# HARN AM v. STATE OF U.P

- **Citation:** [1976] 2 S.C.R. 274
- **Court:** Supreme Court of India
- **Decided:** 1974-02-22
- **Case number:** Criminal Appeal No. 277 of 1974
- **Bench:** P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harn-am-v-state-of-u-p-6788
- **Pages:** 4

## Headnote

Penal
Code-Murder-Sentence
to
be
imposed-Life
imprisonme1•~
Capital. punishment-When could be imposed.
The legislative history in regard to the subject of ·~apital punishment shows
tha.t there has been a significant change in thinking and approach since India
became free.
Prior to the amendment of s. 367(5) of the Code of Crimmal
Procedure by Act 26 of 1955, the normal rule was to impose sentence of
death on a person convicted for murder and if a lesser sentence was to be
imposed, the Court was required to record reasons in writing.
But by Act 26
of 1955, this provision in s. 367 (5) was omitted with the result that the Court
became free to award either death sentence or life imprisonment, and no
longer was death sentence the rule and life imprisonm~nt the exception. Then
again a further progress was made in the same direction by s. 354 (3) of the
Criminal Procedure Code, 1973. That section provides that 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 senten~e of
death, the special reasons for such sentence. The unmistakable shift in the
legislative emphasis is that for murder, life. imprisonment should be the rule
and capital punishment the exception to be resorted to only for special redsons.
lt is only where, in view of the peculiar facts and circumstances, there are
spe~ial reasons that the death sentence may be awarded : otherwise life sentence
offence would certinly be "too young." [277G; E, Fl
The seminal trends in current sociological thinking and penal strategy,
tempered as they are by humanistic attitude and deep concern for the worth
of the human person, frown upon death penalty and regard it as cruel a11d
savage punishment to be inflicted only in exceptional cases. [276G]
In the instant case the appellant was charged with an offence of murder
by severing the head of the
de~eased from the body and then carrying it
away in a most brutal and inhuman manner. The trial conrt convicted and
sentenced him to death.
Both the conviction and sentence were upheld by the
High Court.
·
On the question of sentence,
Allowing the appeal to this Court,
HELD : The appellant was just around 16 years of age at the time when
he committed the offence and, therefore, he would be entitled to the clemency
of penal justice. It would not be appropriate to impose the extreme penalty
of death.
Taking into account the current sociological and juristic thinking
as could be seen from the recommendation of the Law Commission which
appears to have been incorporated in the Indian Penal Code (Amendment)
Bill. J 972, it would be legitimate for the Court to refuse to impose death
sentence on an accused convicted of murder, if it finds that at the
~ime
of the commission of the offence the appellant was under 18
years
of
age.
A murderer who is below 18 years of a.ge at the time of commission of the
offence would certainly be "too young." [277G; E, Fl
E. Anamma v. State of Andhra Pradesh, A.I.R. 1974 S.C. 799, followed.
. ._,.
"'
·;
--
HARNAM v. U.P. STATE (Bhagwati, J.)
275

## Text

0
Ill
274
HARN AM
v.
STATE OF U.P.
October IO, 1975
[P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
Penal
Code-Murder-Sentence
to
be
imposed-Life
imprisonme1•~
Capital. punishment-When could be imposed.
The legislative history in regard to the subject of ·~apital punishment shows
tha.t there has been a significant change in thinking and approach since India
became free.
Prior to the amendment of s. 367(5) of the Code of Crimmal
Procedure by Act 26 of 1955, the normal rule was to impose sentence of
death on a person convicted for murder and if a lesser sentence was to be
imposed, the Court was required to record reasons in writing.
But by Act 26
of 1955, this provision in s. 367 (5) was omitted with the result that the Court
became free to award either death sentence or life imprisonment, and no
longer was death sentence the rule and life imprisonm~nt the exception. Then
again a further progress was made in the same direction by s. 354 (3) of the
Criminal Procedure Code, 1973. That section provides that 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 senten~e of
death, the special reasons for such sentence. The unmistakable shift in the
legislative emphasis is that for murder, life. imprisonment should be the rule
and capital punishment the exception to be resorted to only for special redsons.
lt is only where, in view of the peculiar facts and circumstances, there are
spe~ial reasons that the death sentence may be awarded : otherwise life sentence
offence would certinly be "too young." [277G; E, Fl
The seminal trends in current sociological thinking and penal strategy,
tempered as they are by humanistic attitude and deep concern for the worth
of the human person, frown upon death penalty and regard it as cruel a11d
savage punishment to be inflicted only in exceptional cases. [276G]
In the instant case the appellant was charged with an offence of murder
by severing the head of the
de~eased from the body and then carrying it
away in a most brutal and inhuman manner. The trial conrt convicted and
sentenced him to death.
Both the conviction and sentence were upheld by the
High Court.
·
On the question of sentence,
Allowing the appeal to this Court,
HELD : The appellant was just around 16 years of age at the time when
he committed the offence and, therefore, he would be entitled to the clemency
of penal justice. It would not be appropriate to impose the extreme penalty
of death.
Taking into account the current sociological and juristic thinking
as could be seen from the recommendation of the Law Commission which
appears to have been incorporated in the Indian Penal Code (Amendment)
Bill. J 972, it would be legitimate for the Court to refuse to impose death
sentence on an accused convicted of murder, if it finds that at the
~ime
of the commission of the offence the appellant was under 18
years
of
age.
A murderer who is below 18 years of a.ge at the time of commission of the
offence would certainly be "too young." [277G; E, Fl
E. Anamma v. State of Andhra Pradesh, A.I.R. 1974 S.C. 799, followed.
. ._,.
"'
·;
--
HARNAM v. U.P. STATE (Bhagwati, J.)
275
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 277 of
1974.
Appeal by Special Leave from ·the Judgment and Order dated the
22nd February, 1974 of the Allahabad High Court Lucknow Bench in
Criminal Appeal No, 498 of 1973 and Capital Sentence No. 13 of
1973.
A. N. MuUa and N. S. Das Behal for the appellant.
0. P. Rana for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.-This appeal, by special leave, is limited only
to
the question of sentence.
The appellant has been
sentenced
l:o
death for an offence under s. 302 of the Penal Code. The question
is : Should the extreme penalty of death be commuted to one of
life imprisonment ? To answer the question it is necessary to state
a few facts.
The appellant and a few others were tried in the Court of the
Sessions Judge, Unnao for offences under s. 148 and s. ·302 read
with s. 149 of the Indian Penal Code.
The learned Sessions Judge,
on an appreciation of the evidence, found that the appellant, Sheo
Dayal, Mihi Lal, Dularey and Mewa Lal had formed
an
unlawful assembly and in pursuance of its common object, the appellant
had intentionally caused the death of one Ram Kumar by inflicting
on him a severe injury with a banka severing his head from the body
and then carried away thy head in an anga,ucha in a most brutal
and inhuman fashion.
On this finding, the learned Sessions
Judge
convicted the appellant, Sheo
Day,al,
Milli
Lal,
Dularey
and
Mewa Lal of offences under s. 148 and s. 302 read with s. 149 and
sentenced each of them to rigorous imprisonment for one year for the
former offence and to death for the latter.
The appellant, Shea
Dayal, Mihi Lal, Dularey and Mewa Lal preferred an appeal to the
High Court against the order of conviction and sentence recorded
against them and their case was. also referred to the High Court for
confirmation of the death sentence.
The High Court agreed with the
findings reached by the learned Sessions Judge and confirmed the
conviction of Sheo Dayal, Mihi Lal, Dularey and Mewa Lal under
s. 148 and s. 302 read with s. 149, but reduced their sentence to one
of life imprisonment for the offence under s. 302 read with s. 149 and
so far as the appellant was concerned, the conviction was converted
to one under s. 302 and the sentence of death was maintained.
The
appellant thereupon preferred an application for special leave and on
that application, special leave \Vas granted by this Court limited only
to the question of sentence.
Now, there can be no doubt that the crime committed by the
appellant was a most reprehensible and heinous crime which disB
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F
G
H
A
c
0
E
F
G
H
276
SUPREME COURT REPORTS
[1976] 2 S.C.R.
closed brutality and callousness to human life and no extenuating
circumstances could be pointed out on behalf of the appellant which
would assuage the conscience of the Court and persuade it
not
to
inflict the extreme penalty of
d-~ath on the appellant.
The only
circumSitance on which reliance could be placed on behalf of the
appellant for mitigating the rigour of the punishment to be inflicted on him was his tender age at the time of the commission of the
offence.
The record of the case shows that the appellant was· about
sixteen years of age at the time when he committed
this
brutal
crime.
The question is : whether this could be regarded as a valid
circumstance for invoking the clemency of penal justice ?
The legislative history in regard to the subject of capital punishment shows that there has been significant change in thinking and
approach since India became free.
Prior to the amendment
of
s.
367(5) of the Code of Criminal Procedure by Act 26 of 1955, the
normal rule was to impose sentence of death on a person convicted
for murder and, if a lesser sentence was to be imposed,
the
Court
was required to record reasons in writing.
But by Act 26 of 1955
this provision in s. 367(5) was omitted, with the result that the
Court became free to award either death senknce or life imprisonment and no longer was death sentence the rule and life imprisonment the exception.
Then again a further progress was made in the
same direction by s. 354(3) of the Criminal Procedure Code, 1973.
That section provides that 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 st&tc
the
reasons for the sentence awarded, and, in the case of sentence of death,
the special reasons for such sentence. It will be seen that the umni.•-
takablc shift in the legislative emphasis is that for murder, lifo imprisonment should be the rule and capital punishment the exception to be
resorted to only for special reasons. It is only where, in view of the
peculiar facts and circumstances, there arc special reasons that death
sentnecc may be awarded : otherwise life sentence should be the ordinary rule.
This legislative provision in the new Code of Criminal Procedure clearly shows, as pointed out by Krishna Iyer, J., in E. A 11a111ma
v. State of A ndhra Pradesh (\1), "that the 'disturbed conscience of the
State on the vexed question of legal threat to life by way of death se1.11•
tence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from
total retention."
The seminal trends in current sociological thinking and penal strategy, tampered as they are by humanistic attitude
and deep concern for the worth of the human person frown upon
death penalty and regard it as cruel and savage punishment to be
inflicted only in exceptional oases.
It is against this background
of legislative thinking which reflects the social mood and realities
and the direction of the penal and processual laws that we have to consider whether the tender age of an accused is a factor contraindicative
of death penalty;
(I) A. I. R. 1974 S. C. 799.
' .
I
-<
·v
y
..
-.
HARNAM v. u. P. STATE (Bhdgwati, !.)
277
The Law Commission in the 35th Report made by it on capital
punishment fully conside~ed whether the Indian Penal Code should
specify the minimum age of the offender who can be sentenced to
death and after examining the position under the Children's Acts of
vario~s States it expressed the following opinion :
"We feel that, having regard to the need for uniformity, to the views expressed on the subject, and to the
consideration that a person under 18 can be regarded
<!.s
intellectually immature, there is a fairly
strong case for
adopting the age of 18 as the minimum for death sentence.
we are aware that cases will occasionally arise where a person under 18 is found guilty of a reprehensible killing,
or'
.conversely, a person above 18 is found to be immature and
not deserving of the highest punishment.
A line has, however, to be drawn somewhere and we think that 18 can be
adopted without undue risk.
A
B
c
We, therefore recommend that a person who is under
the age of 18 years at the time of the
commission
of
the offence should not be sentenced to death.
A provi,sion
D
to that effect can be conveniently inserted in the Indian
Penal Code as section 5 5 8."
The Law Commission in its 42nd Report on the Indian Penal Code
agreed with this recommendation of the previous Law Commission
vide paragraph 3.34 of the 42nd Report of the Law Commission.
The Central Government appears to have accepted this recommendation and a provision to that effect is to be found in the Indian
Penal Code (Amendment) Bill, 1972.
This
being
the
current
sociological and juristic thinking on the subject, it would be legitimate for the Court to refuse to impose cleath sentence on an accused
convicted of murder if it finds
that at the time of commission
of the offence he was ·under 18 years of age.
Krishna Iyer, J., also
pointed out in E. Anamma v.
State of Andhra Pradesh
(supra)
that "where the murderer is too young-the clemency of penal justice helps him", and a murderer who is below 18 years age at the
time of the commission of the offence would certainly
be
"too
young".
·
Tl:w appellant in the present case was, as pointed out above,
just around 16 years of age at the time when he committed the
offence and, therefore, in the. light of the above discussion he would
be entitled to the elemency oJl penal justice and it would not be
appropriate to impose the extreme penalty of death on him.
We
accordingly commute the sentence of death imposed on the appellant
and convert it to one of life imprisonment.
P.B.R.
Appeal allowed
E
F
G
and sentence reduced.
H