CriminalNo
1339 of 1991
Under Article 32 of the Constitution of India
RK Jain A Mariarputham Ms Aruna Mathut Udai Lalit Shankar C Ghosh and Ms Chanchal Ganguli for the Petitioner
The Judgment of the Court was delivered by KN SINGH J
Smt
Shashi Nayar wife of Raj Gopal Nayar who has been awarded death sentence for offence under Sec tion 302 of the Indian Penal Code  IPC  for short has approached this Court by means of this petition under Arti cle 32 of the Constitution challenging the constitutional validity of death penalty
Raj Goapal Nayar the petitioner s husband was tried for offence under Section 302 IPC for having killed his father and step brother
The Sessions Judge by his judgment and order dated 2441986 convicted Raj Gopal Nayar and awarded sentence of death
On appeal the High Court confirmed the death penalty and dismissed Raj Gopal s appeal against the order of the Sessions Judge
Raj Gopal thereafter filed a special leave petition before this Court challenging the judgment and order of the Sessions Judge and the High Court but the special leave petition was also dismissed by this Court
Review petition filed by him was also dismissed
Consequently his conviction and the sentence of death stood confirmed by all the courts
Thereupon he filed mercy petitions before the Governor of Jammu  Kashmir and the President of India but the same were rejected He chal lenged the order of the President of India rejecting the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution but the same was also dismissed
Another writ petition under Article 226 of the Constitution was filed before the Jammu  Kashmir High Court for quashing the sentence imposed on him but the same was also rejected
As the legal proceedings before the court failed he was to be hanged on 26101991
Shashi Nayar the petitioner thereupon filed the present petition under Article 32 of the Constitution before this Court challenging the validity of the capital punishment with a prayer for the quashing of the sentence awarded to Raj Gopal Nayar
The petition was entertained by a Division Bench on 25101991 and the matter was referred to the Constitution Bench for consideration and meanwhile the execution of the condemned prisoner was stayed
Mr Ravi K jain learned counsel for the petitioner made the following submissions 106 1 Capital punishment is violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person s life
2 Capital punishment does not serve any social purpose and in the absence of any study the barbaric penalty of death should not be awarded to any person as it has no deterrent effect
3 The penalty of death sentence has a dehumanising effect on the close relations of the victims and it deprives them of their fundamental rights under Article 21 of the Constitution to a meaningful life
4 The execution of capital punishment by hanging is barbaric and dehumanising
This should be substituted by d some other decent and less painful method in executing the sentence
The questions raised by Shri Jain have already been consid ered by this Court in detail on more than one occasion
In Jagmohan Singh vs State of UP1973 1 SCC 20 and in Bachan Singh vs State of Punjab  this Court has on a detailed consideration held that the capital punishment does not violate Article 21 of the Constitution
In Bachan Singh s case supra the court considered all the questions raised in this petition except question No4 and the majority judgment rejected the same by a detailed rea soned order
Since we fully agree with those reasons we do not consider it necessary to reiterate the same
Learned counsel further urged that the view taken in Jagmohan Singh s and Bachan Singh s cases supra is incor rect and it requires reconsideration by a larger Bench
He therefore requested us to refer the matter to a larger Bench as the question relates to the life of a citizen
He urged that the award of death penalty is a serious matter as it deprives a citizen of his life in violation of Article 21 of the Constitution and as such the court should consider the matter again
We are fully conscious of the effect of the award of capital punishment
But we are of the opinion that the capital punishment as provided by the law is to be awarded in rarest of the rare cases as held by this Court
The procedure established by law for awarding the death penalty is reasonable and it does not in any way violate the mandate of Article 21 of the Constitution
Since we agree with the view taken by the majority in Bachan Singh s and Jagmohan Singh s cases supra we do not find any valid ground to refer the matter to a larger Bench
Learned coun sel urged that the majority opinion in Bachan Singh s case supra was founded upon the 35th Report of the Law Commis sion submitted in 1967 which summarises the recommendations in the following words 107 Having regard however to the conditions in India to the variety of the social upbringing of its inhabitants to the disparity in the level of morality and education in the coun try to the vastness of its area to the diversity of its population and to the para mount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment Shri Jain urged that the above Report indicates that in 1967 the Law Commission was of the opinion that the country should not take the risk of experimenting abolition of capital punishment
However since then much water has flown
Further there is no empirical study before the Court to show that the situation which prevailed in 1967 is still continuing
Hence the Court should reconsider the matter
We do not find any merit in this submission
The death penalty has a deterrent effect and it does serve a social purpose
The majority opinion in Bachan Singh s case supra held that having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it
No material has been placed before us to show that the view taken in Bachan Singh s casesupra requires reconsideration
Further a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today
The present is therefore the most in opportune time to reconsider the law on the subject
Hence the request for referring the matter to a larger Bench is rejected
As regards the method of execution of the capital pun ishment by hanging this Court considered the same in detail in Deena alias Deen Dayal  Ors
etc vs Union of India  Ors etc
 1983 4 SCC 645 and held that hanging by neck was a scientific and one of the least pain ful methods of execution of the death sentence
We find no justification for taking a different view
Shri Jain howev er brought to our notice that a learned Judge of this Court while sitting during vacation had issued notice to the State on the question as to whether the execution by hanging is a cruel and unusual procedure
Hence he urged that we should entertain this petition and reconsider the question
Since the question of the mode of execution of capital punishment has already been considered in detail by this Court m Deen Dayal s case supra we do not find any good reason to take a different view
The question of reasonableness in the award of the capital punishment to Raj Gopal Nayar has been considered by the High Court and this 108 A Court at various stages and consistently it has been answered against the prisoner
Hence the petition fails and is accordingly dismissed
Interim relief order dated 2510
1991 is vacated
VPR Petition dismissed


Summary:
The business being carried on by a HUF of which the first appellant was the Karta was converted into a partnership between the first appellant and one of his sons who had earlier joined the business on monthly remuneration
The deed of partnership executed in that behalf indicated that the son had been admitted as a working partner having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by the first appellant as the Karta of the HUF
An 547 application made for registration of the firm was dismissed by the Income tax Officer on the ground that there was no valid partnership
This was upheld in appeal by the Appel late Tribunal
However at the instance of the assessee the matter was referred to the High Court for its opinion
The High Court also held that there was no valid partnership
In the appeal before this Court on behalf of the asses seeappellants it was contended that the mere fact that the son had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership but was contributing only his skill and labour could not in law detract from a valid partnership being created
On behalf of the respondent Revenue it was contended that Hindu Law did not recognise any contract among the coparceners inter se except in two cases namely where there was a partial partition and where a coparcener had separate property and brought in such separate property as capital towards consideration for becoming a partner and that skill and labour could not be treated as property
Allowing the appeal by the assessee appellants this Court HELD 11 It cannot be said that when a coparcener enters into a partnership with a karta of a HUF and contrib utes only his skill and labour no contribution of any separate asset belonging to such partner is made to meet the requirement of a valid partnership
The aim of business is earning of profit
When an individual contributes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm namely to earn profit
The same purpose is undoubt edly achieved also when an individual in place of cash asset contributes his skill and labour in consideration of a share in the profits of the firm
562 D E 13 Just like a cash asset the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual
Indeed skill and labour are by themselves possessions
Any possession is one of the dictionary meaning of the word property 
In its wider connotation therefore the mental and physical capacity generated by skill and labour of an individual and indeed the skill and 548 labour by themselves would be the property of the individ ual possessing them
They are certainly assets of that individual and there is no reason why they cannot be con tributed as a consideration for earning profit in the busi ness of a partnership
They certainly are not the properties of the HUF but are separate properties of the individual concerned
To hold to the contrary would also be incompati ble with the practical economic and social realities of present day living
562 E G 14 Where an undivided member of a family qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise elsewhere and the earnings will be his absolute property he will therefore not agree to utilise them in the family business unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits
This of course will have to be the subject matter of an agreement between the HUF and the member but where there is such an agreement it cannot be characterised as invalid
562 H 563 A BC 15 It is therefore illogical to hold that an undi vided member of the family can qualify for a share of prof its in the family business by offering moneys either his own or those derived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise skill and knowledge for making the family business more prosper ous
563 C D 16 In the instant case it is not the case of Revenue that the partnership between the first appellant as karta of HUF and his son was fictitious or invalid on any other ground
Hence the judgment of the High Court cannot be sustained
563 F G IP Munavalli vs Commissioner of Income Tax Mysore 1969 74 ITR page 529 Ramchand Nawalrai vs Commissioner of Income Tax MP 1981 130 ITR page 826 Commissioner of Income Tex Lucknow vs Gupta Brothers  approved
Shah Prabhudas Gulabchand vs Cornmissioner of Income Tax Bombay 1970 77 ITR page 870 Pitamberdas Bhikhabhai page 341 disapproved
Lachman Das vs Commissioner of Income tax Punjab  1948 16 ITR I 35 PKPS Pichappa Chettiar vs Chockalin gam Pillai AIR 1934 PC 192 549 Finn Bhagat Ram Mohanlal vs Commissioner of Excess profits Tax Nagpur 1956 29 ITR page 521 Jitmal Bhuramal vs CIT  and Jugal Kishore Baldeo Sahai vs CIT  19671 SC Commissioner of Income tax vs Sir Hukumchand Mannalal and Co  and Ratanchand Darbarilal vs Commissioner of Income Tax  referred to
The definition of the term learning under Section 2 of the is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity to pursue any trade industry profession of vocation in life
The dic tionary meaning of skill inter alia is the familiar knowledge of any science art or handicraft as shown by dexterity in execution or performance technical ability and the meaning of labour inter alia is physical or mental exertion particularly for some useful or desired end Whether or not skill and labour would squarely fail within the traditional jurisprudential connotation of property eg jura in re propria jura in re aliena corpo real and incorporeal etc
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity
This capacity is in its very nature an individual achievement and normally varies from individual to individual
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity
Achievement of an object or goal is a benefit
This benefit accrues in favour of the individual possessing and utilising the capacity
Such individual may for consideration utilise the capacity possessed by him even for the benefit of some other individual
The nature of consideration will depend on the nature of the contract between the two individuals
562 A D Mulla s Hindu Law referred to