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PETITIONER: BACHAN SINGH S/O SAUDAGAR SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT04/05/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. KRISHNAIYER, V.R.

CITATION:  1980 AIR  267            1980 SCR  (1) 645  1980 SCC  (1) 754

ACT:      Penal Code-Death  penalty-When can be imposed-Judges-If have power  to reduce  sentence of  death  to  one  of  life imprisonment-Rajendra Prasad’s case-If a valid precedent.

HEADNOTE: ^      HELD: (Per Sarkaria, J.)      The records  of this  case be  submitted to the Hon’ble Chief Justice  for C constituting a larger Bench which would resolve the doubts, difficulties and inconsistencies pointed out by  Kailasam J.  in his  order, particularly in its last paragraph.      (Per Kailasam, J.)      1. Before  the amendment  of Section 367(5) of the Code of  Criminal   Procedure  by  the  Criminal  Procedure  Code (Amendment) Act  1955 (Act  26 of  1955) was introduced, the normal sentence  for an  offence of murder was death and the lesser sentence was the exception. After the introduction of the amendment  it was  not obligatory for the court to state the reasons  as to why the sentence of death was not passed. By the  amendment the  discretion of  the court  in deciding whether to  impose a  sentence of  death or imprisonment for life became  wider. The  court was  bound  to  exercise  its judicial discretion  in awarding  one or  the other  of  the sentences. By the introduction of Section 354(3) of the Code of Criminal  Procedure 1973,  the  normal  sentence  is  the lesser sentence of imprisonment for life and if the sentence of death  is to  be awarded, special reasons will have to be recorded. In  other words,  the  court,  before  imposing  a sentence of  death, should  be satisfied that the offence is of such  a nature  that the  extreme penalty  is called for. [1203A-C]      2. In  a number of decisions, this court has reiterated the position that under section 354(3) of the 1973 Code, the court is  required to  state the  reasons for  the  sentence awarded and in the case of sentence of death special reasons are required to be stated. [1203D]      Balwant Singh  v. State  of Punjab [1976] 2-S.C.R. 684; Ambaram v.  The State of Madhya Pradesh [1976] 4 S.C.C. 298; and Sarveshwar  Prasad Sharma  v. Slate  of  Madhya  Pradesh [1978] I S.C.R. 560 referred to.

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In Jagmohan  Singh v.  State of  U.P. [1973] 2 S.C.R. 541 in which the  constitutional validity  of imposition  of  death sentence  was   challenged,  this   Court  held   that   the deprivation of  life is constitutionally permissible if that is done  according to  the procedure  established by law and that it  cannot be  held that  capital sentence  is  per  se unreasonable and  not in  the public  interest. It  was also held that  the Judges are invested with very wide discretion in the  matter of  fixing the  degree of punishment and that discretion in the matter of sentence is liable 20-409SCI/79 1194 to  be  corrected  by  superior  courts,  that  exercise  of judicial discretion on well recognised principles is, in the final  analysis,  the  safest  possible  safeguard  for  the accused. [1204C-D]      4. Section  367(5) of the Criminal Procedure Code which came into  force on  April 1,  1974, after  the judgment  in Jagmohan Singh’s  case, provides  that  the  judgment  shall state the special reasons where a sentence of death is award ed  for   an  offence   punishable  with  death  or  in  the alternative with  imprisonments life  or imprisonment  for a term of  years. The requirement that courts should state the special  reasons  for  awarding  the  death  sentence  would indicate that  the normal sentence for an offence punishable either  with   death  or   with  imprisonment  for  life  is imprisonment for  life and that if the court considered that sentence of  death is appropriate on the particular facts of the case it should give special reasons. [1204 G-H]      5. But  in Rajendra Prasad v. State of U.P. A.I.R. 1979 S.C. 916,  the majority  of a  Division Bench  of this Court held that "special reasons" necessary for imposing the death penalty must  relate not  to the  crime as  such but  to the criminal. The  death sentence can be awarded only in certain restricted categories  where a crime holds out a durable And continuing threat  to social  security in  the setting  of a developing country  and poses  a grave  peril  to  society’s survival and  when an  economic offender intentionally mixes poison in drugs and knowingly and intentionally causes death for the sake of private profit and so on. The decision is in many  respects   contrary  to  the  law  laid  down  by  the Constitution Bench  of this  Court in Jagmohan Singh’s case. The court  in this case has proceeded to make law as regards the conditions  that  are  necessary  for  imposition  of  a sentence  of   death  under   section  302   I.P.C.  and  to canalisation of  sentencing discretion  and has  embarked on evolving working  rules on  punishment bearing  in mind  the enlightened flexibility  of social  sensibility. In doing so the Court  has exceeded  its power  conferred on  it by law. Courts have  no power  to legislate  and to  frame rules  to guide the infliction of death penalty. [1205C-F]      6. So  far as the enacted law is concerned, the duty of the court is to interpret and construe the provisions of the enactment. Courts  must take  it absolutely for granted that the Legislature has said what it meant and meant what it has said. Judges  are not  at liberty  to add or to take from or modify the letter of the law simply because they have reason to believe  the true  sentence legis  is not  completely  or correctly expressed  by it.  Though the  courts are  free to interpret, they  are not  free to  overlook or disregard the constitution and the laws.. [1207B-D]      7. It  is for  the court  to administer  the law  as it stands. In awarding sentence or death, the court has to take into consideration the various aspects regarding a crime and the reason for committing the crime and pass the appropriate

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sentence, and  if it  is death  sentence, to give reasons as required by the Code of Criminal Procedure. If in deciding a case on  particular facts a principle is stated, it would be binding as  a precedent. If courts resort to rule making, it will not  be binding  as a  precedent. If  the courts are to embark  on  rule-making  the  question  arises  whether  the responsibility can  be undertaken by a bench of three Judges with majority  of 2:  1. There  is no machinery by which the court could  ascertain  the  views  of  the  various  cross- sections of the society, which is a pre-requisite before any law-making is resorted to. In. 1195 Rajendra Prasad’s  ease the  court embarked on framing rules prescribing conditions for the imposition of death sentence. The view  of the  majority that  in awarding  a sentence the criminal is  more important  than the crime is not warranted by the  law as  it stands today. The general principles laid down in  Rajendra Prasad’s  case are not the ratio decidendi of the case. The enunciation of the reasons or the principle on which a question before a court has been decided is alone binding as  a precedent.  The  concrete  decision  alone  is binding between  the parties  to it  but it  is the abstract ratio  decidendi  ascertained  on  a  consideration  of  the judgment in  relation to  the subject matter of the decision which alone bas the force of law and which, when it is clear what It  was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that  is unnecessary  for the  purpose in  hand have no binding authority  on another  court, though  they may  have merely persuasive  efficacy. Decisions upon matters of facts are not binding on any other court [1207G-H; 1202D-F]      Tribhuvandas v.  Ratilal A.I.R. 1968 S.C. 372 = 70 Bom. L. R.  73; Amritsar  Municipality v.  Hazara Singh  - A.I.R. 1975 S.C.  1087; and  Quinn v.  Leatham-1901 A.C.  495 at p. 506; referred to.      8. In  Rajendra Prasad’s  case the  conclusion  of  the majority was  that as  nothing on  record suggested that the accused was  beyond redemption  and since the record did not hint that  such an  attempt was made inside the prison there was no special reason to award death sentence. The utmost to which this case can be considered as an authority is that if in similar  circumstances when  a person  stabs two  persons several times  it would  not  furnish  special  reasons  for inflicting  the   death  penalty.   In   the   second   case (Kunjukunju) the  majority was  of the  view that  the  test should be  whether the  accused was  a social  security risk altogether beyond  salvage by  therapeutic life sentence was neither in  accordance with  the requirements of the Code of Criminal Procedure  nor law  laid down  by the  Constitution Bench. Therefore,  it cannot  be followed  as  a  precedent. Similarly,  in  the  third  case  (Dubey’s  case)  also  the majority view  that it  would be  illegal to  award  capital punishment    without     considering    the    correctional possibilities inside  the prison  and that the accused being young and  of malleable  age and other circumstances bearing on the  offender called  for the  lesser sentence  is not in conformity  with   the  decisions   of  this  Court  or  the requirements of the law. [1213H; 1214A-H]      9. In the instant case the appellant was released after undergoing a  term of  imprisonment for  the murder  of  his wife. After  release he  lived with  his  cousin.  When  his cousin’s son  and wife  objected to his stay with the family he inflicted  a fatal injury on the son and two daughters of his cousin  when they were asleep and caused grievous injury on another  daughter The courts below came to the conclusion

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that the  appellant acted  in a very cruel manner. They have rightly characterised  the offence  as heinous and held that the only  appropriate sentence  was the  extreme penalty  of death. The  trial court  and the  High Court  were right  in their conclusions. [1215 C-E]      [Rajendra Prasad’s  case cannot be treated as a binding precedent yet  as it  is a  decision of  a division bench of this Court. The papers were directed to be placed before the Hon’ble the Chief Justice for constituting a larger bench to decide the case.] 1196

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 273 of 1979.      Appeal by  Special Leave  from the  Judgment and  Order dated 14-8-1978 of the Punjab and Haryana High Court in Crl. A. No. 234/78 and Murder Reference No. 3/78.      H. K. Puri, Amicus Curiae for the Appellant.      R. S. Sodhi and Hardev Singh for the Respondent.      The following Judgments were delivered:      SARKARIA, J.-While  reserving my  own  opinion  on  the various question  raised in this case including the one with regard  to  the  scope,  amplification  and  application  of Section 354(3)  of the  Code of  Criminal Procedure, 1973, I would, in agreement with my learned brother, direct that the records of  this case  be submitted to the Hon’ble the Chief Justice, for constituting a larger Bench which would resolve the doubts,  difficulties and inconsistencies pointed out by my learned  brother in  his order, particularly, in its last paragraph.      KAILASAM, J.-This  special leave  petition is  filed by Bachan Singh  son of  Saudagar Singh  from jail  against the conviction and  sentence imposed on him by the High Court of Punjab and  Haryana. This  Court ordered notice to the State and heard  the counsel  for the petitioner and the State and granted special leave.      The  appellant   was  tried   by  the  Sessions  Judge, Ferozepur, on  three charges  of causing  the death of three persons Desa  Singh the  son and  Durga Bai  and Veeran  Bai daughter of  Hukam Singh  and causing  grievous injuries  to Vidya Bai,  another daughter  of Hukam  Singh, at  about  12 midnight  between  the  4th  and  5th  July,  1977,  in  the courtyard of  the house  of Hukam  Singh. The  learned Judge found the  appellant guilty  of the  three charges  under s. 302, I.P.C.  and sentenced  him to  death on  each count. He also found  him guilty  under s.  326, I.P.C.,  for  causing grievous hurt  with a  sharp cutting weapon to Vidya Bai and sentenced him  to three  years’ rigorous  imprisonment and a fine of  Rs. 500/-.  Against the  convictions and  sentences passed the  appellant preferred  Criminal Appeal  No. 234 of 1978 to  the High Court. The appeal along with the Reference No. 3  of 1978  made by  the trial Judge for confirmation of sentence of death were heard together by the High Court. The High Court rejected the appeal and confirmed the convictions and sentences passed on the appellant.      The case  for  the  prosecution  briefly  is  that  the appellant Bachan Singh was convicted under s. 302 I.P.C. for the murder of his wife 1197 and sentenced to imprisonment for life. After undergoing the term of  imprisonment he  was released. After the release he lived with  his cousin(?) Hukam Singh P. VV. 5 for about six

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months. Hukam Singh’s wife and son objected to the appellant living in  their house.  A few  days prior to the occurrence Hukam Singh and his wife went to Nainital in connection with the marriage  of their  son Desa  Singh. On the night of the occurrence 4th  July, 1977  Desa Singh  son of  Hukam Singh, Durga Bai,  Veeran Bai  and Vidya Bai the daughters of Hukam Singh were in the house. After taking their meals the, three daughters slept  in the inner courtyard, Durgabai in one cot and Veeran Bai and Vidya Bai in another cot near each other. Desa Singh,  the son of Hukam Singh, and the appellant slept in the outer courtyard on two separate cots near each other. At about midnight Vidya Bai P.W. 2 was awakened by the alarm and saw  the appellant  inflicting Kulhari (axe) blow on the face of  her sister  Veeran Bai. When Vidya Bai tried to get up the  appellant gave Kulhari blow on her face and ear. She was unable  to speak  and fell unconscious. Diwan Singh P.W. 12 who was sleeping at a distance of 3/4 Karms from the cots of Desa  Singh and  the appellant  also woke up on hearing a shriek. He  saw the  appellant striking  Desa Singh  with  a Kulhari. He  raised an  alarm and Gulab Singh P.W. 3 who was sleeping at a distance of SO feet from the cot of Desa Singh woke up and saw the appellant hitting Desa Singh on the neck with a  Kulhari. On  an alarm  being raised by the witnesses the appellant  threw the  Kulhari in  the courtyard and ran, away. Gulab  Singh and  Diwan Singh  P.Ws. 3  and 12  gave a chase to  the appellant  but could  not apprehend  him. Soon after Kanshi Singh P.W. 4 and others arrived at the place of occurrence and  heard from  the witnesses the detail, of the occurrence.      A tractor  was brought  in which  Durga Bai, Veeran Bai and Vidya  were taken to the hospital at Fazilka. The Doctor who examined the dead bodies and the injured person gave the necessary certificates.  He also  sent  information  to  the A.S.I. P.W.  13 who  went to,  the hospital and recorded the statement from  P.W. 12 on the basis of which the F.I.R. was recorded at  the police  station at  4-20 a.m.  On 5th July, 1977. The  police officer conducted the inquest and preceded with his  investigation. The  courts below  found  that  the medical evidence  fully corroborated  the testimony  of  the injured eye-witness P.W. 2 and two other eye-witnesses P.Ws. 3 and  12 and found that the prosecution had established its case beyond reasonable doubt.      The trial  court and  the High Court on a consideration of the  evidence found that P.W. 2 Vidya Bai the daughter of Hukam Singh 1198 who was  sleeping along  with her  sisters in  the house and suffered serious  injuries, saw  the attack by the appellant when she  woke up.  There is  evidence that it was a moonlit night and  there was sufficient light by which the assailant would have  been identified.  The trial  court accepted  the evidence of  P.W. 2.  The High  Court also  found  that  the evidence of  P.W. 2  is trustworthy.  Both the  courts below also relied  on the testimony of the other two eye-witnesses P.Ws. 3  and 12.  P.W. 3  Gulab  Singh  was  sleeping  at  a distance of 50 Karmas and got up after hearing the alarm and rushed to  the scene.  P.W. 12 was sleeping at a distance of 15 feet  of Desa  Singh. The trial court as well as the High Court accepted  the testimony  of the  two  eye-witnesses  S P.Ws. 3  and 12.  On a  consideration of the evidence of the eye-witnesses the  High Court  observed that  the  "evidence provided by  the eye-witnesses  is of very high order in the case and  was rightly  accepted by the learned trial Judge." We have  no  hesitation  in  agreeing  with  the  concurrent findings  of   the  courts   below  and   holding  that  the

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prosecution has  proved beyond all reasonable doubt that the appellant caused the death of the three deceased Desa Singh, Durga Bai and Veeran Bai and grievous hurt to Vidya Bai P.W. 2.      Regarding the  sentence, the  High Court  observed "The objection by Desa Singh, his mother and other family members was of  a triffing  nature on which the appellant acted in a very cruel  manner. The victims had no cause to suspect’ the intentions of  the  appellant  and  went  to  sleep.  Taking advantages of  the situation,  when the  victims  could  not defend, the appellant killed three and seriously wounded the fourth. It  was by  sheer luck  that Vidya Bai survived. The manner in  which the  appellant perpetrated  these crimes by killing these persons in their sleep is heinous. Under these circumstances, the  case of  the appellant  for reduction of the sentence  cannot be  considered  and  in  our  view  the sentence awarded  by the  learned trial  Judge was  the only appropriate sentence."      The crime  is diabolic  and very  cruel. Hukam Singh, a cousin, accommodated  the appellant in spite of the protests of his  wife and  son. While enjoying the hospitality at the dead of  night when  nobody had  any suspicion the appellant committed in the most dastardly manner the crime. Desa Singh was sleeping  in a  cot by  the side  of the  appellant. The appellant at  the  dead  of  night  while  the  others  were sleeping unsuspectedly  hacked three persons to death. It is only providential that the third daughter Vidya Bai escaped. The crime  in our  view is  one of the foulest that could be imagined and  we are  in entire  agreement with  the  courts below about their assessment of the gravity of the crime-the only question for consideration is whether 1199 the facts  found would  be special  reasons for awarding the death sentence  as required under sec. 354(3) of the Code of Criminal Procedure 1973.      Section 302  I.P.C. and  sub-sec. (3) of section 354 of the Cr. P.G 1973 deal with the imposition of death sentence. Section 302 I.P.C. provides:-           "Whoever commits  murder shall  be  punished  with      death, or  imprisonment for  life, and  shall  also  be      liable to fine."      Sub-sec. (3)  of sec. 354 of the Code of Cr. Procedure, 1973, enacts.           "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." Before the amendment of sec. 367(S) Cr. P.C. by the Criminal Procedure Code  (Amendment) Act,  1955 (Act  XXVI  of  1955) which came  into force on 1st January, 1965, on a conviction for an  offence punishable with death if the Court sentenced the accused  to any  punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. Section  367(5) of  the Code of Criminal Procedure before its amendment by Act 26 of 1955 provided that "if the accused is  convicted of  an offence  punishable with death, and the  Court sentences  him to  any punishment  other than death, the  Court shall,  in its  judgment state the reasons why sentence  of death was not passed." This sub-section was construed before  the Amendment  Act,  Act  26  of  1955  as meaning that the extreme sentence is the normal sentence and the mitigated  sentence is  the exception. In Dalip Singh v. State of  Punjab,(1) it  was held  that in a case of murder,

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the death  sentence should  ordinarily be imposed unless the trying Judge  for reasons  which should normally be recorded considers it proper to award the lesser penalty. In Vadivelu Thevar v.  The State  of Madras,(2) this Court expressed its view that the question of sentence has to be determined, not with reference  to the  volume or  character of the evidence adduced by  the prosecution  in support  of the  prosecution case, but  with reference  to the fact whether there are any extenuating circumstances which can be said to mitigate (1) A.I.R.1953 S.C.364 (2) A.I.R.1957 S.C.6I4. 1200 the enormity  of the  crime. If  the Court is satisfied that there are  such mitigating,  circumstances,  only  then,  it would be  justified  in  imposing  the  lesser  of  the  two sentences provided  by law. These two cases were rendered in relation  to   offences  which  were  committed  before  the Criminal  Procedure  Code  Amendment  Act  26  of  1955  was enacted. The  law therefore  prior to the amendment was that unless there  are extenuating  circumstances the  punishment for murder should be death and not imprisonment for life.      By the Amendment Act 26 of 1955 a new sub-section, sub- section (5),  was substituted for the former sub-section (S) by Act  26 of  1955 which  does not  contain  the  provision making it  incumbent for  a Judge  to record his reasons for imposing a lesser penalty. After the amendment which omitted the  provision   requiring  the  recording  of  reasons  for imposing the  lesser penalty,  the  Court  is  not  under  a statutory duty  to record  the reasons.  Still as the Courts have to  impose one  of the  two penalties,  namely death or imprisonment for  life, the  Courts will  have  to  exercise their judicial  discretion in  deciding  which  of  the  two penalties should  be imposed.  The result  is that after the amendment though  the Court  is not  required to  record the reasons for  imposing the  lesser penalty  it was  bound  to exercise  its   discretion  judicially.  To  show  that  the discretion has  been judicially exercised, reasons are given for  imposing   the  particular   sentence.  This  makes  it necessary for the court to give its reasons for imposing the particular sentence though by the Amending Act the court was not  required   to‘  give   reasons  for  not  imposing  any punishment other than death. The effect of the amendment has been stated  by this  Court in  Raghubir Singh  v. State  of U.P.,(’)  that   after  the  amendment  of  section  367(S), Criminal Procedure Code, by Act 26 of 1955 the discretion of the court  in deciding  whether to  impose the  sentence  of death or of imprisonment for life has become wider.      By the Code of Criminal Procedure, 1973 (Act 2 of 1974) subsection (3)  to section  354 was introduced regarding the contents  of  the  judgment  relating  to  imposition  of  a sentence of  death or  imprisonment for life or imprisonment for a term of years.      Sub-sec. (3)  which deals  with the  conviction for  an offence punishable  with death  or in  the alternative  with imprisonment for life or for a term of years in sentencing a person on  conviction for  such an  offence the  judgment is required to  state the  reasons for the sentence awarded and in the  case of  sentence of  death the  special reasons for such sentence.  When the  court in  its  discretion  imposes either a sentence (1) [1972] 3 S.C.C.79 1201 of death  or imprisonment for life or for imprisonment for a term of  years, the  Court is required to record reasons for imposing one  or the  other sentence  which it  can  legally

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impose. As the Court has a discretion to award a sentence of death or imprisonment for life or imprisonment for a term of years and  as the  discretion is  very wide the law requires that reasons  shall be  stated for  awarding one or other of the sentences.  In the  case of  an offence  under sec. 132, I.P.C., the punishment provided for is death or imprisonment for life  or imprisonment  for 10  years and fine. There are other offences  like the  one under  s. 131  I.P.C. which is punishable with imprisonment for life or imprisonment for 10 years and fine. Sections 121(a), 122, 125, 128, 130, 131 IPC and  other   sections  provide   for   the   punishment   of imprisonment for  life or  imprisonment for a term of years. In such cases under s. 354(3) the Court is required to state reasons why one or other of the sentences is imposed. In the case of  offences  punishable  with  death  the  sub-section requires that  special reasons  for imposing  such sentence, should be  given. This requirement makes it clear that where the punishment  provided for  is death  or imprisonment  for life the  sentence that  should be imposed as of rule should be one  cf imprisonment  for life.  But if the offence is of such a  grave nature that the court thinks the higher of the penalties, namely  the death  sentence,  should  be  imposed special reasons  should be given. Thus while the legislature retained the  imposition of death sentence it laid down that if the  court awarded  the death  sentence it should Furnish special reasons.  In Chapter 27 which relates to ’Judgments’ there are  other sections  which require that reasons should be given for imposing or not imposing a particular sentence. Sub-section (4)  to s. 354 requires that when the conviction is for an offence punishable with imprisonment for a term of one year  or more,  but the  Court  imposes  a  sentence  of imprisonment for  a term of less than three months, it shall record its  reasons for awarding such sentence. Such reasons need not  be recorded if the sentence is one of imprisonment till the  rising of  the court  or unless the case was tried summarily under  the  provision  of  Cr.  P.C.  Section  361 requires that  when the  court could  have dealt with (a) an accused person  under s.  360 or under the provisions of the Probation of offenders Act, 1958, or (b) a youthful offender under the  Children Act, 1960. Or any other law for the time being in force for the treatment, training or rehabilitation of youthful  offenders, but has not done so, it shall record in its  judgment the special reasons for not having done so. This section  also requires  special reasons  to be given if the court  has not  dealt  1  with  the  accused  under  the provisions mentioned  The object of requiring the reasons to be given regarding the sentence could be 1202 found in  the Law  Commission’s Report and the Report of the Joint Parliamentary Committee. The Law Commission in Vol. I, 35th Report  on the  Capital  Punishment  expressed  that  a considerable body  of opinion  is in  favour of  a provision requiring tile  Court to  state its reasons for imposing the punishment either  of death  or imprisonment  for life.  The Commission was of the view that this would be a safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt and that it would provide good material at the time when a  recommendation for  mercy is to be made by the court or a  petition for  mercy is  considered and  that it  would increase the  confidence of  the people in courts by showing that the  discretion is  judicially exercised. It would also facilitate  the   task  of   High  Court  in  appeal  or  in proceedings for  confirmation in  respect  of  the  sentence (where the  sentence  awarded  is  that  of  death),  or  in

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proceedings in  revision for  enhancement  of  the  sentence (where the  sentence awarded  is  one  of  imprisonment  for life). In its 41st Report on the Cr. P.C. the Law Commission recommending the  amendment also  observed that  there  were certain offences  for which  the Penal  Code prescribes  the punishment as  death or in the alternative life imprisonment or imprisonment  for a  term  of  years  and  therefore  the amendment recommended  should cover  these cases  also.  The Joint Committee of Parliament added that a sentence of death is the extreme penalty of law and it is but fair that when a court awards,  that sentence in a case where the alternative sentence of  imprisonment for  life is  also  available,  it should give  special reasons in support of the sentence. For giving effect  to the  recommendation of  the Law Commission and the  Joint Committee  of Parliament  sub-section (3)  to section 354  was amended in the present form. The object the amendment therefore  is to  insist on  the lower  courts  to examine the  case as  elaborately from  the point of view of sentence as  from the  point cf  view of guilt and state its reasons for  imposing the sentence which would help the High Court  in   discharging  its   functions   particularly   in confirming a  sentence of  death or  enhancing a sentence of imprisonment for  life to  death.  This  object  is  further sought to  be achieved  by the introduction of sub-section 2 to s.  235 which  provides an  opportunity  of  hearing  the accused on the question of sentence. The provision requiring special reasons  for awarding  death sentence  makes it also clear that  the normal  sentence when punishment of death or imprisonment for  life could be awarded is only imprisonment for life  and if  the court imposes death sentence it should give special reasons. 1203      The development  of law  regarding  the  imposition  of death sentence  call be  summarised as follows. While before the Amending  Act 26  of  1955  was  introduced  the  normal sentence for  an offence  of murder  was death  and that the lesser sentence  is the exception, after the introduction of sub-s.. (5)  to s.  367  by  Act  26  of  1955  it  was  not obligatory for  the Court to state the reasons as to why the sentence of  death was  not passed.  By  the  amendment  the discretion of  the Court  in deciding  whether to  impose  a sentence of death or imprisonment for life became wider. The court was  bound to  exercise  its  judicial  discretion  in awarding  one   or  the  other  of  the  sentences.  By  the introduction of  s. 354(3) the normal sentence is the lesser sentence of  imprisonment for  life and  if the  sentence of death is  to be  awarded special  reasons will  have  to  be recorded. In  other  words,  the  court  before  imposing  a sentence of death should be satisfied that the offence is of such a  nature that  the extreme  penalty is called for. The decisions rendered  by this  Court after the introduction of the amendment  to S.354(3)  by Act 2 of 1974 have reiterated this position.  In Balwant  Singh v. State of Punjab(1) this Court summing  up the position observed that under s. 354(3) of the  Cr. P.C.,  1973, the  Court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of  death is  the general rule now and only special reasons, that  is to say, special facts and circumstances in a  given  case,  will  warrant  the  passing  of  the  death sentence. This  view was reiterated by this Court in Ambaram v. The  State of  Madhya Pradesh.(2)  In  Sarveshwar  Prasad Sharma v.  State of  Madhya Pradesh(3)  it was observed that this Court has in several cases indicated guidelines in this

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problem area  of life  and death  as a  result  of  judicial verdict but  none of these guidelines can be cut and dry nor exhaustive and  each case  will depend  upon the totality of the facts and circumstances and other matters revealed.      The  validity  of  imposition  of  death  sentence  was challenged in  the ground  that the  sentence puts an end to all Fundamental  Rights guaranteed  by clauses (a) to (g) of sub-clause (1)  of Art. 19 of the Constitution and therefore the law  with regard to capital sentence is unreasonable and not in  the interest  of the  general public. It was further contended that  the discretion  invested in  the  Judges  to impose capital  punishment is  not based  on any standard or policy required  by the  Legislature  for  imposing  capital punishment in preference to (1) [1976]2 S.C.R. 684 (2) [1976]4 S.C.C. 298 (3) [1978]1 S.C.R. 560 1204 imprisonment for  life. Further  it was  submitted that  the uncontrolled and unguided discretion in the Judges to impose capital punishment  or imprisonment  for life is hit by Art. 14 of  the Constitution.  Lastly, it  was contended that the provisions of  the law  do not provide a procedure for trial of factors  and circumstances  crucial for making the choice between the  capital penalty  and imprisonment  for life and therefore Art.  21 is violated. A Constitution Bench of this Court in Jagmohan Singh v. The State of U.P.(’) rejected all these contentions.  It was held that the deprivation of life is constitutionally permissible if that is done according to procedure established by law and that it cannot be held that capital sentence is per se unreasonable or not in the public interest. It  was further  held that  the  impossibility  of laying down  standards is  at the  very core of the criminal law as administered in India which invests the Judges with a very wide  discretion in  the matter of fixing the degree of punishment. That  discretion in  the matter  cf sentence  is liable to  be corrected  by superior Courts. The exercise of judicial discretion on well-recognised principles is, in the final: analysis,  the  safest  possible  safeguard  for  the accused. The  challenge under  Art. 14 was also negatived on the ground  that the  facts and circumstances of a crime are widely different,  and, since  a decision  of the  court  as regards punishment  is dependent upon a consideration of all the facts  and circumstances, there is hardly any ground for a challenge under Art. 14. The Court also negatived the plea that the  provisions of  law do  not provide a procedure for trial of  factors which  are crucial  for making  the choice between the  capital penalty  and imprisonment for life. The Court rejected all the challenges against the award of death sentence on the ground of violation of the provisions of the Constitution.  It   also  upheld   the  investment  of  wide discretion in  the matter of fixing the degree of punishment on the  Judges as  the exercise  of judicial  discretion  on well-recognised principles  is the safest possible safeguard for  the  accused.  The  Constitution  Bench  delivered  its judgment on the 3rd October, 1972. Subsequently amendment to the Code  of Criminal  Procedure, 1973, (Act 2 of 1974) came into force  on 1st  April, 1974.  The only change by the new Act is  the introduction  of s.  367  (S)  of  the  Criminal Procedure Code which provides that the judgement shall state the special reasons where a sentence of death is awarded for an offence  punishable with death or in the alternative with imprisonment for  life or  imprisonment for a term of years. The requirement  that the  courts should  state the  special reasons for  awarding the death sentence would indicate that

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the normal  sentence for  an offence  punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered (1) [1973] 2 S C. R. 541 1205 that sentence  of death  is appropriate  on  the  particular facts of the case It should give special reasons. Apart from the emphasis  that the  normal sentence  is imprisonment for life and  that special  reasons should be given for awarding the death sentence there is no further alteration in the law relating to  awarding  of  the  death  penalty.  As  already noticed the  effect of  the amendment was considered by this Court in  [1976] 2  S.C.R.: 684,  [1976] 4  S.C.C.  298  and [1978] 1  S.C.R. 560  (supra)  and  it  was  held  that  the awarding of sentence other than the sentence of death is the general rule  now only  special reasons,  that  is  to  say, special facts and circumstances in a given case will warrant the passing of the death sentence.      A recent  decision of this Court Rajendra Prasad’s case in Cr.  As. Nos.  512, 511  and 513 of 1978 was delivered on 9th February,  1979.(1) The  decision by  the  majority  was delivered by  Krishna Iyer  J. held  that "special  reasons" necessary for  imposing the death penalty must relate not to the crime  as such but to the criminal. It further held that death sentence  can be  awarded only  in certain  restricted categories The  tests that  are prescribed  are to  find out whether the  murderer holds  out a  terrible and  continuing threat to  social security  in the  setting of  a developing country and  poses a  grave peril to society’s survival. The other circumstances  which would justify imposition of death sentence are  when an  economic offender intentionally mixes poison in  drugs,  professionally  or  wilfully  adulterates intoxicating  substances   injuriously,  and   knowingly  or intentionally causes death for the sake of private profit or when a  murderous band of armed dacoits intentionally derail a train  and large  number of  people die  in consequence or when the  style of  violence and  systematic corruption  and deliberately planned  economic  offences  by  corporate  top echelons  are  often  a  terrible  technology  of  knowingly causing death.  Likewise when  a murderer is so hardened and so blood-thirsty  that within  the prison  and  without,  he makes  no  bones  about  killing  others  or  carries  on  a prosperous business in cadavers, then he becomes a candidate for death sentence.      I have  read through  the judgment  of the  Court  with utmost care.  The decision  is in  many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh’s  case. The  Court has proceeded to make law as regards  the conditions that are necessary for imposition of a  sentence of death under s. 302 I.P.C. It has proceeded to canalisation of sentencing discretion and has embarked on evolving working  rules on  punishment bearing  in mind  the enlightened flexibility of social sensibility. In doing so I feel the  court has  exceeded its  powers conferred on it by law.      (1) [1979] 3 S.C.R 78 1206      To substantiate  my statement,  I proceed to give a few extracts from the judgment. At the outset of the judgment it is  stated  that  the  precise  issue  before  it  was  "the canalisation of  the sentencing  discretion in  a  competing situation.. ...Therefore  this jurisprudential  exploration, within  the   framework  of   s.  302   I.P.C.,  has  become necessitous, both  because the  awesome ’either/or’  of  the Section spells  out no  specific indicators  and law in this

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fatal area  cannot afford to be conjectural".. "The flame of life cannot  flicker uncertain; and so s. 302 I.P.C. must be invested  with   pragmatic  concreteness  that  inhibits  ad hominem responses  of individual  judges  and  is  in  penal conformance with constitutional norms and world conscience." "Within the  dichotomous frame-work of s. 302 I.P.C., upheld in Jagmohan  Singh, we  have  to  evolve  working  rules  of punishment bearing  the markings  of enlightened flexibility and societal  sensibility.".......... "Therefore,  it is  no heresay to  imbibe and  inject the  social philosophy of the Constitution into  the Penal  Code to  resolve  the  tension between the  Past and  the Present."..... "That is the essay we undertake  here". "But  if legislative undertaking is not in sight  judges who  have to implement the code cannot fold up their  professional hands  but must  make  the  provision viable by  evolution of supplementary principles, even if it may appear  to possess  the flavour of law-making".. . "This Court’s tryst with the Constitution obligates it to lay down general rules,  not a  complete directory,  which will  lend predictability to  the law vis-a-vis the community and guide the judiciary  in such a grim verdict as choice between life and death."........ "Therefore, until Parliament speaks, the court cannot be silent."........ "This Court must extricate, until Parliament  legislates, the death sentence sector from judicial  subjectivism  and  consequent  uncertainty."...... "Having stated  the area  and  object  of  investigation  we address ourselves  to this grave penological issue purely as judges deciding  a legal  problem,  putting  aside  vie  vs, philosophical or criminological, one holds. But law, in this area, cannot  go  it  alone;  and  cross-fertilisation  from sociology,  history,   cultural  anthropology   and  current national perils  and  developmental  goals  and,  above  all constitutional currents, cannot be eschewed."      The above  are few  of the  passages in the "prolix and diffuse" judgment  as the  learned Judge  has chosen to call it. The  passages clearly  indicate that  the Court  in  the absence of  legislative  undertaking  has  embarked  on  law making as  in its  view the  Judges  cannot  fold  up  their professional hands  but must  make the  provision viable  by evolution of supplementary principles, even if it may appear to  possess  the  flavour  of  law-making,  and  that  until Parliament speaks the Court 1207 cannot be silent. With utmost respect I feel that the courts have no  such power to legislate and to frame rules to guide the infliction of death penalty.      The duty  of  the  court  so  far  as  enacted  law  is concerned, is  to interpret  and construe  the provisions of the enactment.  By interpretation  or construction  is meant the process  by which  the  courts  seek  to  ascertain  the meaning  of  the  legislature  through  the  medium  of  the authoritative forms  in which  it is  expressed. The  courts must take it absolutely for granted that the legislature has said what  is meant  alld meant what it has said. Judges are not at liberty to add or to take FRS or modify the letter of the law  simply because  they have  Cr reason to believe the true sentence legis is not completely or correctly expressed by it.  (Salmod on  Jurisprudence,  11th  Ed.  by  Glanville Williams, p.  153). The Constitution and the laws bind every court in  India and  that though  the  courts  are  free  to interpret they  are not  free to  overlook or  disregard the Constitution and  the laws.  As held  in  Young  v.  Bristol Aeroplane Co. Ltd.(l) the Court is not entitled to disregard the statutory provisions and to follow a decision of its own when that provision was not present in its mind.

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    It is equally beyond the functions of a Court to evolve working rules  for imposition  of death sentence bearing the markings of  enlightened flexibility  and social sensibility or to  make  law  by  cross  fertilisation  from  sociology, history, cultural  anthropology and  current national perils and  developmental  goals  and,  above  all,  constitutional currents. I  am of  the view  that it is the function of the Parliament to  frame laws  consistent with  the needs of the society. If the grounds for award of a sentence of death has to be  more specifically stated than that it is found in the Indian Penal Code and the Cr. P.C., it is for the Parliament to do  so. Various  legislative measures were introduced but were withdrawn from time to time. At present there is a Bill before the  Parliament. It  is for the Parliament to clarify the circumstances  under which  a sentence of death could be awarded. It  is for  the court  to administer  the law as it stands. In awarding sentence of death, the Court has to take into consideration  the various  aspects regarding the crime and  the  person  that  committed  the  crime  and  pass  an appropriate sentence  and if  it is  death sentence  to give special reasons as required by the Cr. P.C. If in deciding a case on  particular facts  a principle  is stated  it may be binding as  a precedent. If the Courts resort to rule making it will  not be  binding as  precedent. If the Courts are to embark on rule making the question arises whether      [1] [1947] 1 K.B.718, 1208 the responsibility  can be undertaken by a bench of 3 Judges with a  majority of  2 to  1. Is  it permissible for another bench to  proceed to  make laws  and prescribe  an  entirely different sets of rules ? There is no machinery by which the Court  could  ascertain  the  views  of  the  various  cross sections of  the society  which is a prerequisite before any law making is resorted to.      The Court  has embarked  on framing  rules  prescribing conditions for  imposition of  death  sentence  taking  into account  "cross-fertilisation   from   sociology,   history, cultural  anthropology   and  current  national  perils  and developmental   goals,   and   above   all,   constitutional currents". So  far as  constitutional currents are concerned the Constitution  Bench has  upheld the validity of awarding of the  death sentence. The Court has proceeded on the basis that the  earlier decisions  of this  Court have  taken into account only  the crime  and not  the criminal. The emphasis according to  the judgment should be on the criminal and not on the  crime. The  mode of  sentencing as  envisaged in the Penal Code and the Cr. P.C. requires that every fact that is relevant to  the determination of the sentence including the crime, the  criminal and  other environmental  circumstances will have  to be taken into account. The view of the learned Judge that  in awarding  a sentence  the  criminal  is  more important than  the crime  is not warranted by the law as it stands today.      I will  now refer  to various  points dealt with in the judgment  which   are  contrary   to  the  decision  of  the constitutional Bench.      Justice Krishna  Iyer says:  "The  main  focus  of  our judgment  is   on  this   poignant  gap   in  ’human  rights jurisprudence’  within   the  limits   of  the  Penal  Code, impregnated by  the Constitution. To put it pithily, a world order voicing  the worth  of the  human person,  a  cultural legacy charged with compassion, an interpretative liberation from colonial callousness lo life and liberty, a concern for social justice  as setting the sights of individual justice, interest with  the inherited text of the Penal Code to yield

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the goals  desiderated by  the Preamble  and Articles 14, 19 and 21." The challenge to the award of the death sentence as violative of  Articles 19,  14 and  21 was  repelled by  the Constitution Bench  by holding  that the death sentence is a permissible punishment  and  that  deprivation  of  life  is constitutionally  permissible   if  that   is  according  to procedure  established   by  law.   Regarding  laying   down standards in imposing the punishment the Court observed that the impossibility  of laying  down standards  is at the very core of  criminal law as administered in India which invests the Judges  with a  very wide  diseretion in  the matter  of fixing the degree of punishment and that 1209 this discretion  in the  matter of  sentence is liable to be corrected by  superior Courts. It was held that the exercise of judicial  discretion on  well recognised principles is in the final  analysis, the  safest possible  safeguard for the accused.  Justice   Krishna  Iyer   would  comment   on  the observations of  the  Constitution  Bench  above  quoted  as follows:  "The   acceptance  of   the   invulnerability   of discretionary  power   does  not   end  the‘   journey:   it inaugurates   the    search   for   those   ‘well-recognised principles’ Palekar,  J. speaks  of in  the  Jagmohan  case. Incidental  observations   without  concentration   on   the sentencing criteria  are not  the  ratio  of  the  decision. Judgments are  not Bible  for every  line to  be venerated," with respect  I am unable to agree with the characterization of Palekar  J’s judgment as "incidental observations without concentration on  the sentencing criteria". At p. 559 of the Reports Palekar  J. Observes:  In India this onerous duty is cast upon  Judges and for more than a century the judges are carrying out  this duty  under the  Indian Penal  Code.  The impossibility of  laying down  standards is at the very core of the  criminal law  as administered in India which invests the Judges  with a  very wide  discretion in  the matter  of fixing the  degree of  punishment.  That  discretion  m  the matter of  sentence is, as already pointed out, liable to be corrected by  superior courts.  Laying down  of standards to the limited  extent  possible  as  was  done  in  the  Model Judicial  Code   would  not   serve  the   purpose."   After disapproving laying  down of  standards  the  learned  Judge proceeded "The  exercise of  judicial  discretion  on  well- recognised, principles is, in the final analysis, the safest possible safeguard for the accused." (Emphasis supplied) The learned Judge quoted with approval the view of this Court in Budhan Chowdhary v. State of Bihar(1) which is as follows:-           "The judicial decision must of necessity depend on      the facts and circumstances of each particular case and      what  may   superficially  appear   to  be  an  unequal      application of  the law may not necessarily amount to a      denial of  equal protection unless there is shown to be      present in  it an element of intentional and purposeful      discrimination.-Further,  the  discretion  of  judicial      officers is  not arbitrary  and the  law pro  vides for      revision by  superior courts  of orders  passed by  the      subordinate courts.  In such  circumstances,  there  is      hardly  any  ground  for  apprehending  any  capricious      discrimination by judicial tribunals."      Palekar, J.  continued "Crime as crime may appear to be superficially the  same but the facts and circumstances of a crime are widely (1) [1955] S. C. R. 1045 21-409SCI/79 1210 different and  since a  decision of  the  court  as  regards

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punishment is  dependent upon  a consideration  of  all  the facts, and  circumstances, there  is hardly  any ground  for challenge under  Article 14."  At page  560 of  the reports, Palekar, J,  explains the  procedure that is followed by the Courts  which   enables  to   bring  into   focus  all   the circumstances that  are relevant to be taken into account in awarding the  sentence. On  a reading of the judgment of the Constitution Bench  I regard  my inability to share the view of  Krishna  Iyer  J.  that  Palekar  J’s  observations  are incidental and  without concentration.  It may be noted that the laying  down of  the standards  which was  deprecated is being attempted in this decision.      Krishna Iyer  J. would  state "It  is  constitutionally permissible to  swing a  criminal out of corporeal existence only if  the security of State and society, public order and the interests  of the  general public  compel that course as provided  in   Art.  19(2)  to  (6)".  This  view  again  is inconsistent with  the law  laid down  by  the  Constitution Bench  which   has  held   that  deprivation   of  life   is constitutionally permissible  if that  is done  according to procedure established  by law.  Krishna Iyer J. has observed that "no  Code can rise higher than the Constitution and the Penal Code can survive only if it pays homage to the suprema lex. The only correct approach is to read into s. 302 I.P.C. and s. 354(3) Cr. P.C., the human rights and human trends in the Constitution.  So examined,  the right  to life  and  to fundamental freedoms is deprived when he is hanged to death, his  dignity   is  defiled  when  his  neck  is  noosed  and strangled," the  only change  after the  Constitution  Bench delivered its  judgment is  the introduction  of  s.  354(3) which requires  special reasons  to be given if the court is to award  the death  sentence. If without the restriction of stating  sufficient   reasons  death   sentence   could   be constitutionally awarded under the I.P.C. and Cr. P.C. as it stood before  the amendment, it is difficult to perceive how by requiring special reasons to be given the amended section would be  unconstitutional unless  the "sentencing sector is made most  restrictive and least vagarious". Krishna lyer J. has  held   that  "such   extra   ordinary   grounds   alone constitutionally qualify  as ’special  reasons’ as  leave no option to the court but to execute the offender if State and society  are   to  survive.  One  stroke  of  murder  hardly qualifies for this drastic requirement, however gruesome the killing or  pathetic  the  situation,  unless  the  inherent testimony oozing  from that  act is  irresistible  that  the murderous appetite of the convict is too chronic arid deadly that ordered  life in  a given  locality or  society  or  in prison itself would be gone if this man were now or later to be at  large. If  he is  an irredeemable  murderer,  like  a blood-thirsty  tiger,   he  has   to  quit  his  terrestrial tenancy." The Constitution Bench dealing with the 1211 award of  death sentence  observed. "But  some at  least are diabolical in  conception and  cruel in  execution. In  some others where  the victim is a person of high standing in the country,  society  is  liable  to  be  rocked  to  its  very foundation. Such  murders cannot  be simply  wished away  by finding alibis in the social mal-adjustment of the murderer. Prevalence of  such crimes  speaks, in  the opinion of many, for the  inevitability of  death penalty  not only by way of deterrence but  as a  token of  emphatic disapproval  by the society." After referring to the Law Commission’s Report the Court observed:  "A very  responsible body  has come  to the conclusion after  considering all  the relevant  factors. On the conclusions  thus offered to us, it will be difficult to

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hold that  capital punishment as such is unreasonable or not required in  the public  interest." I  find it  difficult to reconcile the  law stated by the Constitution Bench with the view expressed by Krishna Iyer J.      The judgment delivered by Krishna Iyer J. for the Court and the minority judgment of Justice A. P. Sen have dealt at considerable length with various aspects and desirability or otherwise of  imposing a sentence of death. Tile controversy over capital  punishment is  not new.  For several centuries the debate  is going  on. I am conscious that it is a highly controversial subject  on which  much can  be said  on  both sides. Fortunately,  for the  Judges it is neither necessary nor desirable to subscribe to one of the two views. All that the Judges are expected to do is to administer the law as it stands. In  fact, if  I am  strong believer  of abolition of death sentence  or supporter  of ’life fol. life’ and ’tooth for  tooth’  doctrine  I  would  have  excused  myself  from deciding a case involving confirmation of death sentence.      Justice Krishna  Iyer has  not concealed his abhorrence at the  infliction of  death sentence.  He pleads that death sentence should  be abolished.  He has expressed his view in unmistakable terms:  "Every sombre  dawn a  human  being  is hanged by the legal process, the flag of human justice shall be  hung  half-mast".  Again  "The  right  to  life  and  to fundamental freedoms is deprived when he is hanged to death, his  dignity   is  defiled  when  his  neck  is  noosed  and strangled". ...."The Indian cultural current also counts and so does  our  spiritual  chemistry,  based  on  divinity  in everyone, catalysed  by the Budha-Gandhi compassion".. "This axiom is  a vote against ’death’ and hope in ’life’." I have great respect  for the  views of  the learned  Judge. He  is strongly espousing  a cause but I feel embarrassed when I am required to  follow his views for I consider it is my solemn duty to  administer the  law  of  the  land  as  it  stands. According to  my conception my duty is to administer the law as it  stands. It  is not  for me lo say what the law should be. If I am satisfied that the trial Judge and the 1212 High Court  have given special reasons as required under the law it  is my  duty to  confirm the  sentence of death. Vide observations of  this Court  in Ram Narain and ors. v. State of U.P.(1) quoted with approval in Jagmohan’s case.      I do  not feel  it necessary  to refer  to the  various points dealt With by Krishna Iyer J. in his long and learned ’essay’. I have quoted in extenso from his judgment and also from the judgment of the Constitution Bench in order to show that the two views are irreconcilable and that I am bound to follow the  law laid  down by  the Constitution  Bench. With respect I  find myself  in complete agreement with the views expressed by  the Constitution  Bench. I am therefore unable to follow the decision of the Bench.      I have  discussed the  general principles  laid down in Rajendra Prasad’s  case regarding the circumstances that are necessary for  the imposition  of the  death sentence. Apart from being unable to agree with the guidelines prescribed, I am of the view that the general principles laid down are not the ratio decidendi of the case. The courts are not bound to follow them.  Halsbury’s Laws of England (3rd Ed. Vol. 22 at p. 796) explains what ratio decidendi is. The enunciation of the reason  or principle  on which a question before a court has been  decided is  alone  binding  as  a  precedent.  The concrete decision  alone is  binding between  the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of  the judgment  in relation  to the  subject matter of the decision, which alone has the force of law and

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which, when  it is clear what it was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and  lay down  a rule  that is  unnecessary for the purpose in  hand have no binding authority on another court, though  they  may  have  some  merely  persuasive  efficacy. Decisions upon  matters of fact are not binding on any other court. This  Court has  held that precedents which enunciate rules of  law  form  the  foundation  of  administration  of justice under  our system.  (Tribhuvandas v. Ratilal).(2) It has also  been  held  in  Amritsar  Municipality  v.  Hazara Singh(3) that  the decisions  of even  the highest  court on questions of  fact  cannot  be  cited  as  precedents.  Lord Halsbury in  Quinn v.  Leathem(4) said  that every  judgment must be  read as  applicable to the particular facts proved, or assumed  to  be  proved,  since  the  generality  of  the expressions which  may be found there are not intended to be expositions of  the whole law, but governed and qualified by the particular facts of the case in (1) A. I. R. 1971 S. C. 757. (2) A.I.R. 1968 S. C. 372=70 Bom. L. R. 73. (3) A. 1. R. 1975 S. C. 1087 (4) 1901 A. . 495. at p. 506 1213 which such  expressions arc  to be  found. The learned Judge proceeds To  observe "....a  case is  only an  authority for what it  actually decides.  I entirely  deny that  it can be quoted for  a proposition  that may seem to follow logically from it.  The courts  are not  bound by  the observations in decisions beyond  the point actually decided. The courts can say "We cannot know that the House of Lords would carry this determination further  than they have carried it". (per Best C.J. in Fletcher v. Lord Sondes.(l)      Applying  the  principles  above  quoted,  I  will  now proceed to  find out what are the points decided in the case and to what extent it will be binding on courts. In Rajendra Prasad’s case  the three  appeals in  which death  sentences were imposed  came up  before the Court for consideration of the question  whether the  death sentence  awarded should be confirmed or  not. After  appreciation of  the facts  of the case the  Court came  to the  unanimous conclusion  that the concerned accused  have been  found guilty of the offence of murder  and   confirmed  the   conviction.   Regarding   the imposition of  the death  sentence the  majority was  of the view that  there were no sufficient reasons for imposing the extreme  penalty  while  the  minority  differed  from  that conclusion. The principle that can be derived in the case is that on  the facts and circumstances established in the case there are  not ’sufficient  reasons’ for  imposing the death sentence. Only  to this  limited extent  if at  all  is  the decision binding  on the courts. It is common knowledge that the facts  are rarely  similar in two cases. The root of the doctrine of  precedent is  that alike  cases must be decided alike. Only  then it  is possible  to ensure  that the court bound by  a previous  case decides  the new case in the same way as  the other  court would  have decided it. It is all a question of  probabilities, but the probability that a court will decide  a new  case in  the same way as would the court which decided  one of  the cases cited becomes less and less as the  differences between  the  facts  of  the  two  cases increase.      As every judgment will have to be read as applicable to the particular facts proved will refer to the facts found in Rajendra Prasad’s  case. The  accused in  Rajendra  Prasad’s case a  youngman after  some years  served  in  prison,  was released on  Gandhi Jayanti Day. Some minor incident ignited

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his latent  feud and  he stabbed Ram Bharosey and his friend Mansukh several  times and  the  latter  succumbed.  He  was sentenced to death by the Sessions Court which was confirmed by the  High Court.  This Court applying the canons which it had laid  down came  to the  conclusion that  as nothing  on record suggested  that Rajendra Prasad was beyond redemption and the record does not (1) [1826] 3 Bing. 501 at p. 560 1214 hint that  such an  attempt was  made inside the prison they did not  see any special reason to hang him out of corporeal existence. As  pointed out  earlier I am unable to subscribe to the  canons laid  down in  the case.  The utmost to which this case  can be  considered as  an authority is that if in similar circumstances  when  a  person’s  latent  feud  gets ignited and  stabs two  persons several  times it  would not furnish special  reasons for inflicting the extreme penalty. In the second case relating to Kunjukunju the accused cut to death the  innocent wife  and the  immaculate  kids  in  the secrecy of  night. The trial court as well as the High Court found it  was a  deliberate and  cold blooded  act performed with considerable  brutality.  The  majority  expressed  its opinion that  if the  crime  alone  was  the  criterion  the sentence was  proper but  if the  criminal was the target it was not  proper. The  Cr. P.C.  requires the  courts to take into account  the  circumstances  in  which  the  crime  was committed,  the  particulars  about  the  criminal  and  all relevant circumstances  relating to  the commission  of  the crime by  the criminal.  The trial court is required to give reasons and  they are to be scrutinised by the High Court on a reference  to it  for confirmation  of the death sentence. The High  Court also  has to  satisfy itself  that there arc special reasons for inflicting the extreme penalty. The view of the  majority that  the test should be whether Janardanan is a  social security  risk, altogether  beyond  salvage  by therapeutic life  sentence is neither in accordance with the requirements of the Cr.P.C. nor law laid down by this Court. The  decisions   of  this   Court  insist   not  only  on  a consideration of  the criminal  but also  the nature  of the crime and  all other  relevant circumstances.  As  the  view expressed  in  the  case  is  not  in  conformity  with  the decisions  of   this  court  it  cannot  be  followed  as  a precedent.  At  the  most  the  decision  may  be  taken  as authority that in similar circumstances the cutting to death of the  innocent wife and the immaculate kids in the secrecy of the  night may  not amount to special reasons as required under the  Cr.P.C. In  the third  appeal the appellant flung the vessels  over the  division of  which the wrangle arose, went  inside   the  house,  emerged  armed,  picked  up  all altercation eventuating  the young man (whose age was around 18 or  20) stabbing  to death  three members  of  the  other branch of  the family.  He chased and killed, excited by the perverted sense  of injustice at the partition. The majority was of  the  view  that  it  is  illegal  to  award  capital punishment    without     considering    the    correctional possibilities inside  the prison.  The court was of the view that although  the crime  was  attended  with  extraordinary cruelty, the accused being young and malleable are and their reasonable  prospect  of  reformation  and  absence  of  any conclusive circumstance that the assailant is a habitual 1215 murderer  or  given  to  chronic  violence-these  catena  of circumstances bearing  on the  offender call  for the lesser sentence. Here  again it is difficult to agree with the test applied for  it is  not in  conformity with the decisions of

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this Court  or the requirements of the law. If at all it may be  an   authority  only  for  the  proposition  that  under identical circumstances  the stabbing  of three persons by a young man  in an  altercation  when  he  was  excited  by  a perverted sense  of injustice  would not  be special reasons for awarding the extreme penalty.      In the  case before us the facts are not identical with any of  the cases in the appeals. The appellant was released after undergoing  a term  of imprisonment  for the murder of his wife. After release he lived with his cousin Hukam Singh for about  six months.  The wife  and son  objected. On  the night of the occurrence when he was sleeping with Desa Singh son  of  Hukam  Singh  in  the  outer  courtyard  and  three daughters of  Hukam Singh  in the  inner courtyard  at about midnight the  petitioner got up, inflicted fatal injuries on the son  Desa Singh  and the  two daughters  Durga  Bai  and Veeran Bai  and caused  grievous injuries to Vidya Bai while they were  sleeping. ’the  trial court  as well  as the High Court on  a consideration  of the entire facts regarding the crime and  the criminal  came to  the  conclusion  that  the appellant acted  in a  very cruel manner. The victims had no cause to  suspect the  intentions of the petitioner and went to sleep.  Taking  advantage  of  the  situation,  when  the victims could  not defend,  the appellant  killed three  and seriously wounded  the  fourth.  The  courts  below  rightly characterised  the   offence   as   heinous   and   in   the circumstances of  the case  they were  of the  view that the only appropriate  sentence is the extreme penalty. I have no hesitation in  agreeing with  that conclusion.  The facts of the case  may have  some resemblance  to Kunjukunju  case in that the  accused in that case cut his innocent wife and the kids  under   the  secrecy  of  the  night.  But  the  other circumstances namely  his  cold  calculated  and  deliberate murder of  innocent children  of Hukam  Singh who  had given shelter to  him when  they were  sleeping discloses that the crime is  an extremely  brutal and  heinous one  calling for imposition of  death-sentence I  agree with  the trial Court and the  High Court  and find ’special reasons’ required for imposition of death has been clearly made out.      In the  result I  find myself  unable to agree with the reasoning or conclusion arrived at by this Court in Rajendra Prasad’s case  mainly on  the  ground  that  it  is  not  in conformity with the decision of the 1216 Constitutional Bench  of this  Court in  Jagmohan’s case and that  the   propositions  laid   down  are  not  within  the competence of  the Court.  Though  the  decision  cannot  be treated as  a binding precedent yet as it is a decision of a bench of  this Court  I direct  the matter  be placed before Hon’ble the Chief Justice for constituting a larger bench to decide the case P.B.R 1217