# RAJENDRA PRASAD ETC. ETC v. STATE OF UTTAR PRADESH ' - **Citation:** [1979] 3 S.C.R. 78 - **Court:** Supreme Court of India - **Decided:** 1979-02-09 - **Case number:** Criminal Appeal No. 501/74. AND CRIMINAL APPEAL NO. 513 of 1978 - **Bench:** V. R. Krishna Iyer, D. A. Desai, A. P~ Sen - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajendra-prasad-etc-etc-v-state-of-uttar-pradesh-7803 - **Pages:** 91 ## Headnote c D E F G H P.enal Cod~. 302---Scope of-Death Sentence-When should &e awartled. (Per majority-Krishna Iyer and Desai, JJ.) I. The only question before the Court is a& to when and why shall capital puriishment be pronounced on a murderer and why not in other cases, within the confines of the Code. Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued r~ort k> the death sentence mirrors the uncertainties and conflict& of valuei in the community itself. [89G & 90D] 2. Section 302 of the !PC throws little light on when the CO!lrt mall blang the seQ.tence of why the lesser penalty shall be preferred. Since Jaw reflects life. new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental . to be . permitted except on the gravCit ground and under the s,trictest scrutiny. [90F; 94C-D] 3. To say that discretion of the Judge passiD.g the sentence under s. 302 !PC is guided by well-recognised principles shifts the issue to what thooe recognised rules. are. The big margin 0£ subjectivism. a preference fbr old precedents, theories of modem penology, behavioral emphasis or social an~ cedents, judicial hubris or human ri&hts perspectives, reverence for outworn social philosophers-this plurality of forces play• a part in swinin& the pendulum of sentencing justice erratically. Until Parliament speaks, this Court cannot be silent. [95E; 9701 4. Executive commutation is no substitute for judicial justice, at best it is administrative policy and at worst pressure-based partiality. The criteria for clemency are often different. [99C] 5. In so far as s. 302 !PC is concerned several attempts had been made to restrict or remove dCath penalty but never to enlarge -its Bpplication. Parliamentary pressure has been to cut down death penalty, ·atthongh the section. formally remains the same. In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taldng to life sentence. In other words, the legislative trend seeml!l to be while formerly the rule was to sentence to death a person who is C-Onvicted for murder, it is now to impose a lesser sentence· for reasons to be recorded in writing. Formerly, capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. After 1955 courts, were left equally free to award either sentence. The 1973 Code has made an unmistakable shift in legislative emphasise under which life imprisonment for · murder is the rule and dapital sentence the exception for rc.uons to be stated. [IO!D; 104B-C] ,.,. ... ( ... .. " -'i ~ ~ RAJENDRA V. U.P. STATE 79 6. Ct'iminologists al]. the world over, however, argued that death has deci.. A 11ively lost the battle, and even in our Codes it has 'Shrunk into a, weak excep· tion. What are the exceptional cases ? Personal story of an actor in a shocking- murder, if considered, may bring tears and soften the serttence. He mi,aht have been a tortured child, an -ill-treated 'orphan, a jobless man or the <>onvict's poverty might be responsible for the crime. [106G; 107B] 7. In the post Constitution periods. 302 IPC and s. 345(3) o( the Cr. P.C. llave to be relld in the humane light of Parts III and IV illumined by the Prumble to the Constitution. In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public •rder would be smashed .irretrievably. Such extraordinary grounds alone ~ -constitutionally qualify a.si special r'easons. One stroke of murder hardly qualiL-..., fies for this drastic requirement, however gruesome the killing may be. The 'r 1CArching question the Judge' must put to himself is what is so-extra-ordinari- .,( IJ reas:onab1e as to validate the wiping out of life itself and with it the great • rig\lt• which inhere in him in the totality of facts. [121F; llOE·FJ 8 .. The retributive theory has had its day and is no longer ## Text _Characters 0–39,900 of 243,046. This is a partial read: ask again with offset=39900 for what follows._ / 78 A RAJENDRA PRASAD ETC. ETC. v. STATE OF UTTAR PRADESH ' February 9, 1979 B. [V. R. KRISHNA IYER, D. A. DESAI AND A. P~ SEN, JJ.j c D E F G H P.enal Cod~. 302---Scope of-Death Sentence-When should &e awartled. (Per majority-Krishna Iyer and Desai, JJ.) I. The only question before the Court is a& to when and why shall capital puriishment be pronounced on a murderer and why not in other cases, within the confines of the Code. Urgency to the solution is obvious. The overt ambivalence and covert conflict among judges concerning continued r~ort k> the death sentence mirrors the uncertainties and conflict& of valuei in the community itself. [89G & 90D] 2. Section 302 of the !PC throws little light on when the CO!lrt mall blang the seQ.tence of why the lesser penalty shall be preferred. Since Jaw reflects life. new meanings must permeate the Penal Code. Deprivation of life under our system is too fundamental . to be . permitted except on the gravCit ground and under the s,trictest scrutiny. [90F; 94C-D] 3. To say that discretion of the Judge passiD.g the sentence under s. 302 !PC is guided by well-recognised principles shifts the issue to what thooe recognised rules. are. The big margin 0£ subjectivism. a preference fbr old precedents, theories of modem penology, behavioral emphasis or social an~ cedents, judicial hubris or human ri&hts perspectives, reverence for outworn social philosophers-this plurality of forces play• a part in swinin& the pendulum of sentencing justice erratically. Until Parliament speaks, this Court cannot be silent. [95E; 9701 4. Executive commutation is no substitute for judicial justice, at best it is administrative policy and at worst pressure-based partiality. The criteria for clemency are often different. [99C] 5. In so far as s. 302 !PC is concerned several attempts had been made to restrict or remove dCath penalty but never to enlarge -its Bpplication. Parliamentary pressure has been to cut down death penalty, ·atthongh the section. formally remains the same. In the case of the Criminal Procedure Code the legislative development has shifted the punitive centre of gravity from life taldng to life sentence. In other words, the legislative trend seeml!l to be while formerly the rule was to sentence to death a person who is C-Onvicted for murder, it is now to impose a lesser sentence· for reasons to be recorded in writing. Formerly, capital punishment was to be imposed unless special reasons could be found to justify the lesser sentence. After 1955 courts, were left equally free to award either sentence. The 1973 Code has made an unmistakable shift in legislative emphasise under which life imprisonment for · murder is the rule and dapital sentence the exception for rc.uons to be stated. [IO!D; 104B-C] ,.,. ... ( ... .. " -'i ~ ~ RAJENDRA V. U.P. STATE 79 6. Ct'iminologists al]. the world over, however, argued that death has deci.. A 11ively lost the battle, and even in our Codes it has 'Shrunk into a, weak excep· tion. What are the exceptional cases ? Personal story of an actor in a shocking- murder, if considered, may bring tears and soften the serttence. He mi,aht have been a tortured child, an -ill-treated 'orphan, a jobless man or the <>onvict's poverty might be responsible for the crime. [106G; 107B] 7. In the post Constitution periods. 302 IPC and s. 345(3) o( the Cr. P.C. llave to be relld in the humane light of Parts III and IV illumined by the Prumble to the Constitution. In other words the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public •rder would be smashed .irretrievably. Such extraordinary grounds alone ~ -constitutionally qualify a.si special r'easons. One stroke of murder hardly qualiL-..., fies for this drastic requirement, however gruesome the killing may be. The 'r 1CArching question the Judge' must put to himself is what is so-extra-ordinari- .,( IJ reas:onab1e as to validate the wiping out of life itself and with it the great • rig\lt• which inhere in him in the totality of facts. [121F; llOE·FJ 8 .. The retributive theory has had its day and is no longer valid. Deterr•nce- and reformation are the primary s6cial s.oals which make deprivation of life and liberty reasonable as penal penacea. [122C] B c 9. The current ethos, with its strong emphasis en human rights and against D, ·tiefl.th penalty, together with the ancient strains of culture spanning the period from Buddh_~ to Gandhi must ethically inform the concept of social justice whiclt is a paramom:lt principle and cultural paradigm of our Constitution. [122C-D] 10'. The personal and social, the motivational and physical circumstances, •f :the ~riminal are relevant factors in adjudging the penalty as clearly provided for under the Code of 1973. So also the intense suffering alretldy endured 9y prison torture or agonishing death penalty hanging over head consequent on the Jen! process. T122D·EJ 11. Although the somewbat obsolescent Mc'Naughten Rules codified in s. 84 of tile Penal Code alone are exculpatory, mental imbalances, neurotic upsets and psychic crises may "e ·extenu3rory and the sense of diminished responsibility may manifest itself in judicial ,clemency of commuted life incar· ceration. [122FJ 12. The social justice which the Preamble and Part IV (Art. 38) highlight, as paramount in the governance of the country has a role to mould the ~entence. If the murderous operation of a die-hard criminal jeopardizes social ·security in a persistent, planned and perilous fashion then his enjoy· ment of fundamental rights may be rightly annihilated. One test for impORition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles 81'enever hang unless society or its members may lose more lives by keeping :alive an irredeemable convict. Therefore social justice projected by Art. 38 colours the concept of reaso_nableness in Art. 19 and non-arbitrariness in ·Art. 14. This complex of articles validates death penalty in limited cases. Maybe tr~in dacoity and bank robbery bandits reaching menacing proportio11S, -economic offenders profit killing in an intehtional and organised way, a.re 90.ch. categories in a Third World setting. [112D; 114C; 112Gl : '¢: ·E F G H 80 SUPREME COURT REPORTS [1979] 3 s:c.P:. A 13. Survival of an orderly society without which the extinction of .huilllllJ rights is a probability compels the higher protection of the law to those officers who are charged with the fearless and risky discharge of hazardous duties. in strategic situations. Those officers of law, like policemen on duty or soldiers and the like have to Perform their functions even in the face of threat of violence, sometimes in conditions of great handicap., If they are killed by desig11ers of murder and the law does not express its strong condemnation B in extreme penalisation, justice to those called upon to·· defend justice may fail. This facet of social justice also may in certain circumstances nnd at certain stages of societal life demand death sentence. [123D-E] c I) E F G 14. Special reasons necessary for imposing death penalty must relate not "- to the crime as such but ti:> the criminal. [124E] ,,_ Jagmohan Singh v. State of U .P., [1973] 1 sec 20; Ediga Annama v. ~ State of A.P., [1974] 4 SCC, 443; Sunil Batra v. Delhi Admn., J1978] 4 sec '· · 494 at 569 & 572; referred to. (· Capital punishment in India; The Impact of the Ediga Anamma, by Prof .. A. R .. Blackshield-(July 1977), referred to. Rajendra Prasad' s case : The family to which the iappellant and the deceased belonged were 011 inimical terms. - The appellant who was the son of one of the families murder .. ed the deceased. After some years in the prison, he was released on Gandhi Jayanti day. On return some minor incident ignited his latent feud and· he: stabbed to death a friend of the opposite family, he woo: sentenced to death. The secOnd murder is not to be confounded with the persistent potenti·ar for murderous attacks by the murderer. This was not a menace to the social order but a specific family feud. Here was not a youth of ccntrollable violent propensities against the comm.unity but one whose paranoid preoccupation with a family quarrel goaded him to go the rival. So long as thetherapeutic processes are absent from prisons these institutions, for from bein&' the healing hope of society, prove hardening schools to train desperate~ criminals. Desperate criminal is a convenient description to brand a person. Seldom is the other side of the story exposed to judicial view. There is noth:- ing on record to suggest that the appellant was beyond redemption;. nothing on record hints at any such attempt inside the prison. The appellant showed no incurable disposition to violent outbursts against his feUow-men .. There is therefore, no special reason to hang him. He should be awarded life: imprisonment. " Kunjukunju's case : The appellant, a married man with tWo children, developed illicit sex relations with a fresh girl. In order to win her hand he murdered his wife-. and two Children. Th\'re is no evidence to show that he was a d~perate hedonist or randy rapist. He is not a social security risk altogether beyond! salvage by therapeutic life sentence. Death sentence is commuted to life imprilonme:Dt. .. B Dubey"s case : .The appellant, a young man, aged about 20, stabbed to dct>th three members of the family with whom his· family ·had a quarrej· over partition of ( \ RAJBNDRA V. U.P. STATE 81 property. It is illegal in this case to award capital sentence without considering A correctional possibilities inside prison. He wtts not a murderer born but made by the passion of fan1ily quarrel. He could be saved for society with correctional techniques , and directed into repentance. A family feud, an altercation,. ai sudden passion, although :.attended with extraordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual murderer or given to chronic violence-these. catena of circumstances bearing on the offender B call for the lesser sentence. Sen J, (DissentJnR) 1. (a) It .is constitutionally and legally impermissible for the Supreme Court while helai_iug an appeal by special leave under Art. 13'6 of the Constitutionj on a question of sentence, to restructure s. 302 of the Indian Penal Code, 1860 or s. 354, sub-s. (J) of the Code of Criminal Procedure 1973, so as to limit the scope of the sentenCe of death provided for the offence of murder under s. 302. [13 IF-Gl (b) The question whether the scope of the death sentence· should be curtailed or not, is one for the ~arliament to decide. The matter is essentially of political expediency and, as such, it is the concern of statesmen and, thereforej properly the domain of the legislature, not the j'udiciary. [137E] D (c) In an appeal confined to sentence under Article 136 of, the Constitution, Supreme Court has not only the power but as well as the duty to interfere if it considers that 1he appeJlant should be sentenced 'differently', that is, to set aside the sentence of death and substitute in its place the sentence of impriSonment for life, where it considers, taking the case as a Whole, the sentence of death to- be erroneous, excessive or indicative of an E improper exercise of discretion; but at the same time, the Court must impose some limitations on itself in the exercise of this broad power. In dealing with a sentence which has been made the subject of an appeal, the Court will interfere with a sentence only where it is ~erroneous in principle'.· The question, therefore, in each case is whether there is an 'error of principle' in· volved. [1340-H] (d) The Court has the duty to see that on the particular facts and circumstances of each case the punishment fits the crime. ·Mere compassionate sentiments of a humane feelings cannot be a sufficient reason for. not confirming a sentence of death but altering it into a sentence of imprisonment for life. In awarding sentence, the Court must, las it should, concern itself with justice, that is, with unswerving obedience to established law. It is, and must be, also concerned with the probable effect of its sentence both on the general public and the culprit. Judges are not concerned "ith the morales or ethics of a punishment. It is but their duty to administer the law as it is and not to say what it should be. It is not the intention of the Supreme Court to curtail the- scope of the death sentence under s. 302 by a process of judicial construction inspired by the personal . views. rt35B: !37D"El 2. It it also not legally permissible for this Court while hearing an appeal in a particular case where a capital sentence is imposed, to define the expreBsion "special 'reasons" occurring in sub-s. (3) of s. 354 of the Code, in such F G H A SUPREME COURT REPORTS (1979] 3 ji.C.R. & manner by a process of judicial interpretation, which virtually has the effect ot abolishing the death sentence. [l 37H] (a) Under s. 354, sub-s. (3) of the .Code of Criminal Procedure, 1973, tho Court is required to state the reasons for a sentence awarded, and in the cue of imposition of a sentence of death the Judge has to record "special reasons" for imposing death sentence. Punishment for n1urder as a rule should B be life imprisonment and death sentence is only an exc'Wtion. [159A] c: • (b) It is neither feasible nor legally permissible for this Court to give + :a definite connotation to the expression "special reasons" occurring in s. 354 •ub-s. (3) of the Code of Criminal Procedure, 1973. It is difficult to put 4 11ipecial reasons" in a straight-jacke~. · Each case must depend on its own .,_ particular facts. The question of sen~ence must be left to the discretion of the ~-----( Seasions Judge trying the accused. Under the present Code, a trial for murder - ~ is divided into two stages. There is·. a bifurcated trial. The first part of the ' \._ __ trial is directed solely to the issue of guilt or innocence, and concludes with ( the finding of the Sessions Judge on that issue. At the end of the trial when he ~omes to a conclusion of guilt, he has to adjourn the case for hearing the accused on the question of sentence. [159CD] Section 235, sub-s. (2) of the Code specifical!y provides for an opportunity of hearing to the accused on the question of sentence after a verdict of guilt ia recorded against him. The burden is upon the prosecution to make out a case for igiposition of the extreme penalty. Where a sentence of death ii passed, the Sessions Jtidge has to make a reference to the High Court under s. 366, sub-s. (1) of the Code. Under s. 367, sub-s. (I) if the High Court t}1inks a further inqlliry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry OP. take such evidence itself, or direct it to be made or taken by the Court of Sessions. Jn a case subm'itted under s. 366, the High Court under s. 368(a) may either confirm the sentence, or pass any other eentence, i.e. "reduce the sentence of death into a sentence of imprisonment for life. Thereafter an appeal 1ies to this Court by a special leave under Article 136 on the question of sentence. · [159&H] Failing the appeal, there is the President's power to grant reprieve and pardon under Article 72(1), as wen ~ the Governor's power of commutation under Article 161 of the ConstitutiOn which is a sovereign function. The power of the President and of the Governor to grant reprieves and pardons is wide enough to include the power to commute land to remit sentence of punishment. All cases of capital punishment are closely scrutinised by the Executive at both the levels to see whether there are such extenuating circumstances as would justify a reprieve, and the power to commute a death sentence is freely exercised, whenever there is some doubt as to the severity of the punishmeot. Under the present system the Prerogative of Mercy in the case of persons under senterice of death works well and it produces reSults generally regarded as satisfactory. It helps in mitigating the rigour of the death sentence, particularly in case of those murderers whose execution would offend the public conscience. Very few persons under a sentence of death-may be one or two in a _year, in, a State are usually executed. It is, therefore, not proper for the Court to trench . upon the President's or the Governors preroc•tive to grant pardon or reprieve under Articles 72(1) and 161 in taking • ( RAJENDRA V. U.P. STATE 83 >- . 'Upon itself the task of commutation of a death sentence, which is properly A "· imposed, in the facts and circumstances , of a particular case, merely because there is a. doubt that the Executive may commute the sentence ultimately, or < by one·s ·vi""' as to the utility. of death penalty. [!60A-E] ... Ba/wait!. Singh's case [1976] 2 SCR 684; Ambaram's Case (1974] 4 SCC tl.98 and Sarveshwar Prasad Sharma's case [1978] 1 SCR 360; referred to. (c) Judges are entitled to hold their own views, but it is the bounden duty of the Court to impose a .proper punishment, depending upon the de&ree of ;.. criminalitJ and the desirability to impOSe such punishment as a measure of social aecea;ity, as a means of deterring other potential offenders. It iS only ~1 in very grave cases Where it is a crime against the society and the brutality ' ......--Uf the crime shocks the judiciM conscience that the Court has the power, as J~ weJJ as lhe duty, to ia1pose the death sentence. In view of these adequate ~ safeguards, it can hardly be asserted that the sentence of death provided for an offence of murder punishable under s. 302, is 'de-humanising• or that it is ~unnecessary•. Where the ""crime is cruel tind inhuman a death sentence may be called for. [160F-Hl Zdifif Anamma, [1974) 4 S.C.C. 443; Bis/um Pas & Ors. (1975] 3 S.C.C. 700; referred to. (d) If Parliament thought it right to give to the Judges. discretion as to the sentence, they would not or ought not to shrink from their onerous responsibility. It would. not be appropriate to curtail the ambit o,f their dis- •Cretion by judicial process. A sentence of a wrong type, that is, to substitute a sentence of imprisonment for life where the death sentence is cttlled tor, causes grave miscarriage of justice. A sentence or pattern of sentences which faili to take due account Of gravity of the offence can seriously undermine respect for law. [164E-FJ · (e)' In the three ·cases there were 'special reasons' within the meaning of -s. 354, sub-s. (3) of the Code of Criminal Procedure, 1973 for the passin~ ·of the death sentence in each and, therefore, the High Courts were justified in ·confirming the death sentence passed under s. 368(a) of the Code. Indeed, \~ _ __."they are illustrative of the rate type of cases, that is, first degree murders, ._r -where a death sentence is usually awarded · ln any civilised country. These - ·were cases of diobolical, cold-blooded brutal murders of innocent persorui, -·-:--.a that is, first degree murders of extreme brutality or depritvity. The1 inhumanity of some of these offences defied belief. Any interference with the sentence <>f death, would be wholly unwarranted in each case. [l64G] · (f) It is the .duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of soc~al necessity as a means of deterring other potential offenders. "F\iilure to impose a death sentence in such grave cases where it is a crime against the society-particularly in cases of murders committed with extreme "brutality, will bring to nought the sentence of death provided for by s. 302 of the Indian Penal Code, 1860. To allow the appellants to escape with the lesser punishment after they had committed such intentional. cold-blooded, .deliberate i\nd brutal murders will deprive the. law of its effectiveness a.nd result in lcavesty of justice. [168A·B] c D E F G H 84 SUPREME COURT REPORTS [1979] 3 s.c.R. A (g) In these 3ppeals it Cannot be asserted that the award of death se.ntenceB c 0 E F to the appellants was "erroneous in principle". Nor can it be Sl;lid tl}.at thesentence of death passed on them was arbitrary or excessive or indicative of an improper exercise of discretion. [167H] (i) Rajendra Prasad's case is destructive of the theory of reformation. The 'therapeutic touch' which it is said is the best way of preventing repetition of· the offence has been of no avail. Punishmeni must be designed so as to deter, as far as possible from commission of similar offences. It should also· ,..... serve as a wUrning to other members of society. In both respects, the experi· ment of reformation has miserably failed. There is no doubt, with the com·- -Ii: mutation of his death sentence, the accused will commit a {ew more murders, r,._ and he ·would again become a menace to the community, [165G] ~ . (ii) In Kuniukunju Janardlian's case the accused, who acted aS a monster, ~>--- did not even spare his two innocent minor children in order to get rid of. -,( his wife and issues through her. The death sentence was the only and apprcr priafe penalty which should be awarded in such a case. [166D] (h) There is no inexorable rule that either the extreme youth of the· accused or the flact that he acted in a heat of passion must always irres~ pective of the enormity of the offence or otherwise be treated as a sufficient_ ground for awarding the lesser punishment. The Court has to take into· consideration all the circumstances which do not merit the extreme penalty .. In the facts and circumstances of this particular case i.e. Sheo Sha'nker Dubey's case these factors cannot outweigh other considerations. Three precious lives have been lost by the dastardly act of the accused. A family basv been wiped off. The de3.th sentence was clearly called for in this cas~ firstly, as a threat or warning to deter potential mur~erers, and _secondly as the guarantee against the brutalisation of human nature. All facts and circumstances, constitute 'special reasons' why the accused should be sentenced to· death. [167E-F] 3. It cannot be said that imposition of death penalty, except in the classes~ of cases indicated in the majority Judgment would be viol.ative of Articles 14,.. 19 and 21 of the Constitution. Such a question really does not arise for consideration. [136GJ -- ' (a) The citizen's right to life and personal liberty are guaranteed. by Arti- <:le 21 of the Constitution irrespective of his ·political beliefs, class, creed or religion. The Constitution ha&, by Article 21 itself forged certain procedural safeguards for protection to the citizen of his life and personal liberty. TheG idealistic considerations as to the inherent worth and dignity of man is a funda~ mental and prevasive theme of the Constitution, to guard against the executiolh of a citizen for his political beliefs. [136C-D] H (b) A patriot cannot be equated with an ordinary criminal. A humanistiC' approach should not obscure one's sense of realities. When a man commits a crime against the society by committing a diabolical, cold-blooded, pre-planned murder, of an innocent person the brutality of which shocks the con~ience of the Court, he must face the consequences of his act. Such a person forfeits hi& riaht to life. [136El ' \ " ' RAJENDRA v. U.P. STATE 85 Jagmohan Singh v. State of U.P. [19,73] 2 S.C.R. 541 followed. Furman v. Georgia, 408 U.S. 238, 33 L. ed. 2nd 346 explained and differed from. Michael de Freites v. Gaorgie Ramouter Benny, L.R. [1975] AC 39; quoted v:ith approval. \ (c) If the Courts were to be guided by the classification for inflicting death penalty only in tl1e case of three calegories of criminals, namely, (i) for White .collar offences (ii) for anti-social offences, and (iii) for exterminating a person V.'ho is a menace to the society, that is, a 'hardened 1nurderer', the death sentence for an offence of murder punishable under section 302, for all practical purposes r--wsiuid be virtually non-existent. Unfortunately our penal Jaws do not _provide f for death sentence for either white collar crimes or anti-social offences. As regards 'hardened' murderers, there are few to be found. Many murders unfor· / tunately go undetected and many a brutal murderer bas to be acquitted for want of legal evidence bringing his guilt b~yond reasona-ble doubt. Nevertheless, when the guilt is proved, the Court should leave aside all humanitarian consi· derations if the extreme penalty is called for. A 'professional' murderer must, as :a matter of course, be sentenced to death because he is menace to the· society. A B c \Vhatever sympathy the Court can have should be reserved for the victims of D the crime rather than for the perpatrators. In such cases, the law must take its course. [162B-E; 163C..D] 4. The criminality of a crime consists not only in the criminal act but in what that signifies. Its immediately apparent features, the obvious damage to person or property or to public security, are symptoms of a deeper disorder. It betokens, and it fosters, an attitude in man to man, of reckless sel&hness, decit <0r malice, which is incompatible in the long run with any decent sOcial life. In .any advanced society it. is, in part at least, on account of this wider character, less easily discerned, that the graver offence are punished. [143E-F] (a) All punishment properly implies moral accountability. It is related to injury and not only to damage or danger however greater. Capital punishment , does so in an eminent degree. It is directed against one who is ex-hypothesi an ~nhuman brute, i.e. it is imposed simply to eliminate who is held to have become .,.. irretrievably, a liability or a menace to society. [142E] • (b) Punishment like crime has a dual character. The penalty which the convicted· murderer incurs is not simply death, but death in disgrace and death . as .a disgrace. In so far as capital punishment is a threat, the thre_at consists not only in death but in hμamy. Any theory which ignores this characteristic is certainly defective. f!43Fl Sir Walter Moberly The Ethics qf Punishment Ch. XI Capital Punishment pp. 271-81; referred to. ( c) PuniShment inflicted by the State in response to a violation of criminal law has been justified in various ways namely, as society's vengeance upon the criminal as atonement by the wrong-doer; as a means· of deterring other criminals, as ,Protection for the law-abiding and as a way of rehabilitating the criminal. E :r G B 86 I SUPREME COURT REPORTS ( [1979] 3 s.c.It~ A Theories of rehabilitation are largely speculative, since there is Jack of scientific- < evidence to support them, though it has been influential in the development of" B c D E F G modern penolozy. f!44A-Bl 5. (a) The capital punishment controversy falls within the strict limits or· 'independent' parliamentary law-making, and is a typical or representative of the kind of problems that leaders of Parliament face every day. In. short, the case for abolition of the death sentence is political; not constitutional, The Government carries the responsibility of law and order. That is the first. and fundamental duty of any Government. The Executive has the duty of· advising the Government of the laws it believes necessary for the national well- • being. It is the duty of the Court, including this Court, to administer the laws:. /"' as. they are. [157D·E] ~ (b) Analysing the substantive merits of the cases for and against the death '·>- penalty for murder is essentially a question for the Parliament to resolve and' .f not for the Supreme Court to decide. Therefore, it would not be proper for theJudges to attempt to project their personal views in a matter which lies in therealm of political decisiop·making, by focussing on -a single controversy, the ques~. lion of the proper penalty for the crime of murder. [157B] (c) Any justification for the capital sentence, as for other salient features of the penal system must be sought in the protection of the society and that alone. [14~E] Even where it has been legally retained, as in India, Capital Puni!bment is. now seldom employed except in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience. Indeed' the death penalty satisfies the society's retributive goals and is still pre!omed to be a deterrent to potential offenders, Of the three purposes commonly assigned' to punishment-retribution, deterrence and reformation-deterrence is generally held to be the most important, although the continuing public demand for rctri:. bution cannot be ignored. Prima facie, the death sentence is lik.e1y to have. a· stronger affect as a deterrent upon normal human beings than any other form of punishment. People are believed to refrain from crime because they fear punish-- ·ment. Since people fear death more than anything else, the death penalty is the~ most effective deterrent. [146C-E] ' .~ (d) If the appeal of capital punishment were merely to fear of death, it '\. would be a very inefficient protector of society. In civilised society and in peace time, government relies for obedience more on its moral prestige than on violent r'epression of crime. Punishmtnt only protects life effectively if it produces i111 possible-murderers, not only fear of the consequences of committing murder, but a horrified recoil for the thing itself. It can only achieve, this, more ambitious, task, if sentence of death is felt to embody society's strongest condemnation of murder and keenest sense of its intolerable wickedness. It is not. by tho fear of death but by exciting in the community a sentiment of· horror against any particular act, that the offenders could be deterred· from committina: it. [!43B-CJ ~- H Royal Commission on Capital Punishment Para 59 : referred to. ( e) The punishment of death should reflect adequately the revulsiOJt felt forthe gravest of crimes by the great majority of citizens. Legislators and Jlrdp I t ·' \. RAJENDRA V. U.P. STATE 87 share this revulsioq themselves; otflerwise indeed their action woulel be morally indefensible. Their aim then should be, not only to strike terror nor even to awaken popular indignation in a direction\ convenient to Government. It would be to arouse in all and sundry their own indignant repudiation of a wicked act _and at the same time, to deepen it in themselves. In this. vain, sentence of death bas been pronounced, carried out and acclaimed with stern satisfaction. Otherwise the conscience of the community would be revolted if the criminals were allowed . to live. (145F-G] 6. (a.f The theory that (i) the· death penalty is per se cruel and unu~nal ~ punishment and (ii) alternatively the inordinate delay in carrying it out makee it \ ~o. has now been completefy dest~oyed by two recent decisions of the Privy :B· ,,.--.council. [149FJ -I.· Eaton Baker v. The Queen, L.R. [1975] AC 774 Freites v. George Romouler C :. Benny, LR [1975] AC 239; discussed. . (b) In the United States of America also the death penalty has practically existed more or less harmoniously with humane theories of criminal justice for over two hundred years (e.g). [151E] (i) In Trop v. Dulles, [1958] 356 US 86, L. ed. 630, the Court refused to consider the death penalty as an indent of the constitutional limit of punishment; (ii) In McGouths v. California, [1971] 402 U.S. 183, it was held that the absence of any guidelines was not a violation of "due process" and (iii) In Furman v. Georgia the multiple opinions did not rule out altogether re-imposition of the death penalty in the future provided there was legislative structuring of a permissible ~ystem providing for sufficient procedural safeguards; (iv) Later on, the death penalty has been reimposed and this judicial approach stood reoriei;ited. The constitutionality of the death penalty was supported by four factors (I) th& reference to capital punishment in the Constitution (ii) the past Supreme, Court decisions on the death penalty (iii) the limitations of judicial restraints and (iv) the doctrine of se.paration of powers. [151F; 1520; l54E] M. C/Jerif Bassi Owni; Substantive Criminal Law p. 120-128; referred to '· and (v) In Gregg v. Georgia, [1976] 428 U.S. 153; 49 L.ed. 2d. 859; Proffit v. ~---Ploride, [1976] 428 242; 49 L.ed. 2d. 913; Jurek Texas, [1976] 428 US 262; -.... 49 L.ed. 2nd, 929-all concerned with discretionary sentencing procedures--, ---,.. and in Woodson v. North Carolina, [1975] 428 US 280; 49 L.ed. 944 Qlld Roberts v. Lonisiana [1976] 428 US 326; 49 L.ed. 2d 974-both cont cerned with mandatory death sentence-it was held that (a) the punishment of • death did not invariably violates the Constitution (b) history and precedent did r"" .. ··' not support the conclusion that the death sentence 'vas pt!r s~ violation of 8th \. and 14th Amendments (c) the evolving standards of decencY' arguments had been substantially under cut in the last four yea-rs because a large segment of the enlightened population regarded the death penalty as appropriate and nece'8ary . \_ as seen in the new legislation passed in response to Furman ·(d) tbe·death penalty was not inherently cruel and unusual. It served two principal soci'al purpos~ retribution and deterrence, and therefore the death sentence for the crime of murder. was (1) not without justification (2) not unconstitutionally severe aed (3) not invariably disproportionate to the crime and (e) that Furman mandated. Where di5CretiODary sentenc'ing was med, there must be suit;tble direction a* l F G B' .. 88 SuPREME COURT REPORTS [1979] 3 $.C.R. A limitation to minimise the risk of wholly and arbitrary and capricious action~ the bifurcated trial with standards modelled after the Modern Penal Code juriCs gave just such guidance. [155F-G; 156A] B O,bservation : [If there has to be a law reform at all, some rega1'.d must be had to the plight of the victim or his or her family by making provision for payment of compensation. While it is commonly accepted that these convicted of violations of the criminal law must "pay their debt to society, little emphasis is placed upon requiriD:g offenders to "pay their debt" to their victims. These- again are matters for the Parliament to provide.] --{. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 512 of,. ·.,_ c E F G 1978. * Appeal by Special Leave from th.e Judgment and Order dated 12-9-74 of the Allahabad High Court in Criminal Appeal No. 501/74. AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by Special Leave from the Judgment and Order dated 9-1•1978 Kerala High Court in Cr!. A. No. 213/77 and Ref. Trial No. 3/77. AND CRIMINAL APPEAL NO. 513 of 1978 Appeal by special leave from the Judgment and Order· dated 28-9-77 of the Allahabad High Court in Criminal Appeal No. 261/73 and Reference No. 6 /77. R. K. Garg for the Appellant in Cr!. A. No. 513 /78. S. K. Bagga, Amicus Curiae for the Appellant in Cr!. A.512/78 P. K. Pillai, A.micus Curiae for the Appellant in Cr!. A. No. 511/78. D. P. Uniyal and M. V. Goswami for the State of U.P. K. R. Nambiar for the State of Kerela. The Judgment of Krishna Iyer and Desai, JJ. was delivered by Krishna Iyer, J.; Sen, J. gave a dissenting opinion. KRISHNA IYER, J. .J • H' THE DEADLY QUANDARY To be or not to be : that is the question of lethal import and legal mome~t, in each of these thiee appeals where leave is confined to the • I I,. I I. ' '· ( RAJENDRA v. U.P. STATE (Krishna Iyer, J.) 89 issue of the propriety of the impost of capital penalty against which the brutal culprits vague duality and value-free neutrality ? Any academic who has \ monitored Indian sentencing precedents on murder may awaken to " 'the overt ambivalence and covert conflict' among judges 'concerning continued resort to the death sentence' which, according to Prof. Blackshield,(') 'seems to minor the uncertainties and conflicts of values in the community itself'. This tangled web of case-law has . been woven around the terse terms of s. 302, LP .C. during the last hundred years. THE OLD TEXT AND THE NEW LIGHT Section 302.