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PETITIONER: EDIGA ANAMMA

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT11/02/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  799            1974 SCR  (3) 329  1974 SCC  (4) 443  CITATOR INFO :  F          1974 SC1039  (12)  F          1974 SC2281  (6)  RF         1975 SC 573  (9)  F          1976 SC 653  (13)  F          1976 SC2071  (4,5)  RF         1976 SC2386  (4)  RF         1977 SC 949  (18,19)  R          1977 SC1747  (6)  RF         1977 SC1812  (2)  E          1979 SC 916  (6,45,86,198)  R          1979 SC1384  (10,12)  RF         1980 SC 898  (81,82,197,198)  MV         1982 SC1325  (38,69,71)  RF         1983 SC 361  ((2)4,10,21)  D          1983 SC 465  (9)  RF         1985 SC 231  (2)

ACT: Criminal    Law--Practice    and    Procedure--Offence    of murder--Circumstances justifying lesser sentence.

HEADNOTE: The  appellant,  a rustic young woman, flogged  out  of  her husband’s  house by her father-in-law, was living  with  her parents with her only child.  She committed a  premeditated, cleverly planned murder of another young woman and her child because  of rivalry between the appellant and  the  murdered woman for the affections of an illicit lover.  The  Sessions court  awarded  the  death  sentence  and  the  High   Court confirmed. In appeal to this Court. HELD  :  The  death  sentence must  be  dissolved  and  life sentence substituted. (i)  Modern  penology regards crime and criminal as  equally material  when  the  right sentence has  to  be  picked  out although   in  our  processual  system  there   is   neither comprehensive   provision   nor   adequate   machinery   for collection  and presentation of social and personal data  of the  culprit  to  the  extent required  in  the  verdict  on sentence.   However, in the Criminal Procedure  Bill,  1973, Parliament has wisely written into the law a post conviction stage  when  the  judges  shall "hear  the  accused  on  the

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question  of  sentence  and  then  pass  sentenced  on   him according to law." [334 C] The unmistakable shift in legislative emphasis is that  life imprisonment for murder is the rule and capital sentence the exception  to be resorted to for reasons to be stated.   The disturbed  conscience of the state on the vexed question  of legal threat to life by way of death sentence has sought  to express  itself legislatively, the stream of tendency  being towards  cautious  partial abolition and  the  retreat  from total retention. [336 H] Code of Criminal Procedure Section 367(5) as amended by  Act 26 of 1955; Criminal Procedure Bill, 1973, Sections 235, 238 and  354(3);     Indian Penal Code (Amendment)  Bill,  1972, Section 122, referred to.      (ii)  The case on hand has to be disposed of under  the present Code and the Court has to fall back upon the  method of  judicial bunch in imposing or avoiding capital  sentence aided  by  such circumstances as are present on  the  record introduced for the purpose of proving guilt. [334 D]      (iii)  In  the present case the criminal’s  social  and personal factors, her feminity and youth, her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy-these individually inconclusive and cumulatively marginal  facts and circumstances tend towards  awarding  of life imprisonment. [339 B--C]      Further,  the  Sessions  Judge  pronounced  the   death penalty on December, 31, 1971 and the appeal is being  heard in  February  1974. This prolonged  agony  has  ameliorative impact according to the rulings of this Court. Piara Dusadh v. Emperor A.I.R. 1944 F.C.I.; N. Sreeramula v. State of Andhra Pradesh, 1973 C.L.J. 1773; State of Bihar v. Pashupati Singh, A.I.R. 1973 S.C. 2699. referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67  of 1973.      Appeal  by  Special Leave from the Judgment  and  Order dated the 24th March, 1972 of the Andhra Pradesh High  Court in  Criminal Appeal No. 12 of 1972 and Referred Trial No.  1 of 1972. 330 R.   P. Kathuria, amicus curiae for the appellant. P.   Ram Reddy and P. P. Rao for the respondent. The Judgment of the Court was delivered by KRISHNA  IYER,  J.  In  a rural  region  of  Andhra  Pradesh Freudian fury or explosion of sex jealousy expressed  itself in  a gruesome murder of a young woman and her tender  child by the accused, :a young woman, with an only child ten years old,  all, because notwithstanding both being married,  they had invested amorous affections in a middle-aged  libertine. P.W.  16,  conveniently a widower.  It is an  admitted  fact that  the  accused, although married,  was  keeping  illicit relations with P.W. 16, a shepherd, but she discovered  that lately  her  paramour  was on  flirting  contacts  with  the deceased.   This  knowledge  angered her so  much  that  she extinguished  the life of her rival on November 4,  1971  in the  afternoon  in  a  jungle,  manipulating  her  murderous venture so cleverly that for a time people thought that  she was the murdered and searched for her body.  Closer  enquiry revealed  that the victim was Ansuya and the other  innocent one her baby less than two years old. Shri  Kathuria, appearing as amicus curiae, has presented  a painstakingly meticulous argument on behalf of the prisoner,

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who has been condemned to death by the courts below.  It  is but  meet  that  we  appreciate  the  industrious   advocacy enthusiastically made by this young advocate. By  sundown  on November 4, 1971 a cadaver was  found  in  a field outside the village of Konapur, Medak District, Andhra Pradesh.   The deceased was a damsel who was first  mistaken to  be  the accused because her face had been burnt  out  of recognition  and  on  her  body  was  found  clothing  which belonged  to  the accused a deviced to,  as  later  evidence discloses, by the accused to throw enquirers off ,the scent. On  November  8,  1971 the dead body  of  a  baby,  Nirmala. daughter  of Ansuya, the deceased, was recovered,  from  the sand  bed  ,of  a stream  near  the  field.   Investigations disclosed  that Anamma. the accused, was the perpetrator  of this fiendish crime.  She was duly prosecuted, convicted and sentenced  to  death  for the offence  of  murder  and  life imprisonment for secreting evidence of the crime, ’under  s. 20 1, 1. P. C. An appeal by the accused and a referred trial under  the  Code  resulted  in a Bench  of  the  High  Court affirming  the  guilt and upholding the  sentence.   A  jail appeal has come before us, argued by Shri Kathuria as amicus curiae. The  people involved are more or less primitive rustics  and sex  inhibitions do not appear to have  interdicted  private philandering.   The prisoner had been married to P.W.  7  of Ankenpally,  three  miles  distant from  Konapur  where  her parents  resided.  Carnal knowledge with P.W.  16  developed even when she was in her husband’s house and she  manifested her  passion  by stealing gold rings from the house  of  one Rachappa  to  make it over to P.W. 16 as a  memento  of  her illicit  love, Indeed, this little stealing, induced by  her improper 331 relations  with  P.  W. 16, was  discovered.   She  suffered flagellation  from her father-in-law for this act,  and  her father,  P.W. 2, removed her to his own house as  a  sequel. The  setting  of  Konapur did not stand in the  way  of  her continued  intimacy with P.W. 16, who responded by  shifting to this village himself.  The  deceased, Ansuya, was the wife of P.W. 12 who was,  as ill-luck  would  have  it, the neighbour  of  the  accused’s family.   Opportunity  tempted and Ansuya  also  established erotic contact with that lascivious, P.W. 16.  The prisoner, in due course, came to know about the shifting of affections by  her paramour who tried to bluff her in vain.   Fired  by jealously  the prisoner fixed her mind upon liquidating  her rival. On  November 4, 1971 at about 3 p.m. the ill-starred  Ansuya had  left  for  the fields taking the baby  with  her.   The accused tempted and shadowed her, with some clothes from her house, to be washed in the  village stream.  P. W. 15, P. W. 4 and P. W. 13 have given testimony which, if believed, will show that the accused and the deceased were seen together in the  fatal  field at about 5 p.m., the day  the  mother  and child  died.   It  is said that the accused  had  removed  a chisel from her house as she proceeded to the field and used it  to  lethal  purpose.  The medical  evidence  shows  that Ansuya  and  Nirmala  were stabbed to death  with  a  chisel identified  by  the accused’s own father, P.W.  2,  and  the blacksmith who made it, P.W. 15.  Apparently overborne  with uncontrollable  hatred  for  the  woman  who  hijacked   her paramour’s sexual affection, the accused had planned to kill with  cunning.   The  manner of stabbing to  death  was  bad enough;  it was more brutal for her to have  disfigured  the face  of the victim which was found burnt.  With a  view  to

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mislead  and thereby evade easy detection she  removed  from the  deceased’s  body  her clothes and  clothed  it  with  a language  belonging  to herself.  She  removed  the  child’s body,  wrapped  it in a piece of cloth brought  by  her  and buried  it  beneath  the river sand.   Thereafter  she  made towards the house of P. W. 11, her uncle, told P. W. 16 what she  had done and pressed him to elope with her.  The  sense of  safety  of  P.W.  16 prevailed over  his  urge  for  sex relations  with this girl and so he declined to follow  her. The disparate woman left for her husband’s village, while  a search  for her was being made by P. W. 2, her father.   The dead body in the field was found covered with the  accused’s clothing  and beguiled by this circumstance P.W. 2  reported to  the police Patel, P.W., 5 (Ex.  P 1) that  his  daughter had  been murdered, perhaps by her father-in-law.  Taken  in by  this report, the Patel informed the police and the  Sub- Inspector,  P.W. 26, proceeded to the scene  of  occurrence, held  inquest and sent the body for postmortem  examination. P.W.  22,  the doctor, did the autopsy in the  afternoon  of November 5. 1971 and the body was brought back to Konapur by sundown.   The  Inspector of Police took over  the  investi- gation,  took into custody the clothes" near the  scene  and questioned  a number of persons in the village.  The  tragic body  was being made ready for cremation when the  Patel  of village Ankanpally, P.W. 10, 332 moved   down  to  the  place  with  the  accused,   to   the bewilderment  of the people gathered.  Meanwhile,  P.W.  12, the  husband of Ansuya, finding his wife and child  missing, went  in search of them vain. The tidings came of  the  dead body and the revelation that it was not that of the accused, as originally suspected.  So apprehension turned on the dead body  being that of Ansuya.  They went to the place  but  it was  night and the next morning, i.e., November 6, 1971,  P. W. 12the husband-and P.W. 13-the mother-in-law-examined  the corpse  and to their shock discovered it to be the  body  of Ansuya.  A Panchnama, P-10, was prepared.  P.W. 12  reported to the police officer, P.W. 27 (Ex.  P-2) and investigations revived  in  the  new  direction.  P. W.  27  sent  for  the accused, who wanted to see her son, and they all met at  the police  station.  P.W. 16 turned up at the  police  station, and  breaking down perhaps under the stress of all that  had happened, the accused said that she would confess.  Ex.   P- 7,  the confession, was recorded which led to the  discovery of the child’s body, the bundle containing the burnt clothes and chisel, etc. (Ex.  P-8).  The langha of the accused  was also  recovered (Ex.  P-9).  Post-mortem was done  over  the body  of the child, the accused was arrested and  eventually she  was charged with offences under S. 302 and s. 20 1,  I. P. C of  course, there is no direct evidence in the case but  the prosecution  has placed a clinching wealth of  circumstances and an extra-judicial confession to P.W. 16 to  substantiate its version.  It is trite law that Ex.  P-7, the  confession made while in police custody, is inadmissible except to  the narrow extent salvaged by discoveries made in terms of S. 27 of  the  Evidence  Act.  We are left,  therefore,  with  the confessional statement made to P.W. 16 orally.  If it can be invested with veracity the guilt of the accused is virtually made out.  But it is common-place law-and vehemently  urged- that  a retracted confession made orally to  a  near-villain like P.W. 16, who had reason to play for safety, was  liable to be rejected without a second look at the statement.   The High  Court-and the Sessions Court-have considered the  many weaknesses relating to this confession.  Those defects  have

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been pointed as deadly by counsel for the appellant.  We are satisfied that the credence given to it by the courts  below cannot   be  treated  as  strange  or  otherwise   seriously erroneous.  Certainly he had no ill-feeling for the  accused and  nothing  palpably improbable has been made out  in  the spontaneous  unburdening  of  her bosom by  the  accused  in distress, hastening to her paramour after the murder in  the hope  that she would now vanish with her lover, and  telling him  the  murderous truth.  Marginal mistrust  generated  by counsel’s argument is inadequate to reject the testimony  of P.W. 16.  However, there are circumstances attaching to  his whereabouts  and  the slight delay in his statement  to  the police and the dubiety of his character which permitted  his openly  wearing  a stolen gold ring  received  from  another man’s  wife.   It is but fair, therefore, for the  Court  to search  for convincing corroboration. The  precedents  cited before  us by counsel for the appellant take us  no  further than  the  need to ask for satisfactory reinforcement  of  a retracted   confession  not  too  good  to  be  treated   as sufficient in itself to fasten the guilt. 333 We  are,  therefore, thrown to the task  of  evaluating  the circumstances  and the extent to which they buttress up  the self-incrimination content in the confession- Motive by itself is not much, particularly in the absence of direct  evidence,  but in the company of  other  factors  it plays  a probative role.  The discovery of the child’s  dead body  and the clothes belonging to the accused, as  well  as the  chisel  of P. W. 2, the father,  which  was  admittedly missing,  are  a  clear pointer to the  guilt,  although  by themselves do not cover the entire distance from "may be" to "must  be"  in the proof of guilt.  The noose  of  guilt  is tightened by the testimony of P.Ws. 4, 13 and 15.  P.W.  13, the mother-in-law of Ansuya, deposed that the deceased,  her daughter-in-law,  went  out  to fetch  vegetables  from  the fields and the accused was seen following her with a  bundle of  clothes  to  wash  them in the stream.   P.  W.  15,  an apparently  disinterested  man, speaks of  having  seen  the accused  at Khallam at about 5 p.m. near where the  deceased also  was.   Although  the trial court  did  not  choose  to believe  him,  the appellate court thought that it  was  not risky  to  rely on his testimony.  P. W. 4  also  swore.  to having  seen the accused at Khallam at about sundown on  the relevant  date.  This shepherd also states that he  saw  the deceased collecting firewood near about there and heard  the cries  of a girl.  There has been a detailed  discussion  of the  evidence  of  these witnesses by  the  High  Court  and notwithstanding   the  attempt  elaborately  made  by   Shri Kathuria,  the  evidence  of these witnesses  has  not  been fractured or rendered incredible. The fact that the accused was seen last with the deceased in a place where and at a time when few others were around, the fact  that the deceased’s body was covered cleverly  by  the clothes  of  the accused-foolishly, as we now see  by  hind- sight-the discovery of telltale clothes on the baby’s  body, the lethal chisel, her blood-stained skirt concealed in  the bush, all strongly probabilise the truth of the  confession. In a well-considered judgment the learned Judges of the High Court have covered all the relevant evidence and reached the unhesitating  conclusion that the accused had done to  death Ansuya  and Nirmala.  Shri Kathuria’s persistent  effort  to attack  almost  every  part  of  the  prosecution   evidence testifies  to his industry, which we appreciate, but  hardly carries conviction.  All the circumstances converge  towards the  focal  point  of  guilt of  the  accused,  her  fatuous

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assumption that others would be deceived along a wrong trail has  failed,  and the impending cremation which  would  have blotted out a vital evidence was averted and truth has  come out.  We have hardly ’any doubt that the conviction deserves to be confirmed. Counsel  for the State correctly drew our attention to  ’the great  limitations  on  the exercise  of  the  extraordinary jurisdiction   under   art.   136   of   the   Constitution, particularly,  when dealing with the concurrent findings  of fact.   He  is right in contending that we,  should  dismiss arguments which nibble at the credibility of witnesses.  But finding  the  case  hanging on  a  retracted  extra-judicial confession from 9--L954 Sup CI/74 334 a person who does not necessarily inspire great  confidence, corroborated only by circumstantial evidence, we thought  it proper  to make a conscientious search to see, if truth  had been  reached  and miscarriage of justice averted.   We  are satisfied,  as already stated, that the accused’s guilt,  to the  extent human instruments can apprehend, has  been  made out. Guilt  once established, the punitive dilemma  begins.   The choice between death penalty and life term has to be made in a  situation which is not altogether  satisfactory.   Modern penology regards crime and criminal as equally material when the  right  sentence has to be picked out, although  in  our processual  system there is neither comprehensive  provision nor  adequate machinery for collection and  presentation  of the  social and personal data of the culprit to  the  extent required  in  the  verdict on  sentence.   However,  in  the Criminal  Procedure  Code, 1973, about to come  into  force, Parliament has wisely written into the law a post-conviction stage  when  the  Judges  shall "hear  the  accused  on  the question of sentence and then pass sentence on him according to law." (S. 235 & s. 248). The  case  on hand has to be disposed of under  the  present Code  and we have to fall back upon the method  of  judicial hunch  in  imposing or avoiding capital sentence,  aided  by such  circumstances as are present on the record  introduced for  the  purpose of proving guilt.  We are  aware  that  in Jagmohan  Singh v. State of U. P.(1), there was an  argument about  the  absence of procedure laid down by  the  law  for determining whether the sentence- of death or something less is appropriate in the case.  The Court viewed this Criticism from the constitutional angle and observed :               "The Court is primarily concerned with all the               facts and circumstances in so far as they  are               relevant to the crime and how it was committed               and since at the end of the trial he is liable               to   be   sentenced,   all   the   facts   and               circumstances  bearing  upon  the  crime   are               legitimately  brought  to the  notice  of  the               court. Apart from the cross-examination     of               the  witnesses.  the Criminal  Procedure  Code               requires  that the accused must be  questioned               with  regard  to the  circumstances  appearing               against  him  in  the evidence.   He  is  also               questioned generally on the case and there  is               an  opportunity  for him to  say  whatever  he               wants to say.  He has a right to examine  him-               self  as  a  witness,  thereafter,  and   give               evidence on the material facts.  Again he  and               his  counsel  are at liberty  to  address  the               court not merely on the question of guilt  but

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             also   on  the  question  of   sentence.    In               important  cases like murder the court  always               gives  a chance to the accused to address  the               court on the question of sentence."               "The  sentence follows the conviction, and  it               is true that no formal procedure for producing               evidence with reference               (1) [1973] 1 S. C. C. 20.               335               to the sentence is specifically provided.  The               reason    is   that   relevant    facts    and               circumstances  impinging  on the  ’nature  and               circumstances of the crime are already  before               the court." In  any  scientific  system which turns the  focus,  at  the sentencing  stage,  not  only  on the  crime  but  also  the criminal,  and seeks to personalise the punishment  so  that the  reformatory  component  is as ,much  operative  as  the deterrent  element, it is essential that facts of  a  social and personal nature, sometimes altogether irrelevant if  not injurious  at the stage of fixing the guilt, may have to  be brought to the notice of the Court when the actual  sentence is determined. The  prisoner  is  a young woman of 24 flogged  out  of  her husband’s  house  by  the father-in-law,  living-  with  her parents  with her only child  sex-starved and  single.   The ethos of the rural area where the episode occurred does  not appear  to have been too strict or inhibitive in matters  of sex, for the deceased and the accused were both married  and still philandered out of wedlock with P.W. 16, a middle-aged widower  who  made  no bones  about  playing  the  freelance romancer  simultaneously with them.  Therefore, the  accused incautiously  slipped down into the sex net spread  by  P.W. 16,  and while entangled and infatuated, discovered  in  the deceased  a nascent rival.  With the reckless passion  of  a jealous mistress she planned to liquidate her competitor and crudely performed the double murder, most foul.  Perhaps  it may be a fable extenuation to remember that the accused is a young woman who attended routinely to the chores of domestic drudgery and allowed her flesh to assert itself  salaciously when  invited by uncensured opportunity for lonely  meetings with  P.W. 16.  It may also be worth mentioning that,  apart from  her youth and womanhood, she has a young boy  to  look after.   What  may  perhaps  be  an  extrinsic  factor   but recognised  by  the court as of humane significance  in  the sentencing context is the brooding horror of ’hanging’ which has  been  haunting the prisoner in her condemned  cell  for over  two  years.  The Sessions Judge pronounced  the  death penalty  on  December 31, 1971, and we are now  in  February 1974.    This  prolonged  agony  has   ameliorative   impact according to the rulings of this Court.  The leading case in Piara Dusadh v. Emperor(1) was relied upon by this Court  in N. Sreeramula v. State of Andhra Pradesh(2).  The  following passage from the Federal Court decision is telling :               "In committing the offence the appellant  must               have   been   actuated  by  jealousy   or   by               indignation either of which would tend further               to  disturb the balance of his mind.   He  has               besides  been awaiting the execution  of  this               death sentence for over a year.  We think that               in this case a sentence of transportation  for               life  would  be  more  appropriate  than   the               sentence of death." (1) A. 1. R. [1944] F. C. L (2) (1974) C. L. J. 1775.

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336  The  decision  in  State of  Bihar  v.  Pashupati  Singh(1) strikes  a  similar note.  Although  this  consideration  is vulnerable  to the criticism made by counsel for  the  State that  as  between two capital sentence cases that  which  is delayed in its ultimate disposal by the courts receives  the less  terrible punishment while the other heard  with  quick despatch, for that very reason, fails to relieve the  victim from condemnation to death. In  this unclear situation it is unfortunate that there  are no penological guidelines in the statute for preferring  the lesser   sentence,  it  being  left  to  ad   hoc   forensic impressionism  to  decide for life or for death.   Even  so, such  sentencing  material as we have been able  to  salvage from  the guilt material in the paper book persuades  us  to award  life imprisonment to the prisoner and modify to  that extent the death sentence imposed by the courts below. It  behaves us to indicate why we have chosen  this  course. In the twilight of law in this area, we have been influenced by  the seminal trends present in the  current  sociological thinking  and penal strategy in regard to murder.   We  have also  given  thought to the legal changes wrought  into  the penal code in free India.  We confess to the impact made  on us  by  legislative and judicial approaches  made  in  other countries   although  we  have  warned   ourselves   against transplanting  into  our country  concepts  and  experiences valid in the West. It cannot be emphasised too often that crime and  punishment are functionally related to the society in which they occur, and  Indian conditions and stages of progress must  dominate the exercise of judicial discretion in this case. In  India the subject of capital punishment  has  abortively come   before  Parliament  earlier,  although   our   social scientists  have  not made any sociological  or  statistical study in depth yet.  On the statutory side there has been  a significant change since India became free.  Under  s.367(5) of  the  Criminal  Procedure Code, as it  stood  before  its amendment by Act 26 of 1955, the normal rule was to sentence to  death  a person convicted for murder and to  impose  the lesser  sentence for reasons to be recorded in writing.   By amendment,  this provision was deleted with the result  that the court is now free to award either death sentence or life imprisonment,  unlike formerly when death was the  rule  and life  term the exception, for recorded reasons.  In the  new Criminal  Procedure Code, 1973 a great change has  overtaken the law.  Section 354(3) reads :               "354(3) When the conviction is for an  offence               punishable with death or, in the  alternative,               with imprisonment for life or imprisonment for               a term of years, the judgment shall state  the               reasons for the sentence awarded, and, in  the               case of sentence of death, the special reasons                             for such sentence." The unmistakable shift in legislative emphasis is that  life imprisonment for murder is the rule and capital sentence the exception to be (1)  A. 1. R. 1973 S. C. 2699. 337 resorted  to for reasons to be stated.  In this  context  it may  not  be  out  of  place  to  indicate-not  that  it  is conclusive  since it is now tentative that under the  Indian Penal Code (Amendment) Bill, 1972, s. 302 of the Penal  Code has  been  substituted by a less  harsh  provision  limiting death penalty to a few special cases (vide s. 122 of the new bill).

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It is obvious that the disturbed conscience of the State  on the  vexed question of legal threat to life by way of  death sentence  has  sought to express itself  legislatively,  the stream of tendency being towards cautious, partial abolition and a retreat from total retention. Jagmohan    Singh(1)   has   adjudged    capital    sentence constitutional   and  whatever  our  view  of   the   social invalidity of the death penalty, personal predilections must bow to the law as by this Court declared, adopting the noble words  of  Justice Stanley Mosk of California uttered  in  a death sentence case : "As a judge, I am bound to the law  as I find it to be and not as I fervently wish it to be".  (The Yale  Law Journal, Vol. 82, No. 6, P.1138). Even so, when  a wise discretion vests in the court, what are the  guidelines in  this  life  and  death choice  ?  The  humanism  of  our Constitution,   echoing   the  concern  of   the   Universal Declaration  of Human Rights, is deeply concerned about  the worth  of  the human person.   Ignoring  the  constitutional content of Anderson (2), and Furman(3), the humanist  thrust of  the  Judicial vote against cruel or  unusual  punishment cannot  be  lost on the Indian  judiciary.   The  deterrence strategists argue that social defence is served only by  its retention,-thanks  to the strong association between  murder and capital punishment in the public imagination,-while  the correctional  therapists urge the reform of  even  murderers and not to extinguish them by execution.  History  hopefully reflects  the  march  of  civilization  from  terrorism   to humanism and the geography of death penalty depicts  retreat from  country  after country.  The U.K. and the  U.S.A.  are notable instances.  Among the socialist nations it has  been restricted  to  very aggravated forms of  murder.   The  lex talionis principle of life for life survives in some  States still,  only to highlight that in punitive practice,  as  in other  matters  we do, not live in ’one world’ but  do  move zigzag  forward  to  the view that  the  uniquely  deterrent effect of death penalty is, in part, challenged by  jurists, commissions and statistics.  But as a counterweight we  have what an outstanding justice of the Ontario appeal court said some years ago(4)               "The   irrevocable  character  of  the   death               penalty is a reason why all possible  measures               should be taken against injustice-not for- its                             abolition.  Nowadays, with the advent of  armed               criminals  and  the  substantial  increase  in               armed robberies, criminals of long standing if               arrested,   must   expect   long    sentences.               However, if they run no risk of hanging,  when               found   guilty  of  murder,  they  will   kill               policemen and witnesses with the prospect of a               future no more unhappy, as one of them put it.               than  being fed, lodged, and clothed  for  the               rest of their lives." (1)[1973] 1 S. C. C. 20. (2) 100 California Reporter 152  (3) 408 U. S.-218 (4) Capital Punishment-Thorstn Sellin  P. 83 338 The  final  position,  as we see it,  is  neither  with  the absolute abolitionist nor with the Mosaic retributions.   It is  relativist,  and humanist, conditioned by the  sense  of justice  and prevailing situation of the given society.   In England, men once believed it to be just that a thief should lose  his life (as some Arab Chieftains do to-day)  but  the British  have  gone abolitionist now  without  regrets.   In

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contemporary  India, the via media of legal  deprivation  of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws. While,  deterrence  through threat of death may still  be  a promising  strategy  in some frightful  areas  of  murderous crime,  to  espouse  a monolithic theory  of  its  deterrent efficacy  is unscientific and so we think it right to  shift the emphasis, to accept composite factors of penal  strategy and not to put all the punitive eggs in the ’hanging’ basket but hopefully to try the humane mix. We  assume that a better world is one without legal  knifing of  life,  given  propitious social changes.   Even  so,  to sublimate  savagery  in  individual or  society  is  a  long experiment  in  spiritual  chemistry  where  moral   values, socioeconomic  conditions  and legislative judgment  have  a role.   Judicial activism can only be a signpost, a  weather vane,  no  more.   We  think the  penal  direction  in  this jurisprudential  journey points to life prison normally,  as against  guillotine,  gas chamber,  electric  chair,  firing squad  or hangmen’s rope.  ’Thou shalt not kill’ is  a  slow commandment in law as in life, addressed to citizens as well as  to States, in peace as in war.  We make this  survey  to just  if  your  general preference  where  s.302  keeps  two options open and the question is of great moment. Let  us  crystallise the positive indicators  against  death sentence under Indian Law currently.  Where the murderer  is too  young or too old, the clemency of penal  justice  helps him.  Where the offender suffers from socioeconomic, psychic or  penal  compulsions  insufficient  to  attract  a   legal exception  or  to  downgrade the crime into  a  lesser  one, judicial  commutation is permissible.  Other general  social pressures,  warranting judicial notice, with an  extenuating impact  may,  in special cases, induce the  lesser  penalty. Extraordinary features in the judicial process, such as that the  death  sentence has hung over the head of  the  culprit excruciatingly   long,   may  persuade  the  court   to   be compassionate.   Likewise, if others involved in  the  crime and  similarly  situated have received the benefit  of  life imprisonment  or  if  the  offence  is  only   constructive, being  .under s. 302 read with s. 149, or again the  accused has  acted  suddenly under  another’s  instigation,  without premeditation, perhaps the court may humanely opt for  life, even  like  where a just cause or real suspicion  of  wifely infidelity pushed the criminal into the crime.  On the other hand,  the  weapons used and the manner of  their  use,  the borrandous features of the crime and hapless, helpless state of the victim, and the like, steal the heart of the law  for a  sterner  sentence.   We  cannot  obviously  feed  into  a judicial computer all such situations since they are  astro- logical imponderable in an imperfect and undulating society. A legal 339 policy  on life or death cannot be left for ad hoc  mood  or individual  predilection and so we have sought to  objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.      Here,  the criminal’s social and personal  factors  are less  harsh, her feminity and youth, her unbalanced sex  and expulsion  from the conjugal home and being the mother of  a young  boy-these individually inconclusive and  cumulatively marginal facts and circumstances tend towards award of  life imprisonment.   We  realise the speculative  nature  of  the correlation between crime and punishment in this case, as in

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many  others, and conscious of fallibility dilute the  death penalty.   The larger thought that quick punishment,  though only a life term, is more deterrent than leisurely  judicial death   award  with  liberal  interposition   of   executive clemency,  and that stricter checking on illicit weapons  by the police deters better as social defense against murderous violence   than  a  distant  death  sentence,  is   not   an extraneous.  component  in  a  court  verdict  on  form   of punishment. We have indicated enough to hold that, marginal  vaccination notwithstanding,  the death sentence must be  dissolved  and life  sentence  substituted.  To this extent the  appeal  is allowed, but otherwise the con- viction is confirmed. K.B.N. Appeal allowed in part. 340