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PETITIONER: HARNAM

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT10/10/1975

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR 2071            1976 SCR  (2) 274  1976 SCC  (1) 163  CITATOR INFO :  F          1977 SC1822  (1)  R          1977 SC2094  (2)  RF         1979 SC 916  (105)

ACT:      Penal   Code-Murder-Sentence    to   be   impossed-Life imprisonment-Capital punishment-When could be imposed.

HEADNOTE:      The legislative  history in  regard to  the subject  of capital punishment  shows that  there has been a significant change in  thinking and  approach Since  India became  free. Prior to  the amendment of s. 367(5) of the Code of Criminal Procedure by  Act 26  of 1955, the normal rule was to impose sentence of  death on a person convicted for murder and if a lesser sentence was to be imposed, the Court was required to record reasons  in writing.  But by  Act 26  of  1955,  this provision in  s. 367(5) was omitted with the result that the Court became  free to  award either  death sentence  or life imprisonment, and  no longer was death sentence the rule and life  imprisonment  the  exception.  Then  again  a  further progress was  made in the same direction by s. 354(3) of the Criminal Procedure  Code, 1973.  That section  provides that when the  conviction is for an offence punishable with death or  in   the  alternative  with  imprisonment  for  life  or imprisonment for  a term  of years, the judgment shall 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  the legislative emphasis is that for murder, life imprisonment should be the rule and capital punishment the  exception to be resorted to only for special reasons. It is only where, in view of the peculiar facts and circumstances, there  are special  reasons  that  the  death sentence may  be awarded:  otherwise life  sentence  offence would certinly be "too young." [277G; E, F]      The seminal trends in current sociological thinking and penal strategy  tempered as  they are by humanistic attitude and deep  concern for  the worth  of the human person, frown upon death  penalty  and  regard  it  as  cruel  and  savage punishment to be inflicted only in exceptional cases. [276G]      In the  instant case  the appellant was charged with an offence of  murder by severing the head of the deceased from

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the body  and then  carrying it  away in  a most  brutal and inhuman manner.  The trial court convicted and sentenced him to death.  Both the  conviction and  sentence were upheld by the High Court.      On the question of sentence,      Allowing the appeal to this Court, ^      HELD: The  appellant was just around 16 years of age at the time  when he  committed the  offence and, therefore, he would be entitled to the clemency of penal justice. It would not be  appropriate to  impose the extreme penalty of death. Taking into  account the  current sociological  and juristic thinking as could be seen from the recommendation of the Law Commission which  appears to  have been  incorporated in the Indian  Penal  Code  (Amendment)  Bill  1972,  it  would  be legitimate for  the Court to refuse to impose death sentence on an  accused convicted  of murder, if it finds that at the time of  the commission  of the  offence the  appellant  was under 18  years of  age. A murderer who is below 18 years of age at the time of commission of the offence would certainly be "too young." [277G; E, F]      E. Anamma  v. State of Andhra Pradesh, A.I.R. 1974 S.C. 799, followed. 275

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 277 of 1974.      Appeal by  Special Leave  from the  Judgment and  order dated the  22nd February,  1974 of  the Allahabad High Court Lucknow Bench in Criminal Appeal No. 498 of 1973 and Capital Sentence No. 13 of 1973.      A. N. Mulla and N. S. Das Behal for the appellant.      O. P. Rana for the respondent.      The Judgment of the Court was delivered by      BHAGWATI, J.-This  appeal, by special leave, is limited only to  the question  of sentence.  The appellant  has been sentenced to  death for an offence under s. 302 of the Penal Code. The  question is:  Should the extreme penalty of death be commuted  to one  of life  imprisonment?  To  answer  the question it is necessary to state a few facts.      The appellant  and a few others were tried in the Court of the  Sessions Judge,  Unnao for offences under s. 148 and s. 302  read with  s. 149  of the  Indian  Penal  Code.  The learned Sessions  Judge, on an appreciation of the evidence, found that  the appellant, Sheo Dayal, Mihi Lal, Dularey and Mewa Lal had formed an unlawful assembly and in pursuance of its common  object, the  appellant had  intentionally caused the death  of one Ram Kumar by by inflicting on him a severe injury with  a bank severing his head from the body and then carried away  the head  in an  angaucha in a most brutal and inhuman fashion. On this finding, the learned Sessions Judge convicted the  appellant, Sheo  Dayal, Mihi Lal, Dularey and Mewa Lal  of offences  under s.  148 and s. 302 read with s. 149 and  sentenced each of them to rigorous imprisonment for one fear for the former offence and to death for the latter. The appellant,  Sheo Dayal,  Mihi Lal,  Dularey and Mewa Lal preferred an  appeal to  the High Court against the order of conviction and sentence recorded against them and their case was also  referred to the High Court for confirmation of the death sentence.  The High  Court agreed  with  the  findings reached by  the learned  Sessions Judge  and  confirmed  the conviction of  Sheo Dayal,  Mini Lal,  Dularey and  Mewa Lal

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under s.  148 and s. 302 read with s. 149, but reduced their sentence to  one of  life imprisonment for the offence under s. 302  read with  s. 149  and so  far as  the appellant was concerned, the  conviction was converted to one under s. 302 and the  sentence of  death was  maintained.  The  appellant thereupon preferred  an application for special leave and on that application,  special leave  was granted  by this Court limited only to the question of sentence.      Now, there  can be no doubt that the crime committed by the appellant  was a  most reprehensible  and heinous  crime which dis- 276 closed brutality  and  callousness  to  human  life  and  no extenuating circumstances  could be pointed out on behalf of the appellant  which would  assuage the  conscience  of  the Court and  persuade it not to inflict the extreme penalty of death on  the appellant.  The  only  circumstance  on  which reliance could  be placed  on behalf  of the  appellant  for mitigating the  rigour of  the punishment to be inflicted on him was  his tender age at the time of the commission of the offence. The record of the case shows that the appellant was about sixteen  years of  age at  the time  when he committed this brutal  crime. The  question is : whether this could be regarded as  a valid  circumstance for invoking the clemency of penal justice?      The legislative  history in  regard to  the subject  of capital punishment  shows that  there has  been  significant change in  thinking and  approach since  India became  free. Prior to  the amendment of s. 367(5) of the Code of Criminal Procedure by  Act 26  of 1955, the normal rule was to impose sentence of death on a person convicted for murder and, if a lesser sentence was to be imposed, the Court was required to record reasons  in writing.  But by  Act  26  of  1955  this provision in s. 367(5) was omitted, with the result that the Court became  free to  award either  death sentence  or life imprisonment and  no longer  was death sentence the rule and life  imprisonment  the  exception.  Then  again  a  further progress was  made in the same direction by s. 354(3) of the Criminal Procedure  Code, 1973.  That section  provides that when the  conviction is for an offence punishable with death or, in  the  alternative,  with  imprisonment  for  life  or imprisonment for  a term  of years, the judgment shall state the reasons  for the  sentence awarded,  and, in the case of sentence or death, the special reasons for such sentence. It will be  seen that the unmistakable shift in the legislative emphasis is that for murder, life imprisonment should be the rule and  capital punishment the exception to be resorted to only for  special reasons.  It is only where, in view of the peculiar facts  and circumstances, there are special reasons that death sentence may be awarded : otherwise life sentence should be  the ordinary  rule. This legislative provision in the new Code of Criminal Procedure clearly shows, as pointed out by  Krishna Iyer,  J., in  E. Anamma  v. State of Andhra Pradesh(1), "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." The seminal trends in current sociological  thinking and  penal strategy, tampered as they  are by humanistic attitude and deep concern for the worth of  the human  person frown  upon  death  penalty  and regard it  as cruel  and savage  punishment to  be inflicted only in  exceptional cases. It is against this background of legislative thinking  which reflects  the  social  mood  and realities and the direction of the penal and processual laws

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that we  have to  consider whether  the  tender  age  of  an accused is a factor contraindicative of death penalty. 277      The Law  Commission, in  the 35th  Report made by it on capital punishment fully considered whether the Indian Penal Code should  specify the minimum age of the offender who can be sentenced  to death,  and after  examining  the  position under the Children’s Acts of various States it expressed the following opinion :           "We feel  that, having  regard  to  the  need  for      uniformity, to  the views expressed on the subject, and      to the  consideration that  a person  under 18  can  be      regarded as  intellectually immature, there is a fairly      strong case  for adopting  the age of 18 as the minimum      for death  sentence.  we  are  aware  that  cases  will      occasionally arise  where a  person under  18 is  found      guilty of  a reprehensible  killing, or,  conversely, a      person above  18  is  found  to  be  immature  and  not      deserving  of  the  highest  punishment.  A  line  has,      however, to be drawn somewhere and we think that 18 can      be adopted without undue risk.           We, therefore recommend that a person who is under      the age  of 18  years at  the time of the commission of      the  offence  should  not  be  sentenced  to  death.  A      provision to  that effect  can be conveniently inserted      in the Indian Penal Code as section 558." The Law  Commission in  its 42nd  Report on the Indian Penal Code agreed  with this  recommendation of  the previous  Law Commission vide paragraph 3.34 of the 42nd Report of the Law Commission. The  Central Government appears to have accepted this recommendation  and a provision to that effect is to be found in  the Indian Penal Code (Amendment) Bill, 1972. This being the  current sociological and juristic thinking on the subject, it  would be  legitimate for the Court to refuse to impose death  sentence on  an accused convicted of murder if it finds  that at  the time  of commission of the offence he was under  18 years  of age.  Krishna Iyer, J., also pointed out in  E. Anamma  v. State  of Andhra  Pradesh (supra) that "where the  murderer is  too  young-the  elemency  of  penal justice helps him", and a murderer who is below 18 years age at the time of the commission of the offence would certainly be "too young".      The appellant  in the  present case was, as pointed out above, just  around 16  years of  age at  the time  when  he committed the  offence and,  therefore, in  the light of the above discussion  he would  be entitled  to the  elemency of penal justice  and it would not be appropriate to impose the extreme penalty  of death on him. We accordingly commute the sentence of death imposed on the appellant and convert it to one of life imprisonment. P.B.R.                                        Appeal allowed                                        and sentence reduced. 278