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Table of contents
We have considered the arguments that can be advanced in support of the suggested change. It is true that, ordinarily speaking, leaving the court no discretion in the matter of sentence is an approach which is not in conformity with modern trends. S7 and In all these cases, if the person sentenced to imprisonment for life commits murder again, the court would by the terms of section be precluded from considering the extenuat- ing circumstances of the case, with a View to passing the lesser sentence.
It may also be noted that under section , second paragraph, Indian Penal Code attempt to murder by a person undergoing imprisonment for life, if hurt is caused , the offender "may be punished" with death. The punish- ment of death is not mandatory. This paragraph was added by the Amendment Act ', and has not gone so far as to make the sentence of death obligatory. As against these points, it can be argued that where a person has been already sentenced to imprisonment for life, it means that he has been at least once guilty of a serious oifencte, and, in the vast majority of cases the com- mission of a murder by him would tend to show that he is a dangerous criminal who has not mended his ways.
We have, however, come to the conclusion that it is not necessary to make any change. We feel that in such cases it would be pointless to award the sentence of imprisonment, which under the Code of Criminal Proce- durei must run concurrently. Courts exercise their discretion as to awarding the higher or lesser sentence in a capital case on certain broad principles.
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The case-law on the subject, represen- tative examples of which are collected elsewhere3, shows in a fair measure some of the important principles that are taken note of, in this context. Is it possible to codify such consi- derations? The two parts of the question, namely, what should be the considerations to be followed in awarding the lesser punishment, and whether it is possible to codify such con- siderations, may be dealt with together. That reply further points out that it is not possible to categorise i all circumstances of human ingenuity, or ii more particularly, the ingenuity of a criminal mind, or iii the circumstances under which the crime may be commit- ted.
That the considerations for awarding sentence might even change with time, is a point made by a retired High Court Judge'.
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Certain replies, while suggesting that the test of intention to cause death 2T1'. And inany replies" have pointed out that the principles have been laid down by judicial decisions, but that, at the same time. Murders committed in the heat of the moment are seldom punished with capital Ii7 and one High Court Judge, '9.
It has been emphasised in the reply of another High Court J ridge", it is on a balance of the particular facts and circumstances of each case that the question of punish- ment can be decided. Any attempt to cadify the law, it is stated, would fetter the judicial dis- and create uniniaginable hardships. A High Court Bar Association' has stated that the discretion vested in the court was a wise one, and the law need not be altered because for the last years it has worked very satisfactorily. The reply adds that while the. The reply of the majo- rity of the Presidency Magistrates in the Presidency Town' states that there are extremes of murders,--two extreme instances being a cold blooded murder committed with ut- most cruelty or for dastardly motives on the one hand , and murder by a mother of her child owing to poverty on the other hand.
The discretion regarding sentence, it is stated, is being exercised judiciously, and it is not neces- sary to codify the Qonsiderations. The reply of a District Bar Association3 states that each case will have to be considered in its own context and circumstances. As times change and circumstances vary, considerations will also differ.
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Several District and Sessions J udges7 are of the view that as the circumstances of murder vary from case I Reply to questions 4 and 5, S. In one reply', it is emphasised that it is the "sum total" of the circumstances that guides the court in awarding sentence. Each case of murder has its own peculiar features which deserve con- sideration.
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The judge who is trusted to try such cases must be trusted to exercise it wisely. Under the first class fall the opinions expressed by certain High Court J udges' to the effect that if discretion in the matter of sentence is to be left, some principles for its exercise should be indicated, for example, minority of the accused. Various bases have been suggested, e. One reply' suggests that the only two considerations are that, if the Judge strongly feels that the accused is honest, or, if the past history of the accused shows satis- factory character, the lesser punishment should be award- ed, and that these are the only two considerations for lesser punishment.
Another reply'-' states that the age, nature of the offence. Another reply" after stating that the considerations to be taken into account pertain to the offence and the offender, proceeds to give an elaborate enumeration of the factors to be taken into consideration regarding the offence as well as the offender. These are as follows As regards the offender himself, account should be talaen, it is stated, of the following facts It remains now to consider replies suggesting the middle course provisions in certain respects.
Thus, it has been stated1 that there is no insurmountable difficulty in making 0. I would put it the other way. The considera- tions which should weigh with court in awarding the higher punishment of sentence of death would have to be thought of and discretion vested in courts in this regard. It must be possible to codify such considera- tions.
Another reply", while favouring total abolition, states. The cate- gories of crimes indicated in section 5 of the English Homicide Act, and which are punishable with death under Indian Penal Code may be taken as offen- ces for which sentence of hanging should be the capital sentence. So far as the remaining categories of the offences punishable with death under the Indian Penal Code are concerned, certain uniform principles should be laid down in the matter of the imposition of the sentence. Where the murder is premeditated cold blooded and brutal such as where the offence falls within the ambit of paragraph 1, or paragraph 2 of section Indian Penal Code, capital sentence should be the normal sentence.
One District and Sessions Judge has stated' that the vesting of discretion is necessary, but that the provi- sion is not working satisfactorily, and that for the exercise of discretion, some broad principles by way of illustrations or illustrative cases may be appended to the relevant sec- tions. The reply, while enumerating some of the conside- rations which usually weigh with the court, takes care to emphasise that it is not possible to attempt an exhaustive enumeration of these considerations.
Another reply" suggests that in the case of a conviction under sec- tion , Indian Penal Code read with section 34 or sec- tion , Indian Penal Code , the normal sentence should be death, in the absence of extenuating circumstances. I do not aspire to be exhaustive, but these are the few I can think of at the moment. The reply of a member of a State Legislature" sug- gests the following considerations The conduct of the murder- er, the nature of the temptation to which he yielded and the manner in which the crime Was committed are some of the considerations which will weigh with the court.
It is not possible to codify these considerations. Some of the considerations which should weigh with the court in awarding the lesser punish- ment are noted below Another reply states ', that though it is not possible to codify the considerations, yet the position can be broad- ly stated thus There may be circumstances which, when taken into account along with other circumstances, may suffice; but they cannot be exhaustively enumerated.
Lastly, there may be circums- tances which are by themselves sufficient, but they cannot also be exhaustively enumerated. Further, the exercise of the discretion may depend on local conditions, future developments, evolution of the moral sense of the community, state of crime at a particular time or place and many other unforseeable features.
We do not, therefore, recommend any Change in the law on this point. A "codification". The apprehension expressed in some of the replies, that the leaving of the discretion to the Court makes the actual event arbitrary, does not seem to constitute a very strong argument. In the second place, if in a particular case a miscarriage of justice occurs by reason of the improper exercise of the discretion, the High Courts would always be there to correct such miscarriage.
Thirdly, it may be pointed out that even in England the Royal Com- mission did not favour the position then existing, under which the sentence of death was mandatory for murderl. If, therefore, a discretion is to be left, it should be a real and effective discretion, not trammelled by condi- tions laid down for all times, all places, all offences and all offenders.
Report, page , paragraph Raszali Al.
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VVG have next to consider the question whether it is Division of p" s':1ible to divide murders into different categories'. The murders- question is an important one. In England, the Royal Commission on Capital The remaining murders would be second degree mur- ders and non-capital. Some legislative proposals were introduced after this Report, but they did not become law. A number of Bills. It is unnecessary to go into details, but speaking ' roughly, in most of these cases the test was deliberate ire tention or association with other offences, or murder in the course of escaping from arrest, or murdering a constable, etc.
See paragraph 4, supra. Report of , page , 3 See R- C. Report, pages The Criminal Justice Bill, , as sought to be amended by the Government amendment may, however, be considered in detail. This Bill, originally, contained no provision for the abolition of death penalty, though it was expected that it would contain such a provision in View of the resolution passed in the Commons in The Bill was introduced in October, , and Mr.
The clause was approved by the Commons, though not by the Lords, and the Bill came back to the Commons. Government, thereupon, thought of a compromise, and presented its proposal to the House of Commons through the Attorney--General, Sir Hartley Shaw crossl. In these cases, the murder was capital, and in other cases, the sentence was imprisonment for life. The clause was passed by the Commons. In the House of Lords, Lord Chancellor Viscount Jowitt supported the clause, and argued that capital punishment could be justified only if it helped to prevent murders, and the cases for which the death penalty would be retained in this proposal were those where it was believed that it acted as a deterrent.
The basis was deterrence rather than some other criterion, such as pre-meditation or degree of moral guilt? The clause. In some countries in Europe certain forms of inten- tional homicide are regarded as more heinous and punish- able by death instead of imprisonment for life. As a ty i- cal example may be cited the law in France?
As an example, may be Quoted section 47Cl of the Penal Code of Pennsylvania, undrt' which all murder which should be perpetrated by niean: of poison or by lying in wait or by any other kind of wilful, deliberate and premeditated killing or which shall be committed in the perpetration of or attempting to perpetrate any arson, rape, robbery, burglary, or kidnap- ping, shal1 be murder in the first degree.
The division of murder into capital and non-capital Canada. In Australia, two statesQueensland and Western Australia. Criminal Code oF Canada. Except as hereinafter set forth, a person who un- lawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder.
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Under section as amended by Act 28 of , in the case of wilful murder, the penalty must be death, while in the case of murder, it is imprisonment for life. The scheme of division was considered, but rejected after discussion in New Zea1and,1 when the Bill which led to the New Zealand Crimes Act was under considera- tion. The Royal Commission on Capital Punishment exa- mined this question? Regard- ing the tests adopted in other countries, its views were as follows:. The murder of a Prime Minister by a fanatic may be as atrocious as the murder of a policeman, yet the former was excluded and the latter included in the Bill.
VG Conclusion in paragraph '3 R. Report, paragraph , regarding position in U. Report, paragraph Though the Royal Commission had not favoured the division of murder into degrees? Under section 5 1 , the following murders are capital, namely The various categories may be explained. Category b relating to shooting or explosion seems to have been suggested by the compromise clause of the Cri- minzzl Justice Bill, read with the Schedule item 4 which relates to explosives and other destructive substances.
Category c relating to resisting arrest, etc. These details have not been given in the Explanatory Memorandum to the Homicide Bill. Certain the provision methods of rnurtier have been picked and chosen, but. Murderers can thus "choose their weapons" carefully to avoid capital punishment.