20.
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EDIGA ANAMMA v. A. P. STATE (Krishna Iyer, J.)
335
10 the sentence is specifically provided. The reason is that
relevant facts and circumstances impinging on the ·nature
and circumstances of the crime are already before the
court.''
·
In any scientific system which turns the focus, at the sentencing
stage, not only on the crime but also the criminal, and •eeks to
personalise the punishment so that the reformatory component is as
much operative as the deterrent element, it is essential that facts of
a social and personal nature, sometimes altogether irrelevant if not
injurious at the stage of fixing the guilt, may have to be brought to
the notice of the Court when the actual sentence is determined.
The prisoner is a young womaμ of 24 flogged out of her husban~'s
house by the father-in-law, living with her parents with
her only
ch.ild, -
sex-starved and single. The ethos of the rural area where
the episode occurred does not appear. to have been too strict or
inhibitive in matters of sex, for the deceased and the accused v.ere
both married and still philandered out of wedlock with P. W. 16, a
middle-aged widower who niade no bones about playing the freelance romancer simultaneously with them.
Therefore, the accused
incautiously slipped down _into the sex net spread by P. W. 16, and
while entangled and infatuated, discovered in the deceased a nascent
rival.
With th., reckless passion of a jealous mistress she planned
to liquidate her competitor and crudely performed the double murder,
most foul.
Perhaps it may be a feable extenuation to remember that
the accused is a young woman who attended routinely to tbe choreo
of domestic drndgery and allowed her flesh to assert itself salaciously
when invited by uncensured opportunity for lonely meetings with
P. W. 16. It may also be worth mentioning that, apart from her
youth and womanhood, she has a young boy to look after. What
may perhaps be an extrinsic factor but recognised by the court as of
humane significance in the sentencing context is the brooding horror
of 'hanging' which has been haunting the prisoner in her condemned
cell for over two years. The Sessfons Judge pronounced the death
penalty on December 31, 1971, and we are now in February 1974.
This prolonged agony has ameliorative impact
according
to
the
rulings
of this Court. The leading case in Piara Dusadh v.
Emperor(') was relied upon by this Court in N. Sreerarnula v.
State of Andhra Pradesh( 2 ). "The following passage from the Federal
C.Ourt decision is telling :
"In committing the offence the appellant must have been
actuated by jealousy or by indignation either of which would
tend further to disturb the balance of his mind. He has be-
·~ides been awaiting the execution of this death sentence for
over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death."
·
m A. I. R. [1944] F. C. L
(2) (1974) c. L. J. 1775.
336
SUPREME COURT REPORTS
£ 19741 3 s.c.a.
The decision in State of Bihar v. Pashupati Singh(') strikes a similar
note. Although this consideration is vulnerable to the criticism made'
by counsel for the State that as between two capital sentence cases that
which is delayed in its ultimate disposal by the courts receives \he less
terrible punishment while the other beard with quick despatch, for that
very reason, fails to relieve the victim from condemnation to death.
In tjiis unclear situation it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being
left to ad hoc forensic impressionism to decide for life or for death.
Even so, such sentencing material as we have been able ·to salvage from
the guilt material in the paper book persuades us to award life imprison•
ment to the prisoner and modify to that extent the death sentence imposed by the courts below.
It behoves us to indicate why we .have chosen this course. In the
twilight of Jaw in this area, we have been influenced by the seminal
trends present in the current sociological thinking and penal strategy
in regard to murder. We have also given thought to the legal changes
wrought into the penal code in free India. We confess to the impact
made on us by legislative and judicial approaches made in other countries although we have warned ourselves against transplanting into our
country concepts and experiences valid in the West
It cannot be en1phas.ised too often that crime and punishment are
functionally related to the society in which they occur, and Indian conditions and stages of progress must dominate the exercise of judicial
discretion in this case.
In India the subject of capital punishment has abortively como before Parliament earlier, although our social scientists have not made any
sociological or statistical study in depth yet. On the statutory side there
has been a significant change since India became free. Under s. 367(5}
of the Criminal Procedure Code, as it stood before its amendment by
Act 26 of 1955, the normal rule was to sentence to death a person convicted for murder and to impose the lesser sentence for reasons to be
recorded in writing.
By amendment, this provision was deleted with
the result that the court is now free to award either death sentence or
life imprisonment, unlike formerly when death was the rule and life
term the exception, for recorded reasons. In the new Criminal Procedure Code, 1973 a gr~at change has overtaken the law. Section 354 (3)
reads :
"354(3) 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."
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The unmistakable shift in legislative emphasis is that life imprisona
ment for murder is the rule. and capital sentence the exception to be
(1) A. I. R. 1973 S. C. 2699.
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EDIGA ANAMMA v. A. P. STATE (Krishna Iyer, J.)
337
resorted to for reasons to be stated. In this context it may not be out of
place to indicate-not that it is conclusive since it is now tentativethat under the Indian Penal Code (Amendment) Bill, 1972, s. 302 of
the Penal Code has been substituted by a less harsh provision limiting
death penalty to a few special cases (vide s. 122 of the new bill).
It is obvious that the disturbed conscience of the State on the vexed
question of legal threat to life by way of death sentence has sought to
express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat frohl total retention.
Jagmoha11 Singh(1) has adjudged capital sentence constitutional and
whatever our view of the social invalidity of the death penalty, personal
predilections must bow to the law as by this Court declared, adopting
the noble words of Justice Stanley Mosk of California uttered in a death
sentence case : "As a judge, I am bound to the law as I find it to be
and not as I fervently wish it to bo". (The Yale Law Journal. Vol. 82,
No. 6, P.l 138). Even so, when a wise discretion vests in the court,
what arc the guidelines in this life and death choice? The humanism
of our Constitution, echoing the concern of the Universal Declaration
of Human Rights, is deeply concerned about the worth of the human
person.
Ignoring the constitutional
content of Anderson('), and
Furman('), the humanist thrust of the judicial vote against cruel or unusual punishment cannot be lost on the Indian judiciary. The deterrence strategists argue· that social defence is served only by its reten·
tion,-thanks
to the strong association between murder and
capital
punishm~nt in the public imagination,-while the correctional therapists urge the reform of even murderers and not to extinguish them by
execution. History hopefully reflects the march of civilization from
terrorism to humanism and the geography of death
penalty depicts
retreat from country after country. The U.K. and the U.S.A. are notable
instances.
Among the socialist nations
it has
been restricted
to
very aggravated forms of murder. The lex talionis principle of life for
life survives in some States still, only to highlight that in punitive practice, as in other n1attcrs we do not live in 'one world' but do Jnove
zigzag forward to the view that the uniquely deterrent effect of death
penalty is, in part, challenged by jurists, commissions and statistics.
But as a counterweight we have what an outstanding justice of the Ontario appeal court said some years ago(') :
"The irrevocable character of the death penalty is a reason why all possible measures should be taken against injustice-not for its abolition. Nowad?ys, with the advent of
armed criminals and the substantial increase in armed robberies, criminals of long standing if arrested, must expect long
sentences.
However, if they run no risk of hanging, when
found guilty of murder, they will kill policemen and witnesses
with the prospect of a future no more unhappy, as one of them
put it. than being fed, lodged, and clothed for the rest of their
Jives."
(I) 119731 1 s. c. c: :o.
(3) 408 U S-218
(2) JOO California Reporter 152
(4) Capital Punishrnenl-Thorstn Sellin p, 83
338
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
The final position, as we see it, is neither with the absolute abolitionist nor with the Mosaic retributionist. Jt is relativist, and humanist,
conditioned by the sense of justice and prevailing situation of the given
society. In England, men once believed it to be just that a thief should
lose his life (as some Arab Chieftains do to-day) but the British have
gone abolitionist now without regrets. In contemporary India, the via
media of legal deprivation of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws.
While deterrence through threat of death may still be a promising
•trategy in some frightful areas of murderous crime, to espouse a monolithic theory of its deterrent efficacy is unscientific and so we think it
right to shift the emphasis, to accept composite factors of penal strategy
and not to put all the punitive eggs in the 'hanging' basket but hopefully to try the humane mix.
We assume that a better world is one without legal knifing of life,
given propitious social changes. Even so, to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral
values, socio-economic conditions and legislative judgment have a role.
Judicial activism can only be a signpost, a weather vane, no more. We
think the penal direction in this jurisprudential journey points to life
prison normally, as against guillotine, gas chamber, electric chair, firing
squad or .hangmen's rope. 'Thou shalt not kill' is a slow commandment
in law as in life, addressed to citizens as well as to States, in peace as in
war.
We make this survey to justify our general pr<0ference wheres. 302
keeps two options open and the question is of great moment.
Let us crystallise the positive indicators against death sentence under
Indian Law currently. Where the murderer is too young or too old, the
clemency of penal justice helps him. Where the offender suffers from
socio-economic, psychic or penal compulsions insufficient to attract a
legal exception or to downgrade the crime into a lesser one, judicial
commutation is permissible. Other general social pressures, warranting
judicial notice, with an extenuating impact may, in special cases, induce
the lesser penalty. Extraordinary features in the judicial process, such
as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise,
if others involved in the crime and similarly situated have received the
benefit of life imprisonment or if the offence is only constructive, being
under s. 302 read with s. 149, or again the accused has acted suddenly
under another's instigation, without premeditation, perhaps the court
may humanely opt for life, even like where a just cause or real suspicion
of wifely infidelity pushed the criminal into the crime. On the other
hand, the weapons used and the manner of their use, the borrandous features of the crime and hapless, helpless state of the victim, and the like,
steal the heart of the law for a sterner sentence. We cannot obviously
feed into a judicial comput.er all such situations since they are astrological imponderables in an imperfect and undulating society. A legal
A
B
c
D
E
F
G
H
A
B
c
D
E
EDIGA ANAMMA v. A. P. STATE (Krishna Iyer, J.)
339
policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributiv-o ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting
out life.
Here, the criminal's social and personal factors are less harsh, her
leminity and youth, her unbalanced sex and expulsion from the conjugal
home and being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances tend towards
award of life imprisonment. We realise the speculative nature of. the
correlation
between crime and punishment in this case, as in many
others, and conscious of fallibility dilute the death penalty. The larger
thought that quick punishment, though only a life term, is more deterrent than leisurely judicial death award with liberal interposition of
executive clemency, and that stricter checking on illicit weapons by the
police deters better as social defense against murdetous violence than a
distant death sentence, is not an extraneous component in a court verdict on form of punishment.
We have indicated enough to hold that, marginal vaccilation notwithstanding, the death sentence must be dissolved and life sentence
substituted. To this extent the appeal is allowed, but otherwise the conviction is confirmed.
K.B.N.
Appeal allowed in part.