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PETITIONER: BISHNU DEO SHAW @ BISHNU DAYAL

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT22/02/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KRISHNAIYER, V.R.

CITATION:  1979 AIR  964            1979 SCR  (3) 355  1979 SCC  (3) 714  CITATOR INFO :  R          1979 SC1384  (10)  O          1980 SC 898  (202)  MV         1982 SC1325  (61)

ACT:      Demand of  death for  murder, rationale  of section 302 I.P.C. vis-a-vis-Section  354(3)  of  the  Crl.  P.C.  1973- "Special Reasons",  meaning of-Section  354(3) 360,  361  of Crl. P.C.-Scope of.

HEADNOTE:      The appellant was convicted by the Additional Session’s Judge Alipore  for the  murder of  his son  and sentenced to death. The  reason given  by the Sessions Judge was that the murder was  "cruel and brutal" and that the facts showed the "grim determination"  of the  accused to  kill the deceased. The Sessions  Judge made  no reference  to the motive of the accused for  the commission  of the  murder. The  High Court while confirming  the conviction  and sentence observed that the accused had previously murdered his wife, suspecting her infidelity that  the sentence of imprisonment imposed on him for the  murder of  his wife had no sobering effect, that he suspected that  the deceased in the present case was not his own son and so he murdered him without any mercy or remorse, and that he, therefore deserved no mercy.      Allowing the  appeal by  special leave  limited to  the question of sentence, the Court ^      HELD: 1. There were no "special reasons" justifying the imposition of the death penalty. [371 F]      (a) The  Sessions  Judge  was  wrong  in  imposing  the sentence of death without even a reference to the reason why the appellant committed the murder. [371 C]      (b)  The   observation  of  the  High  Court  that  the appellant deserved  no mercy  because  he  showed  no  mercy smacks very  much of  punishment by way of retribution. [371 C]      (c) From  the evidence,  it is clear that the appellant was a  moody person who had for years been brooding over the suspected infidelity  of his wife and the injury of having a son foisted  on him.  The mere use of adjectives like "cruel and brutal" does not supply the special reasons contemplated

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by section  354(3) of  the Criminal  Procedure  Code,  1973. [371D-E]      Rajendra Prasad  v. State  of Uttar  Pradesh, [1979]  3 S.C.R. 78, applied.      2. "Special reasons" are reasons which are special with reference to  the offender, with reference to constitutional and legislative  directives and with reference to the times, that is,  with reference to contemporary ideas in the fields of criminology  and connected  sciences. Special reasons are those which  lead inevitably  to  the  conclusion  that  the offender is  beyond redemption,  having due  regard  to  his personality and proclivity, to the legislative 356 policy of  reformation of  the offender  and to the advances made in  the methods of treatment etc. Section 354(3) of the 1973 Code  has  narrowed  the  discretion  of  sentence  for murder. Death  sentence is ordinarily ruled out and can only be imposed  for "Special  reasons". Judges are left with the task of discovering "special reasons". [368 D-E, 370E-F]      (a)  Apart   from  Section  354(3),  there  is  another provision in  the  Code  which  also  uses  the  significant expression "Special reasons". It is Section 361, Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the 1898 Code  and provides for the release on probation of good conduct or  after admonition any person not under twenty-one years of  age who is convicted of an offence punishable with fine only  or with imprisonment for a term of seven years or less, or  any person  under twenty-one  years of  age or any woman who  is convicted  of an  offence not  punishable with death or  imprisonment for  life, if  no previous offence is proved against  the offender, and if it appears to the Court having regard  to the  age, character  or antecedents of the offender, and  to the circumstances in which the offence was committed, that  it is expedient that the offender should be released on  probation of  good conduct or after admonition. If the  Court refrains  from dealing  with an offender under Section 360  or under  the provisions  of the  Probation  of Offenders Act, or any other law for the treatment, training, or rehabilitation  of youthful  offenders, where  the  Court could have  done, so,  Section 361, which is a new provision in the  1973 Code makes it mandatory for the Court to record in its  judgment the  "Special reasons"  for not  doing  so. Section 361  thus casts  a duty  upon the Court to apply the provisions of  Section wherever it is possible to do so and, to state  "special reasons"  if it  does not do so. [368F-H, 369A-B]      (b)  In  the  context  of  Section  360,  the  "Special reasons" contemplated  by Section  361 must  be such  as  to compel the Court to hold that it is impossible to reform and rehabilitate the  offenders, after examining the matter with due regard  to the  age, character  and antecedents  of  the offender and  the circumstances  in which  the  offence  was committed. This  is some  indication by the legislature that reformation and  rehabilitation of  offenders, and  not mere deterrence  are  now  among  the  foremost  objects  of  the administration of  criminal justice  in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same  time and  they are part of the emerging picture of acceptance by  the Indian  Parliament of  the new  trends in criminology. Therefore,  the personality  of the offender as revealed  by  his  age,  character,  antecedents  and  other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence  to be  awarded. Special reasons must have some relation to these factors. [369B-E]

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    3. Criminal justice is not a computer machine. It deals with complex  human problems  and diverse  human beings.  It deals with  persons who  are otherwise  like the rest of us, who work  and play,  who laugh and mourn, who love and hate, who yearn  for affection  and approval, as all of us do, who think learn and forget. Like the rest of us they too are the creatures  of  circumstances.  Heredity,  environment,  home neighbourhood, upbringing, school, friends, associates, even casual acquaintences,  the books that one reads, newspapers, radio and TV, the economics of the household, the oppor- 357 tunities  provided   by  circumstances  and  the  calamatics resulting  therefrom   the  success  and  failure  of  one’s undertakings  the   affairs  of  the  heart,  ambitions  and frustrations, the  ideas and  ideologies of  the time, these and several  other ordinary  and extra-ordinary incidents of life contribute  to a person’s personality and influence his conduct. Differently  shaped and  differently  circumstanced individuals react  differently in  given situations. A judge has to  balance the  personality of  the offender  with  the circumstances the  situations and  the reactions  and choose the appropriate  sentence to be imposed. A judge must try to answer a  myriad question  such as was the offence committed without premeditation  or was  it after  due deliberation  ? What was the motive for the crime ? Was it for gain ? Was it the outcome of a village feud ? Was it the result of a petty drunken, street  brawl, or  a domestic  bickering between  a helpless husband  and a helpless wife ? Was it due to sexual jealousy ?  Was the  murder committed  under  some,  stress, emotional or  otherwise ?  What is  the  background  of  the offender ?  What is his social and economic status ? What is the level  of his education or intelligence ? Do his actions betray  a  particularly  callous  indifference  towards  the welfare of  society, or  on the  other hand,  do they show a great concern  for humanity and are in fact inspired by such concern   ?    Is   the    offender   so   perpetually   and constitutionally at  war with  society that there is no hope of ever  reclaiming him  from being a menace to society ? Or is he  a person who is patently amenable to reform ? [369 E- H, 370 A-C]      (a) Judges  in India  have the  discretion to impose or not to  impose the  death penalty.  It is  one of  the great burdens which  judges in  this country have to carry. In the past, the reasons which weighed in the matter of awarding or not awarding  the sentence  of death varied widely and there was certainly  room for  complaint that  there  was  unequal application of  the law  in the  matter of imposition of the sentence of death. [367C-D]      (b) There  cannot be  any higher basic human right than the right  to life  and  there  can  not  be  anything  more offensive to human dignity than a violation of that right by the infliction  of the  death penalty. It is in the light of the right  to life  as a  basic concept of human dignity, in the context of the unproven efficacy of the death penalty as a deterrent  and in  the background  of modern  theories  of criminology based  upon progress  in the  fields of science, medicine, psychiatry and sociology and in the setting of the march of  the movement  for abolition of Capital Punishment, that Judges  in India  are required to decide which sentence to impose  in a  case of  murder, death  or imprisonment for life? [366D, 367B-C]           Furman v.  Georgia, 33 Lawyers Edn. 2nd Series 346 referred to.      (c) Realising  that  discretion,  even  judicial,  must proceed along perceptive lines, but, conscious, all the same

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that such  discretion cannot  be reduced to formulate or put into pigeon-holes,  this Court  has been  at great pain ever since Ediga  Annamma to  point out  the path  along which to proceed. In  the  latest  pronouncement  of  this  Court  in Rajendra Prasad  v. State of Uttar Pradesh, several relevant principles have  been enunciated  to guide  the exercise  of discretion in  making the  choice between  the penalties  of death and life-imprisonment. [367F-G]      Ediga Annamma  v. State  of  A.P.  [1974]  S.C.C.  443, Rajendra Prasad  v. State  of U.P.  [1979] 3 SCR 78 referred to. 358      4.  Among   the  several  theories  of  punishment  the reformative  theory   is  irrelevant   where  death  is  the punishment  since   life  and  not  death  can  reform;  the preventive theory is unimportant where the choice is between death and  life imprisonment  as in  India; the  retributive theory  is  incongruous  in  an  era  of  enlightenment  and inadequate as  a theory since it does not attempt to justify punishment by  any beneficial  results either to the society or to  the person punished. Equally, the denunciatory theory is as inadequate as the retributive theory since it does not justify punishment by its results. [359H, 360A-B, 361B]      5. (a) The very nature of the penalty of death makes it imperative  that   at  every   suitable   opportunity   life imprisonment should  be  preferred  to  the  death  penalty. [359E]      Furman v. Georgia, 33 L.ed. 2nd Edn. 346; relied on.      (b) All  studies made  on the  subject whether  capital punishment  is   the  most   desirable  and  most  effective instrument for  protecting the  community from violent crime than other  penalties say,  a sentence  of imprisonment  for long terms,  have led  to  the  conclusion  that  the  death penalty is inconsequential as a deterrent. [361 F]      (c) There  is no  positive indication  that  the  death penalty has  been deterrent. In other words, the efficacy of the death penalty as a deterrent is unproven. [365A]      6. The  death penalty,  rather than  deterring  murder, actually  deters   the  proper  administration  of  criminal justice. [365 A-B]      (a) There  is the  absolute finality and irrevocability of the death penalty. Human justice can never be infallible. The  most  conscientious  judge  is  no  proof  against  any mistakes. Cases are unknown where innocent persons have been hanged in India and elsewhere. [365B-C]      (b) Some  Judges and  Jurists have an abhorrence of the death penalty  that they  would rather  find a guilty person not guilty  than send  even a  guilty person to the gallows. The refusal  of juries  to convict persons of murder because of the  death penalty  is a well known phenomenon throughout the world.  A perusal  of  some  of  the  judgments  of  the Superior Courts  in India  dealing with  cases  where  Trial Courts have  imposed sentence  of  death  reveals  the  same reluctance to  convict because the result would otherwise be to confirm  the sentence  of death.  Thus a guilty person is prevented from  conviction by  a possibility  that  a  death penalty may otherwise be the result. [365C-D]      (c) Yet  a more  ’grievious  injury’  which  the  death penalty inflicts  on the  administration of Criminal Justice is  that   it  rejects  reformation  and  rehabilitation  of offenders as among the most important objectives of Criminal Justice,  though  the  conscience  of  the  World  Community speaking through  the voices  of the  Legislature of several countries  of   the  world   has  accepted  reformation  and rehabilitation as  among  the  basic  purposes  of  Criminal

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Justice. Death  penalty is the brooding giant in the part of reform and  treatment of  Crime and  Criminals, ’inequitably sabotaging  any   social  or   institutional  programme   to reformation’. It is the ’fifth column’ in the administration of criminal justice. [365E-G]      (d) There  is also  the compelling  class complexion of the  death  penalty.  A  tragic  by-product  of  social  and economic deprivation is that the ’have-nots’ 359 in  every  society  always  have  been  subject  to  greater pressure to  commit crimes  and to  fewer  constraints  than their more  affluent fellow  citizens.  So,  the  burden  of capital punishment  falls more frequently upon the ignorant, the improverished and the underprivilege. [365 G-H]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 70 of 1979.      Appeal by  Special Leave  from the  Judgment and  order dated 1-2-1978 of the Calcutta High Court in Criminal Appeal No. 273 of 1976 and death Reference No. 4/76.      H. C. Mittal (Amicus Curiae) for the Appellant.      G. S. Chatterjee for the Respondent.      The following Judgments were delivered:      CHINNAPPA REDDY,  J.-"The murderer  has killed.  It  is wrong to kill. Let us kill the murderer". That was how a Mr. Bonsall of  Manchester (quoted  by Arthur  Koestler  in  his ’Drinkers of  Infinity’), in  a letter  to the Press, neatly summed up  the  paradox  and  the  pathology  of  the  Death Penalty. The  unsoundness of  the rationale of the demand of death for  murder has  been  discussed  and  exposed  by  my brother Krishna  Iyer, J.,  in  a  recent  pronouncement  in Rajendra Prasad  v. State  of Uttar Pradesh(1). I would like to add an appendix to what has been said there.      The dilemma  of the  Judge in every murder case, "Death or life  imprisonment for  the murderer  ?" is  the question with which  we are  faced in this appeal. The very nature of the penalty  of death  appears to make it imperative that at every  suitable  opportunity  life  imprisonment  should  be preferred to  the  death  penalty.  "The  penalty  of  death differs from  all other forms of criminal punishment, not in degree  but   in  kind.   It  is   unique   in   its   total irrevocability.  It   is  unique   in   its   rejection   of rehabilitation of the convict as a basic purpose of criminal justice.  And,   it  is   unique  finally  in  its  absolute renunciation of  all that  is embodied  in  our  concept  of humanity" (per Stewart J., in Furman v. Georgia) (2). "Death is irrevocable,  life imprisonment is not. Death, of course, makes rehabilitation impossible, life imprisonment does not" (per Marshall, J., in Furman v. Georgia).      Theories of  punishment, there  are  many  reformative, preventive, retributive,  denunciatory and deterrent. Let us examine which  cap fits  capital punishment. The reformative theory is irrelevant where 360 death is the punishment since life and not death can reform. The preventive  theory is  unimportant where  the choice  is between death and life imprisonment as in India.      The retributive  theory is  incongruous in  an  era  of enlightenment. It  is inadequate  as a  theory since it does not attempt  to justify punishment by any beneficial results either to  the society  or to  the persons  punished. It is, however, necessary  to clear  a common misunderstanding that

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the  retributive   theory  justifies   the  death   penalty. According to the retributivist society has the right and the duty to  vindicate the wrong done to it and it must impose a punishment which  fits the crime. It does not mean returning of evil for evil but the righting of a wrong. It implies the imposition of  a just  but no  more than  a just penalty and automatically rules out excessive punishment and, therefore, capital punishment.  According to  a modern  exponent of the retributive theory  of justice  "capital punishment... .. is with out  foundation in  a theory of just punishment. Indeed one could  go further  and assert that capital punishment is antithetical to  the purposes  and  principles  of  punitive sanctions in  the law. Requital, when properly understood in terms of  a concept  of just  law, undoubtedly  does have  a legitimate role in punishment. However, neither requital nor punishment in  general is a returning of evil for evil, and, therefore, I see no support for the demand that a murder (or an act  of treason,  or some  other serious offence) be paid for with a life". The Biblical injunction ’an eye for an eye and a  tooth for  a tooth’  is often  quoted as  if it was a command to  do  retributive  justice.  It  was  not.  Jewish history shows  that it  was meant  to be  merciful  and  set limits to  harsh  punishments  which  were  imposed  earlier including the death penalty for blasphamy, Sabbath breaking, adultery, false  prophecy, cursing,  striking a  parent etc. And, as  one abolitionist  reminds us,  who,  one  may  ask, remembers the  voice of  the other Jew: "Whoever shall smite on thy right cheek, turn to him the other also ?".      The  denunciatory   theory  of  punishment  is  only  a different shade of the retributive theory but from a sternly moral plain. Lord Denning advanced the view before the Royal Commission on  Capital Punishment: "The punishment inflicted for grave  crimes should  adequately reflect  the  revulsion felt by  the great  majority of  citizens for  them. It is a mistake to  consider the  objects  of  punishment  as  being deterrent or reformative or preventive and nothing else. The ultimate justification of any punishment is not that it is a deterrent but  that it  is the  emphatic denunciation by the community of  a crime, and from this point of view there are some murders  which in  the present  state of opinion demand the most emphatic denunciation of all, namely the 361 death penalty"  .. "The  truth is  that some  crimes are  so outrageous that  society  insists  on  adequate  punishment, because the  wrong-doer deserves it, irrespective of whether it is a deterrent or not". The implication of this statement is that  the death  penalty is  necessary  not  because  the preservation of  society requires  it  but  because  society demands it.  Despite the  high moral  tone and  phrase,  the denunciatory theory,  as propounded,  is nothing but an echo of the  retributive theory  as explained  by Stephen who had said earlier:  "The criminal  law stands  to the  passion of revenge in  much the same relation as marriage to the sexual appetite". The  denunciatory theory  is as inadequate as the retributive theory  since it  does not justify punishment by its results.  As Prof.  Hart points out the idea that we may punish offenders  not to  prevent harm  or suffering or even the reptition  of the  offence but  simply  as  a  means  of emphatically expressing  our condemnation,  is uncomfortably close to  human sacrifice as an expression of righteousness. And, the question remains: "Why should denunciation take the form of punishment".      The deterrent  theory may  now  be  considered.  It  is important to  notice here  that the  question is not whether the penalty  of death  has  deterrent  effect  on  potential

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murderers but  whether it deters more effectively than other penalties say,  a sentence of imprisonment for a long term ? Is Capital  Punishment  the  most  desirable  and  the  most effective  instrument  for  protecting  the  community  from violent crime  ? What is the evidence that it has a uniquely deterrent force  compared with the alternative of protracted imprisonment ?  If the  death penalty really and appreciably decreases  murder,   if  there   is  equally   no  effective substitute  and  if  its  incidents  are  not  injurious  to society, we  may well  support the  death penalty.  But  all studies made  on the subject, as I will presently point out, appear to  have led to the conclusion that the death penalty is inconsequential as a deterrent.      Sir James  Fitz James  Stephen, a great Victorian Judge and a  vigorous exponent of the deterrent theory said in his Essay on  Capital Punishment: "No other punishment of death. This is  one of those committing crimes as the punishment of death. This  is  one  of  those  propositions  which  it  is difficult to  prove simply  because they  are in  themselves more obvious than any proof can make them. It is possible to display ingenuity  in arguing  against it,  but that is all. The whole  experience of  mankind is in the other direction. The threat  of instant  death is the one to which resort has always been  made when  there was  an absolute  necessity of producing some  results.. No  one goes to certain inevitable death except by compulsion. Put the 362 matter the other way, was there ever yet a criminal who when sentenced to  death and  brought out to die would refuse the offer  of  a  commutation  of  a  sentence  for  a  severest secondary punishment?  Surely not.  Why is this? It can only be because  ’all that a man has will be given for his life". In any secondary punishment however terrible, there is hope; but death  is death;  its terrors  cannot be  described more forcibly".      Stephen’s statement was admittedly a dogmatic assertion since he  himself stated that it was a proposition difficult to prove  though according  to him,  self evident. The great fallacy in  the argument  of Stephen has been pointed out by several criminologists. Stephen makes no distinction between a threat  of certain and imminent punishment which faces the convicted murderer and the threat of a different problamatic punishment which  may  or  may  not  influence  a  potential murderer. Murder  may be unpremeditated, under the stress of some disturbing  emotion or  it may  be  premeditated  after planning and  deliberation. Where the murder is premeditated any thought  of possibility  of  punishment  is  blurred  by emotion and  the penalty of death can no more deter than any other penalty.  Where murder  is premeditated  the  offender disregards the risk of punishment because he thinks there is no  chance  of  detection.  What  weighs  with  him  is  the uncertainty of  detection and  consequent punishment  rather than the  nature of  the punishment. The Advisory Council on the Treatment  of Offenders  appointed by  the Government of Great Britain  stated in  their  report  in  1960  "We  were impressed by  the argument  that the  greatest deterrent  to crime is  not the  fear of  punishment, but the certainty of detection".      Prof. Hart  countered  Stephen’s  argument  with  these observations: ’This  (Stephen’s) estimate  of the  paramount place in  human  motivation  of  the  fear  of  death  reads impressively but  surely contains a suggestio falsi and once this is  detected its  congency as  an argument in favour of the death penalty for murder vanishes for there is really no parallel between  the situation of a convicted murderer over

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the alternative  of life  imprisonment in  the shadow of the gallows and  the situation of the murderer contemplating his crime. The  certainty of  death is  one thing,  perhaps  for normal people  nothing can  be compared  with  it.  But  the existence of  the  death  penalty  does  not  mean  for  the murderer certainty  of death  now. It  means not  very  high probability of  death  in  the  future.  And,  futurity  and uncertainty, the  hope of  an escape, rational or irrational fastly  diminishes   the  difference   between   death   and imprisonment as  deterrent, and  may diminish  to  vanishing point.. The way in which the convicted 363 murderer may  view the  immediate prospect  of  the  gallows after he  has been caught must be a poor guide to the effect of  this   prospect  upon   him  when  he  is  contemplating committing his crime".      A hundred  and fifty  years ago a study was made by the Joint Select  Committee appointed by the General Assembly of Connecticut  and   they  reported  "Your  Committee  do  not hesitate to  express their  firm belief  that a well devised system  of   imprisonment,  one   which  should  render  the punishment certain and perpetual would be far more effectual to restrain from crime than punishment of death".      One of the most comprehensive enquiries ever undertaken on the  subject was  that made  by the  Royal Commission  on Capital Punishment. The Commission visited several countries of Europe and the United States, addressed questionnaires to many other  countries in  search of information and examined celebrated experts and jurists. The Commission’s conclusions are of  significance. They said: "There is no clear evidence in any of the figures we have examined that the abolition of Capital Punishment  has led  to an  increase in the homicide rate, or that its reintroduction to a fall.. prima facie the penalty of  death is  likely to  have a stronger effect as a deterrent to  normal human  beings than  any other  form  of punishment and  there is some evidence (though no convincing statistical evidence)  that this  is in  fact  so.  But  its effect does  not operate  universally or uniformly and there are many  offenders on  whom it  is limited and may often be negligible.  It   is  accordingly  important  to  view  this question in  just perspective and not to base a penal policy in relation  to  murder  on  exaggerated  estimates  of  the uniquely deterrent force of the death penalty".      Prof. Thorsten  Sellin who  made a  serious and through study of  the entire  subject in the United States on behalf of the  American Law  Institute stated  his conclusion: "Any one who carefully examines the above data is bound to arrive at the  conclusion that  the death  penalty, as  we use  it, exercises no  influence on the extent or fluctuating rate of capital crime. It has failed as a deterrent".      In 1962  statistics were  compiled  and  a  report  was prepared at  the instance of the United Nations Economic and Social Council  on the  question of  Capital Punishment, the laws and  practices relating  thereto  and  the  effects  of capital punishment  and the abolition thereof on the rate of criminality. According  to the  report all  the  information available appeared  to confirm  that neither total abolition of the  death penalty nor its partial abolition in regard to certain crimes only had 364 been followed  by any notable rise in the incidence of crime which was previously punishable with death.      Late Prime Minister Bhandarnaike of Sri Lanka suspended the death  penalty in  1956.  A  Commission  of  Inquiry  on Capital Punishment  was appointed  and it  reported "If  the

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experience of  the many  countries which  have suspended  or abolished capital  punishment is taken into account there is in our  view, cogent  evidence of  the unlikelihood  of this ’hidden protection’..  It is,  therefore, our  view that the statistics of  homicide in Ceylon when related to the social changes since  the suspension of the death penalty in Ceylon and when  related to  the experience of other countries tend to disprove  the assumption of the uniquely deterrent effect of the  death penalty,  and that in deciding on the question of reintroduction  or abolition  of the  capital  punishment reintroduction cannot  be justified  on the argument that it is a  more effective deterrent to potential killers than the alternative of  protracted imprisonment".  It  is  a  tragic irony that  Prime Minister  Bhandarnaike who  suspended  the Capital Punishment  in Ceylon  was murdered by a fanatic and in the  panic that  ensued death penalty was reintroduced in Ceylon.      In the  United States  of America  several studies have been made  but ’the  results simply have been inconclusive’. The majority  Judges of  the United States Supreme Court who upheld the  constitutionality of  the death  penalty in  the State of  Georgia in  Gregg v.  Georgia(1) were compelled to observe "Although some of the studies suggest that the death penalty  may   not  function   as  a  significantly  greater deterrent than  lesser penalties,  there  is  no  convincing empirical evidence supporting or refuting this view". In the same case the minority Judges Brennan, J., and Marshall, J., were convinced that ’capital punishment was not necessary as a deterrent to crime in our society’.      In India no systematic study of the problem whether the death penalty  is a  greater deterrent  to murder  than  the penalty of  life imprisonment has yet been undertaken. A few years ago  I made  a little  research into  the  matter  and studied the  statistics relating to capital crime in several districts of  Andhra  Pradesh  from  1935  to  1970.(2)  The pattern was  most eratic  but it can be boldly asserted that the figures  do not  justify a  conclusion  that  the  death penalty has  been a deterrent, but, then, the figures do not also lead  inevitably  to  the  conclusion  that  the  death penalty has  not been  deterrent. One  of  the  complicating factors is the discretion given to Judges to inflict 365 death penalty  or imprisonment  for life  (about which  more later) which  destroys the  utility of  any study  based  on statistics. The  most reasonable conclusion is that there is no positive  indication that  the  death  penalty  has  been deterrent. In other words, the efficacy of the death penalty as a deterrent is unproven.      "The  death  penalty,  rather  than  deterring  murder, actually  deters   the  proper  administration  of  criminal justice".(1)   There    is   the   absolute   finality   and irrevocability of the death penalty. Human justice can never be infallible.  The most  conscientious judge  is  no  proof against sad  mistakes. Every  criminal lawyer  of experience will admit that cases are not unknown where innocent persons have been  hanged in India and elsewhere. And, it is not the only way  the death penalty strikes at the administration of criminal justice.  Some Judges and Juries have an abhorrence of the  death penalty  that they  would rather find a guilty person not  guilty than  send even  a guilty  person to  the gallows. The  refusal of Juries to convict persons of murder because of  the death  penalty is  a well  known  phenomenon throughout the  world. A perusal of some of the judgments of the Superior  Courts in India dealing with cases where Trial Courts have  imposed sentences  of death  reveals  the  same

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reluctance to  convict because the result would otherwise be to confirm  the sentence  of death.  Thus a guilty person is prevented from  conviction by  a possibility  that  a  death penalty may otherwise be the result.      That is  not all. There is yet a more ’grievous injury’ which the  death penalty  inflicts on  the administration of Criminal Justice.  It rejects reformation and rehabilitation of offenders  as among  the  most  important  objectives  of Criminal  Justice,   though  the  conscience  of  the  World Community speaking  through the voices of the Legislature of several countries  of the world has accepted reformation and rehabilitation as  among  the  basic  purposes  of  Criminal Justice. Death  penalty is the brooding giant in the path of reform and  treatment of  Crime and  Criminals,  "inevitably sabotaging  any   social  or   institutional  programme   to reformation’. It is the ’fifth column’ in the administration of criminal justice.      There is  also the  compelling class  complexion of the death penalty.  A tragic  by product  of social and economic deprivation is  that the "have-nots" in every society always have been  subject to  greater pressure to commit crimes and to  fewer   constraints  than  their  more  affluent  fellow citizens. So,  the burden  of capital  punishment falls more frequently upon  the  ignorant,  the  impoverished  and  the underpriviledged. In  the  words  of  Marshall,  J.,  "Their impotence leaves them 366 victims of a sanction that the welthier, better represented, just-as guilty  person can  escape. So  long as  the capital sanction is  used only against the forlorn, easily forgotten members of  society, legislators are content to maintain the status-quo  because  change  would  draw  attention  to  the problem and  concern might develop. Ignorance is perpetuated and apathy  soon  becomes  its  mate  and  we  have  today’s situation". As  a matter  of historical  interest it  may be mentioned here  that when  in 1956,  in Great  Britain,  the House of  Commons adopted  a  resolution  "That  this  House believes that the death penalty for murder no longer accords with the needs or the true interests of a civilised society, and calls on Her Majesty’s Government to introduce forthwith legislation for  its abolition  or for its suspension for an experimental period",  and the  death penalty Abolition Bill was introduced,  ’from the  hills  and  forests  of  darkest Britain they  came:  the  halt,  the  lame,  the  deaf,  the obscrue, the  senile and  the forgotten-the hereditary peers of England,  united in  their  determination  to  use  their medieval powers  to retain  a medieval  institution",(1) and the bill  was torpedoed  by  the  House  of  Lords.  Capital Punishment was however abolished in Great Britain in 1966.      There is finally the question whether the death penalty conforms to the current standards of ’decency’. Can there be any higher  basic human right than the right to life and can anything be more offensive to human dignity than a violation of that  right by  the  infliction  of  the  death  penalty. Brennan, J., observed in Furman v. Georgia(2) "In comparison to   all    other   punishments   today..   the   deliberate extinguishment of  human  life  by  the  State  is  uniquely degrading to  human dignity..  death for  whatever crime and under all  circumstances is truly an awesome punishment. The calculated killing  of a  human being by the State involves, by its  very nature,  a  denial  of  the  executed  person’s humanity.. as  executed person  has indeed lost the right to have rights".  Senor Tejera  of Uruguay in the debate in the United Nations  said "A  death penalty  is an anachronism in the twentieth  Century and  it is significant that no one in

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the committee  has defended it. It is the duty of the United Nations to  promote progress  and to  protect man  from  the prejudices and barbarity surviving from the past".      In a  large number  of countries in the world where the murder rate  is higher  than in India, the death penalty has been  abolished.   In  most  Latin  American  countries,  in Argentina, Brazil, Columbia, Costa 367 Rica, Ecuador,  Maxico, Panama, Peru and Uruguas, Venezuala, in  European   countries,  in   Austria,  Belgium,  Denmark, Germany,   Italy,    Netherlands,   Norway,    Sweden,   and Switzerland, in  Iceland,  in  Israel,  in  many  Australian States and  in many  of the  States in  the United States of America, death sentence has been abolished.      It is  in the  light of  the right  to life  as a basic concept of  human dignity,  in the  context of  the unproven efficacy of  the death  penalty as  a deterrent  and in  the background of  modern theories  of  criminology  based  upon progress in  the fields of science, medicine, psychiatry and sociology and  in the  setting of  the march of the movement for abolition  of Capital  Punishment, that  Judges in India are required to decide which sentence to impose in a case of murder, death or imprisonment for life?      Judges in India have the discretion to impose or not to impose the  death penalty.  It is  one of  the great burdens which Judges in this country have to carry. In the past, the reasons which  weighed in  the matter  of  awarding  or  not awarding the  sentence of  death varied widely and there was certainly room  for complaint  that  there  was  an  unequal application of  the law  in the  matter of imposition of the sentence of death. The varying outlook on the part of Judges was well brought out a few years ago by two decisions of the Andhra  Pradesh   High  Court.  In  the  first  case,  while confirming the conviction of certain "Naxalites" for murder, the judges  set aside the sentence of death and awarded life imprisonment instead.  That  the  murder  was  not  for  any personal motive but was in pursuit of some mistaken ideology was  the   reason  which   weighed  with   the  judges   for substituting the  sentence  of  life  imprisonment  for  the sentence of  death.  Within  a  few  months  this  view  was subjected to  severe criticism  by two other Judges, who, in the second  case confirmed  the sentence of death. Realising that  discretion,   even  judicial,   must   proceed   along perceptive lines,  but, conscious,  all the  same, that such discretion cannot be reduced to formulae or put into pigeon- holes, this  Court has  been at  great pains eversince Ediga Annamma to  point the  path along  which to  proceed. In the latest pronouncement  of this  Court in  Rajendra Prasad  v. State of  Uttar Pradesh  (supra) several relevant principles have been  enunciated to guide the exercise of discretion in making the  choice between  the penalties of death and life- imprisonment. I express my agreement with the elucidation of the principles in Rajendra Prasad v. State of Uttar Pradesh. (supra).      Section 302 Indian Penal Code prescribes death or life- imprisonment as  the penalty  for murder. While so, the Code of  Criminal   Procedure  instructs  the  Court  as  to  its application. The changes which 368 the Code has undergone in the last 25 years clearly indicate that   Parliament    is   taking    note   of   contemporary criminological thought  and movement. Prior to 1955, Section 367(5) of  the Code of Criminal Procedure 1898 insisted upon the Court  stating its  reasons if the sentence of death was not imposed  in a case of murder. The result was that it was

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thought that  in the  absence of  extenuating circumstances, which were  to be  stated by the Court, the ordinary penalty for murder  was death.  In 1955,  sub-section (5) of Section 367 was  deleted and  the deletion  was interpreted,  at any rate by  some Courts,  to mean  that the  sentence  of  life imprisonment was  the normal  sentence for  murder  and  the sentence of  death could  be  imposed  only  if  there  were aggravating circumstances. In the Code of Criminal Procedure of 1973, there is a further swing towards life imprisonment. Section 354(3) of the new Code now provides:           "When the  conviction is for an offence punishable      with death or, in the alternative 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." So, the  discretion to impose the sentence of death or life- imprisonment is  not so  wide, after all. Section 354(3) has narrowed the  discretion Death  Sentence is ordinarily ruled out and  can only  be imposed  for ’Special reasons’, Judges are left with the task of discovering ’Special reasons’.      Let us  first examine if the Code of Criminal Procedure gives  any   clue  leading  to  the  discovery  of  ’Special reasons’.      Apart from Section 354(3) there is another provision in the Code which also uses the significant expression ’special reasons’. It  is Section  361. Section  360 of the 1973 code re-enacts, in  substance, Section  562 of  the 1898 Code and provides for  the release  on probation  of good  conduct or after admonition  any person  not under  twenty one years of age who is convicted of an offence punishable with fine only or with  imprisonment for  a term of seven years or less, or any person under twenty one years of age or any women who is convicted  of  an  offence  not  punishable  with  death  or imprisonment of  life, if  no  previous  offence  is  proved against the offender, and if it appears to the Court, having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of  good conduct or after admonition. If the Court refrains from dealing 369 with an  offender under  Section 360 or under the provisions of the  Probation of Offenders Act, or any other law for the treatment,   training,   or   rehabilitation   of   youthful offenders, where  the Court could have done so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the  Court  to  record  in  its  judgment  the  ’special reasons’ for  not doing  so. Section  361 thus  casts a duty upon the  Court to  apply  the  provisions  of  Section  360 wherever it  is possible  to do  so and,  to state  "special reasons" if  it does  not do  so. In  the context of Section 360, the  "special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform  and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the  offender and  the circumstances in which the offence was committed.  This is  some indication  by the Legislature that reformation  and rehabilitation  of offenders,  and not mere deterrence,  are now  among the foremost objects of the administration of  criminal Justice  in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same  time and  they are part of the emerging picture of acceptance by  the Indian  Parliament of  the new  trends in criminilogy. We  will not,  therefore, be  wrong in assuming

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that the personality of the offender as revealed by his age, character,  antecedents  and  other  circumstances  and  the tractability of the offender to reform must necessarily play the most  prominent role  in determining  the sentence to be awarded. Special  reasons must  have some  relation to these factors.      Criminal justice  is not  a computer  machine. It deals with complex  human problems  and diverse  human beings.  It deals with  persons who  are otherwise  like the rest of us, who work  and play,  who laugh and mourn, who love and hate, who yearn  for affection  and approval, as all of us do, who think, learn  and forget.  Like the  rest of us they too are the creatures  of circumstance.  Heredity, environment, home neighborhood, upbringing,  school, friends, associates, even casual  acquaintenances,   the   books   that   one   reads, newspapers, radio  and TV,  the economics  of the household, the  opportunities   provided  by   circumstances  and   the calamities resulting  thereform, the  success and failure of one’s undertakings,  the affairs of the heart, ambitions and frustrations, the  ideas and  ideologies of  the time, these and several  other ordinary  and extra-ordinary incidents of life contribute  to a person’s personality and influence his conduct. Differently  shaped and  differently  circumstanced individuals react  differently in  given situations. A Judge has to  balance the  personality of  the offender  with  the circumstance the situations and the reactions and choose the appropriate 370 sentence to  be imposed. A judge must try to answer a myried questions  such   as  was   the  offence  committed  without premeditation or  was it  after due  deliberation ? What was the motive  for the  crime ?  Was it  for gain  ? Was it the outcome of  a village  feud ?  Was it the result of a petty, drunken, street  brawl, or  a domestic  bickering between  a hapless husband  and a  helpless wife ? Was it due to sexual jealousy ?  Was the  murder  committed  under  some  stress, emotional or  otherwise ?  What is  the  background  of  the offender ?  What is  his social and economic status? What is the level  of his  education or intelligence? Do his actions betray  a  particularly  callous  indifference  towards  the welfare of  society or,  on the  other hand,  do they show a great concern  for humanity and are in fact inspired by such concern   ?    Is   the    offender   so   perpetually   and constitutionally at  war with  society that there is no hope of ever  reclaiming him  from being a menace to society ? Or is he  a person  who is  patently amenable to reform ? Well, may one  exclaim with  Prof. Vrij "What audacity is involved in these  three tasks:  to interpret  life, explain  an act, predict the latest inclination of a human mind."      ’Special reasons’,  we may,  therefore say, are reasons which are  special with  reference  to  the  offender,  with reference to  constitutional and  legislative directives and with reference  to the  times, that  is, with  reference  to contemporary  ideas   in  the   fields  of  Criminology  and connected sciences.  Special reasons  are those  which  lead inevitably to  the conclusion  that the  offender is  beyond redemption,  having   due  regard  to  his  personality  and proclivity, to  the legislative policy of reformation of the offender  and  to  the  advances  made  in  the  methods  of treatment etc.  I will not attempt to catalogue and ’Special reasons’. I  have said  enough and  perhaps more than what I intended, to  indicate what  according to  me should  be the approach to  the question.  Whatever I  have said  is but to supplement what  my brother Krishna Iyer has already said in Rajendra Prasad v. State of U.P.(1)

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    Coming to  the case  before us,  our  brothers  Jaswant Singh and  Kailasam, JJ.,  ordered ’notice  confined to  the question of  sentence only.’  At the last hearing we granted special leave  to appeal  on the  question of  sentence. The appellant was  convicted by  the learned Additional Sessions Judge, Alipore,  for the  murder of his son and sentenced to death. The  High Court  of Calcutta confirmed the conviction and sentence. The reason given by the learned Sessions Judge for giving  the sentence  of death  was that  the murder was ’cruel and 371 brutal’ and  that the facts show the ’grim determination’ of the accused to kill the deceased. The Sessions Judge made no reference to the motive of the accused for the commission of the murder.  The High  Court while  confirming the  sentence observed that  the accused had previously murdered his wife, suspecting her  infidelity and  suspecting that the deceased in the  present case  was not his own son, that the sentence of imrisonment imposed on him for the murder of his wife had no sobering  affect and  that he  had murdered  his own  son without  any  mercy  or  remorse  and  that  he,  therefore, deserved no  mercy. We do not think that either the Sessions Judge or  the High  Court made  the right  approach  to  the question. The  Sessions Judge  was  wrong  in  imposing  the sentence of death without even a reference to the reason why the appellant  committed the  murder. The observation of the High Court  that the  appellant deserved no mercy because he showed no  mercy smacks  very much  of punishment  by way of retribution. We have examined the facts of the case. We find some  vague  evidence  to  the  effect  that  the  appellant suspected that  the deceased was not his own son and that he used to  get angry  with the  deceased for  not obeying him. There is  also vague  evidence that he had killed the mother of the  deceased and  had suffered  sentence of imprisonment for that  offence. From the vague evidence that is available we gather  that the appellant was a moody person who had for years been  brooding over  the suspected  infidelity of  his wife and the injustice of having a son foisted on him. We do not think  that the  mere use  of adjectives like ’cruel and brutal’ supplies the special reasons contemplated by Section 354(3)  Criminal   Procedure  Code.  In  the  light  of  the principles  enunciated   in  Rajendra  Prasad  v.  State  of U.P.,(1) and  in the  light of what we have said earlier, we do not think that there are any ’special reasons’ justifying the imposition  of the  death penalty.  We accordingly allow the appeal  as regards  sentence, set  aside the sentence of death  and   impose  in  its  place  the  sentence  of  life imprisonment.      KRISHNA IYER,  J.-I have  had the  advantage of reading the Judgment  of my  learned brother, Shri Justice Chinnappa Reddy. I  wholly agree  with his  reasoning and  conclusion. Indeed, the  ratio of Rajendra Prasad etc. v. State of Uttar Pradesh etc.(1),  if applied to the present case, as it must be, leads  to the  conclusion that  death sentence cannot be awarded in  the circumstances  of the  present case. Counsel for the State, if I recollect aright, did state that in view of the criteria laid 372 down in  Rajendra Prasad’s case the State did not propose to file any  written submissions  against commutation  to  life imprisonment. I  concur with  my learned  brother and direct that the  appeal, confined  to sentence,  be allowed and the alternative of life imprisonment imposed. V.D.K.                                        Appeal allowed 373

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