N Criminal Appeal No 273 of 1979
Appeal by Special Leave from the Judgment and Order dated 14 8 1978 of the Punjab and Haryana High Court in Crl
A No 23478 and Murder Reference No 378
H K Puri Amicus Curiae for the Appellant
R section Sodhi and Hardev Singh for the Respondent
The following Judgments were delivered SARKARIA J While reserving my own opinion on the various question raised in this case including the one with regard to the scope amplification and application of Section 3543 of the Code of Criminal Procedure 1973 I would in agreement with my learned brother direct that the records of this case be submitted to the Hon ble the Chief Justice for constituting a larger Bench which would resolve the doubts difficulties and inconsistencies pointed out by my learned brother in his order particularly in its last paragraph
KAILASAM J
This special leave petition is filed by Bachan Singh son of Saudagar Singh from jail against the conviction and sentence imposed on him by the High Court of Punjab and Haryana
This Court ordered notice to the State and heard the counsel for the petitioner and the State and granted special leave
The appellant was tried by the Sessions Judge Ferozepur on three charges of causing the death of three persons Desa Singh the son and Durga Bai and Veeran Bai daughter of Hukam Singh and causing grievous injuries to Vidya Bai another daughter of Hukam Singh at about 12 midnight between the 4th and 5th July 1977 in the courtyard of the house of Hukam Singh
The learned Judge found the appellant guilty of the three charges under section 302 IPC and sentenced him to death on each count
He also found him guilty under section 326 IPC for causing grievous hurt with a sharp cutting weapon to Vidya Bai and sentenced him to three years  rigorous imprisonment and a fine of Rs 500 
Against the convictions and sentences passed the appellant preferred Criminal Appeal No 234 of 1978 to the High Court
The appeal along with the Reference No 3 of 1978 made by the trial Judge for confirmation of sentence of death were heard together by the High Court
The High Court rejected the appeal and confirmed the convictions and sentences passed on the appellant
The case for the prosecution briefly is that the appellant Bachan Singh was convicted under section 302 IPC for the murder of his wife 1197 and sentenced to imprisonment for life
After undergoing the term of imprisonment he was released
After the release he lived with his cousin Hukam Singh P VV
5 for about six months
Hukam Singh s wife and son objected to the appellant living in their house
A few days prior to the occurrence Hukam Singh and his wife went to Nainital in connection with the marriage of their son Desa Singh
On the night of the occurrence 4th July 1977 Desa Singh son of Hukam Singh Durga Bai Veeran Bai and Vidya Bai the daughters of Hukam Singh were in the house
After taking their meals the three daughters slept in the inner courtyard Durgabai in one cot and Veeran Bai and Vidya Bai in another cot near each other
Desa Singh the son of Hukam Singh and the appellant slept in the outer courtyard on two separate cots near each other
At about midnight Vidya Bai PW 2 was awakened by the alarm and saw the appellant inflicting Kulhari axe blow on the face of her sister Veeran Bai
When Vidya Bai tried to get up the appellant gave Kulhari blow on her face and ear
She was unable to speak and fell unconscious
Diwan Singh PW 12 who was sleeping at a distance of 34 Karms from the cots of Desa Singh and the appellant also woke up on hearing a shriek
He saw the appellant striking Desa Singh with a Kulhari
He raised an alarm and Gulab Singh PW 3 who was sleeping at a distance of SO feet from the cot of Desa Singh woke up and saw the appellant hitting Desa Singh on the neck with a Kulhari
On an alarm being raised by the witnesses the appellant threw the Kulhari in the courtyard and ran away
Gulab Singh and Diwan Singh PWs
3 and 12 gave a chase to the appellant but could not apprehend him
Soon after Kanshi Singh PW 4 and others arrived at the place of occurrence and heard from the witnesses the detail of the occurrence
A tractor was brought in which Durga Bai Veeran Bai and Vidya were taken to the hospital at Fazilka
The Doctor who examined the dead bodies and the injured person gave the necessary certificates
He also sent information to the ASI PW 13 who went to the hospital and recorded the statement from PW 12 on the basis of which the FIR was recorded at the police station at 4 20 am
On 5th July 1977
The police officer conducted the inquest and preceded with his investigation
The courts below found that the medical evidence fully corroborated the testimony of the injured eye witness PW 2 and two other eye witnesses PWs 3 and 12 and found that the prosecution had established its case beyond reasonable doubt
The trial court and the High Court on a consideration of the evidence found that PW 2 Vidya Bai the daughter of Hukam Singh 1198 who was sleeping along with her sisters in the house and suffered serious injuries saw the attack by the appellant when she woke up
There is evidence that it was a moonlit night and there was sufficient light by which the assailant would have been identified
The trial court accepted the evidence of PW 2
The High Court also found that the evidence of PW 2 is trustworthy
Both the courts below also relied on the testimony of the other two eye witnesses PWs 3 and 12
PW 3 Gulab Singh was sleeping at a distance of 50 Karmas and got up after hearing the alarm and rushed to the scene
PW 12 was sleeping at a distance of 15 feet of Desa Singh
The trial court as well as the High Court accepted the testimony of the two eye witnesses S PWs 3 and 12
On a consideration of the evidence of the eye witnesses the High Court observed that the evidence provided by the eye witnesses is of very high order in the case and was rightly accepted by the learned trial Judge
 We have no hesitation in agreeing with the concurrent findings of the courts below and holding that the prosecution has proved beyond all reasonable doubt that the appellant caused the death of the three deceased Desa Singh Durga Bai and Veeran Bai and grievous hurt to Vidya Bai PW 2
Regarding the sentence the High Court observed The objection by Desa Singh his mother and other family members was of a triffing nature on which the appellant acted in a very cruel manner
The victims had no cause to suspect  the intentions of the appellant and went to sleep
Taking advantages of the situation when the victims could not defend the appellant killed three and seriously wounded the fourth
It was by sheer luck that Vidya Bai survived
The manner in which the appellant perpetrated these crimes by killing these persons in their sleep is heinous
Under these circumstances the case of the appellant for reduction of the sentence cannot be considered and in our view the sentence awarded by the learned trial Judge was the only appropriate sentence
 The crime is diabolic and very cruel
Hukam Singh a cousin accommodated the appellant in spite of the protests of his wife and son
While enjoying the hospitality at the dead of night when nobody had any suspicion the appellant committed in the most dastardly manner the crime
Desa Singh was sleeping in a cot by the side of the appellant
The appellant at the dead of night while the others were sleeping unsuspectedly hacked three persons to death
It is only providential that the third daughter Vidya Bai escaped
The crime in our view is one of the foulest that could be imagined and we are in entire agreement with the courts below about their assessment of the gravity of the crime the only question for consideration is whether 1199 the facts found would be special reasons for awarding the death sentence as required under sec
3543 of the Code of Criminal Procedure 1973
Section 302 IPC and sub sec
3 of section 354 of the Cr
PG 1973 deal with the imposition of death sentence
Section 302 IPC provides Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine
 Sub sec
3 of sec
354 of the Code of Cr
Procedure 1973 enacts
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
 Before the amendment of sec
367S Cr
PC by the Criminal Procedure Code Amendment Act 1955 Act XXVI of 1955 which came into force on 1st January 1965 on a conviction for an offence punishable with death if the Court sentenced the accused to any punishment other than death the reason why sentence of death was not passed had to be stated in the judgment
Section 3675 of the Code of Criminal Procedure before its amendment by Act 26 of 1955 provided that if the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death the Court shall in its judgment state the reasons why sentence of death was not passed
 This sub section was construed before the Amendment Act Act 26 of 1955 as meaning that the extreme sentence is the normal sentence and the mitigated sentence is the exception
In Dalip Singh vs State of Punjab1 it was held that in a case of murder the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty
In Vadivelu Thevar vs The State of Madras2 this Court expressed its view that the question of sentence has to be determined not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate 1 AIR1953 SC364 2 AIR1957 SC6I4
1200 the enormity of the crime
If the Court is satisfied that there are such mitigating circumstances only then it would be justified in imposing the lesser of the two sentences provided by law
These two cases were rendered in relation to offences which were committed before the Criminal Procedure Code Amendment Act 26 of 1955 was enacted
The law therefore prior to the amendment was that unless there are extenuating circumstances the punishment for murder should be death and not imprisonment for life
By the Amendment Act 26 of 1955 a new sub section sub section 5 was substituted for the former sub section S by Act 26 of 1955 which does not contain the provision making it incumbent for a Judge to record his reasons for imposing a lesser penalty
After the amendment which omitted the provision requiring the recording of reasons for imposing the lesser penalty the Court is not under a statutory duty to record the reasons
Still as the Courts have to impose one of the two penalties namely death or imprisonment for life the Courts will have to exercise their judicial discretion in deciding which of the two penalties should be imposed
The result is that after the amendment though the Court is not required to record the reasons for imposing the lesser penalty it was bound to exercise its discretion judicially
To show that the discretion has been judicially exercised reasons are given for imposing the particular sentence
This makes it necessary for the court to give its reasons for imposing the particular sentence though by the Amending Act the court was not required to give reasons for not imposing any punishment other than death
The effect of the amendment has been stated by this Court in Raghubir Singh vs State of UP  that after the amendment of section 367S Criminal Procedure Code by Act 26 of 1955 the discretion of the court in deciding whether to impose the sentence of death or of imprisonment for life has become wider
By the Code of Criminal Procedure 1973 Act 2 of 1974 subsection 3 to section 354 was introduced regarding the contents of the judgment relating to imposition of a sentence of death or imprisonment for life or imprisonment for a term of years
Sub sec
3 which deals with the conviction for an offence punishable with death or in the alternative with imprisonment for life or for a term of years in sentencing a person on conviction for such an offence the judgment is required to state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence
When the court in its discretion imposes either a sentence 1 1972 3 SCC79 1201 of death or imprisonment for life or for imprisonment for a term of years the Court is required to record reasons for imposing one or the other sentence which it can legally impose
As the Court has a discretion to award a sentence of death or imprisonment for life or imprisonment for a term of years and as the discretion is very wide the law requires that reasons shall be stated for awarding one or other of the sentences
In the case of an offence under sec
132 IPC the punishment provided for is death or imprisonment for life or imprisonment for 10 years and fine
There are other offences like the one under section 131 IPC which is punishable with imprisonment for life or imprisonment for 10 years and fine
Sections 121a 122 125 128 130 131 IPC and other sections provide for the punishment of imprisonment for life or imprisonment for a term of years
In such cases under section 3543 the Court is required to state reasons why one or other of the sentences is imposed
In the case of offences punishable with death the sub section requires that special reasons for imposing such sentence should be given
This requirement makes it clear that where the punishment provided for is death or imprisonment for life the sentence that should be imposed as of rule should be one cf imprisonment for life
But if the offence is of such a grave nature that the court thinks the higher of the penalties namely the death sentence should be imposed special reasons should be given
Thus while the legislature retained the imposition of death sentence it laid down that if the court awarded the death sentence it should Furnish special reasons
In Chapter 27 which relates to Judgments  there are other sections which require that reasons should be given for imposing or not imposing a particular sentence
Sub section 4 to section 354 requires that when the conviction is for an offence punishable with imprisonment for a term of one year or more but the Court imposes a sentence of imprisonment for a term of less than three months it shall record its reasons for awarding such sentence
Such reasons need not be recorded if the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provision of Cr
PC Section 361 requires that when the court could have dealt with a an accused person under section 360 or under the provisions of the Probation of offenders Act 1958 or b a youthful offender under the 
Or any other law for the time being in force for the treatment training or rehabilitation of youthful offenders but has not done so it shall record in its judgment the special reasons for not having done so
This section also requires special reasons to be given if the court has not dealt 1 with the accused under the provisions mentioned The object of requiring the reasons to be given regarding the sentence could be 1202 found in the Law Commission s Report and the Report of the Joint Parliamentary Committee
The Law Commission in Vol
I 35th Report on the Capital Punishment expressed that a considerable body of opinion is in favour of a provision requiring tile Court to state its reasons for imposing the punishment either of death or imprisonment for life
The Commission was of the view that this would be a safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt and that it would provide good material at the time when a recommendation for mercy is to be made by the court or a petition for mercy is considered and that it would increase the confidence of the people in courts by showing that the discretion is judicially exercised
It would also facilitate the task of High Court in appeal or in proceedings for confirmation in respect of the sentence where the sentence awarded is that of death or in proceedings in revision for enhancement of the sentence where the sentence awarded is one of imprisonment for life
In its 41st Report on the Cr
PC the Law Commission recommending the amendment also observed that there were certain offences for which the Penal Code prescribes the punishment as death or in the alternative life imprisonment or imprisonment for a term of years and therefore the amendment recommended should cover these cases also
The Joint Committee of Parliament added that a sentence of death is the extreme penalty of law and it is but fair that when a court awards that sentence in a case where the alternative sentence of imprisonment for life is also available it should give special reasons in support of the sentence
For giving effect to the recommendation of the Law Commission and the Joint Committee of Parliament sub section 3 to section 354 was amended in the present form
The object the amendment therefore is to insist on the lower courts to examine the case as elaborately from the point of view of sentence as from the point cf view of guilt and state its reasons for imposing the sentence which would help the High Court in discharging its functions particularly in confirming a sentence of death or enhancing a sentence of imprisonment for life to death
This object is further sought to be achieved by the introduction of sub section 2 to section 235 which provides an opportunity of hearing the accused on the question of sentence
The provision requiring special reasons for awarding death sentence makes it also clear that the normal sentence when punishment of death or imprisonment for life could be awarded is only imprisonment for life and if the court imposes death sentence it should give special reasons
1203 The development of law regarding the imposition of death sentence call be summarised as follows
While before the Amending Act 26 of 1955 was introduced the normal sentence for an offence of murder was death and that the lesser sentence is the exception after the introduction of sub section 5 to section 367 by Act 26 of 1955 it was not obligatory for the Court to state the reasons as to why the sentence of death was not passed
By the amendment the discretion of the Court in deciding whether to impose a sentence of death or imprisonment for life became wider
The court was bound to exercise its judicial discretion in awarding one or the other of the sentences
By the introduction of section 3543 the normal sentence is the lesser sentence of imprisonment for life and if the sentence of death is to be awarded special reasons will have to be recorded
In other words the court before imposing a sentence of death should be satisfied that the offence is of such a nature that the extreme penalty is called for
The decisions rendered by this Court after the introduction of the amendment to S3543 by Act 2 of 1974 have reiterated this position
In Balwant Singh vs State of Punjab1 this Court summing up the position observed that under section 3543 of the Cr PC 1973 the Court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated
It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons that is to say special facts and circumstances in a given case will warrant the passing of the death sentence
This view was reiterated by this Court in Ambaram vs The State of Madhya Pradesh2 In Sarveshwar Prasad Sharma vs State of Madhya Pradesh3 it was observed that this Court has in several cases indicated guidelines in this problem area of life and death as a result of judicial verdict but none of these guidelines can be cut and dry nor exhaustive and each case will depend upon the totality of the facts and circumstances and other matters revealed
The validity of imposition of death sentence was challenged in the ground that the sentence puts an end to all Fundamental Rights guaranteed by clauses a to g of sub clause 1 of article 19 of the Constitution and therefore the law with regard to capital sentence is unreasonable and not in the interest of the general public
It was further contended that the discretion invested in the Judges to impose capital punishment is not based on any standard or policy required by the Legislature for imposing capital punishment in preference to 1 19762 SCR 684 2 19764 SCC 298 3 19781 SCR 560 1204 imprisonment for life
Further it was submitted that the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by article 14 of the Constitution
Lastly it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life and therefore article 21 is violated
A Constitution Bench of this Court in Jagmohan Singh vs The State of UP  rejected all these contentions
It was held that the deprivation of life is constitutionally permissible if that is done according to procedure established by law and that it cannot be held that capital sentence is per se unreasonable or not in the public interest
It was further held that the impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment
That discretion in the matter cf sentence is liable to be corrected by superior Courts
The exercise of judicial discretion on well recognised principles is in the final analysis the safest possible safeguard for the accused
The challenge under article 14 was also negatived on the ground that the facts and circumstances of a crime are widely different and since a decision of the court as regards punishment is dependent upon a consideration of all the facts and circumstances there is hardly any ground for a challenge under article 14
The Court also negatived the plea that the provisions of law do not provide a procedure for trial of factors which are crucial for making the choice between the capital penalty and imprisonment for life
The Court rejected all the challenges against the award of death sentence on the ground of violation of the provisions of the Constitution
It also upheld the investment of wide discretion in the matter of fixing the degree of punishment on the Judges as the exercise of judicial discretion on well recognised principles is the safest possible safeguard for the accused
The Constitution Bench delivered its judgment on the 3rd October 1972
Subsequently amendment to the Code of Criminal Procedure 1973 Act 2 of 1974 came into force on 1st April 1974
The only change by the new Act is the introduction of section 367 S of the Criminal Procedure Code which provides that the judgement shall state the special reasons where a sentence of death is awarded for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years
The requirement that the courts should state the special reasons for awarding the death sentence would indicate that the normal sentence for an offence punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered 1  1205 that sentence of death is appropriate on the particular facts of the case It should give special reasons
Apart from the emphasis that the normal sentence is imprisonment for life and that special reasons should be given for awarding the death sentence there is no further alteration in the law relating to awarding of the death penalty
As already noticed the effect of the amendment was considered by this Court in  and  supra and it was held that the awarding of sentence other than the sentence of death is the general rule now only special reasons that is to say special facts and circumstances in a given case will warrant the passing of the death sentence
A recent decision of this Court Rajendra Prasad s case in Cr
Nos 512 511 and 513 of 1978 was delivered on 9th February 19791 The decision by the majority was delivered by Krishna Iyer J held that special reasons necessary for imposing the death penalty must relate not to the crime as such but to the criminal
It further held that death sentence can be awarded only in certain restricted categories The tests that are prescribed are to find out whether the murderer holds out a terrible and continuing threat to social security in the setting of a developing country and poses a grave peril to society s survival
The other circumstances which would justify imposition of death sentence are when an economic offender intentionally mixes poison in drugs professionally or wilfully adulterates intoxicating substances injuriously and knowingly or intentionally causes death for the sake of private profit or when a murderous band of armed dacoits intentionally derail a train and large number of people die in consequence or when the style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death
Likewise when a murderer is so hardened and so blood thirsty that within the prison and without he makes no bones about killing others or carries on a prosperous business in cadavers then he becomes a candidate for death sentence
I have read through the judgment of the Court with utmost care
The decision is in many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh s case
The Court has proceeded to make law as regards the conditions that are necessary for imposition of a sentence of death under section 302 IPC
It has proceeded to canalisation of sentencing discretion and has embarked on evolving working rules on punishment bearing in mind the enlightened flexibility of social sensibility
In doing so I feel the court has exceeded its powers conferred on it by law
1  1206 To substantiate my statement I proceed to give a few extracts from the judgment
At the outset of the judgment it is stated that the precise issue before it was the canalisation of the sentencing discretion in a competing situation Therefore this jurisprudential exploration within the framework of section 302 IPC has become necessitous both because the awesome eitheror  of the Section spells out no specific indicators and law in this fatal area cannot afford to be conjectural The flame of life cannot flicker uncertain and so section 302 IPC must be invested with pragmatic concreteness that inhibits ad hominem responses of individual judges and is in penal conformance with constitutional norms and world conscience Within the dichotomous frame work of section 302 IPC upheld in Jagmohan Singh we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility  Therefore it is no heresay to imbibe and inject the social philosophy of the Constitution into the Penal Code to resolve the tension between the Past and the Present  That is the essay we undertake here
But if legislative undertaking is not in sight judges who have to implement the code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles even if it may appear to possess the flavour of law making This Court s tryst with the Constitution obligates it to lay down general rules not a complete directory which will lend predictability to the law vis a vis the community and guide the judiciary in such a grim verdict as choice between life and death  Therefore until Parliament speaks the court cannot be silent  This Court must extricate until Parliament legislates the death sentence sector from judicial subjectivism and consequent uncertainty Having stated the area and object of investigation we address ourselves to this grave penological issue purely as judges deciding a legal problem putting aside vie vs philosophical or criminological one holds
But law in this area cannot go it alone and cross fertilisation from sociology history cultural anthropology and current national perils and developmental goals and above all constitutional currents cannot be eschewed
 The above are few of the passages in the prolix and diffuse judgment as the learned Judge has chosen to call it
The passages clearly indicate that the Court in the absence of legislative undertaking has embarked on law making as in its view the Judges cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles even if it may appear to possess the flavour of law making and that until Parliament speaks the Court 1207 cannot be silent
With utmost respect I feel that the courts have no such power to legislate and to frame rules to guide the infliction of death penalty
The duty of the court so far as enacted law is concerned is to interpret and construe the provisions of the enactment
By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed
The courts must take it absolutely for granted that the legislature has said what is meant alld meant what it has said
Judges are not at liberty to add or to take FRS or modify the letter of the law simply because they have Cr reason to believe the true sentence legis is not completely or correctly expressed by it
Salmod on Jurisprudence 11th Ed
by Glanville Williams p 153
The Constitution and the laws bind every court in India and that though the courts are free to interpret they are not free to overlook or disregard the Constitution and the laws
As held in Young vs Bristol Aeroplane Co Ltdl the Court is not entitled to disregard the statutory provisions and to follow a decision of its own when that provision was not present in its mind
It is equally beyond the functions of a Court to evolve working rules for imposition of death sentence bearing the markings of enlightened flexibility and social sensibility or to make law by cross fertilisation from sociology history cultural anthropology and current national perils and developmental goals and above all constitutional currents
I am of the view that it is the function of the Parliament to frame laws consistent with the needs of the society
If the grounds for award of a sentence of death has to be more specifically stated than that it is found in the Indian Penal Code and the Cr
PC it is for the Parliament to do so
Various legislative measures were introduced but were withdrawn from time to time
At present there is a Bill before the Parliament
It is for the Parliament to clarify the circumstances under which a sentence of death could be awarded
It is for the court to administer the law as it stands
In awarding sentence of death the Court has to take into consideration the various aspects regarding the crime and the person that committed the crime and pass an appropriate sentence and if it is death sentence to give special reasons as required by the Cr
If in deciding a case on particular facts a principle is stated it may be binding as a precedent
If the Courts resort to rule making it will not be binding as precedent
If the Courts are to embark on rule making the question arises whether 1 1947 1 KB718 1208 the responsibility can be undertaken by a bench of 3 Judges with a majority of 2 to 1
Is it permissible for another bench to proceed to make laws and prescribe an entirely different sets of rules  There is no machinery by which the Court could ascertain the views of the various cross sections of the society which is a prerequisite before any law making is resorted to
The Court has embarked on framing rules prescribing conditions for imposition of death sentence taking into account cross fertilisation from sociology history cultural anthropology and current national perils and developmental goals and above all constitutional currents
So far as constitutional currents are concerned the Constitution Bench has upheld the validity of awarding of the death sentence
The Court has proceeded on the basis that the earlier decisions of this Court have taken into account only the crime and not the criminal
The emphasis according to the judgment should be on the criminal and not on the crime
The mode of sentencing as envisaged in the Penal Code and the Cr
PC requires that every fact that is relevant to the determination of the sentence including the crime the criminal and other environmental circumstances will have to be taken into account
The view of the learned Judge that in awarding a sentence the criminal is more important than the crime is not warranted by the law as it stands today
I will now refer to various points dealt with in the judgment which are contrary to the decision of the constitutional Bench
Justice Krishna Iyer says The main focus of our judgment is on this poignant gap in human rights jurisprudence  within the limits of the Penal Code impregnated by the Constitution
To put it pithily a world order voicing the worth of the human person a cultural legacy charged with compassion an interpretative liberation from colonial callousness lo life and liberty a concern for social justice as setting the sights of individual justice interest with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14 19 and 21
 The challenge to the award of the death sentence as violative of Articles 19 14 and 21 was repelled by the Constitution Bench by holding that the death sentence is a permissible punishment and that deprivation of life is constitutionally permissible if that is according to procedure established by law
Regarding laying down standards in imposing the punishment the Court observed that the impossibility of laying down standards is at the very core of criminal law as administered in India which invests the Judges with a very wide diseretion in the matter of fixing the degree of punishment and that 1209 this discretion in the matter of sentence is liable to be corrected by superior Courts
It was held that the exercise of judicial discretion on well recognised principles is in the final analysis the safest possible safeguard for the accused
Justice Krishna Iyer would comment on the observations of the Constitution Bench above quoted as follows The acceptance of the invulnerability of discretionary power does not end the journey it inaugurates the search for those well recognised principles  Palekar J speaks of in the Jagmohan case
Incidental observations without concentration on the sentencing criteria are not the ratio of the decision
Judgments are not Bible for every line to be venerated with respect I am unable to agree with the characterization of Palekar J s judgment as incidental observations without concentration on the sentencing criteria
At p 559 of the Reports Palekar J Observes In India this onerous duty is cast upon Judges and for more than a century the judges are carrying out this duty under the Indian Penal Code
The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment
That discretion m the matter of sentence is as already pointed out liable to be corrected by superior courts
Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose
 After disapproving laying down of standards the learned Judge proceeded The exercise of judicial discretion on well recognised principles is in the final analysis the safest possible safeguard for the accused Emphasis supplied The learned Judge quoted with approval the view of this Court in Budhan Chowdhary vs State of Bihar1 which is as follows The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection unless there is shown to be present in it an element of intentional and purposeful discrimination
Further the discretion of judicial officers is not arbitrary and the law pro vides for revision by superior courts of orders passed by the subordinate courts
In such circumstances there is hardly any ground for apprehending any capricious discrimination by judicial tribunals
 Palekar J continued Crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely 1  21 409SCI79 1210 different and since a decision of the court as regards punishment is dependent upon a consideration of all the facts and circumstances there is hardly any ground for challenge under Article 14
 At page 560 of the reports Palekar J explains the procedure that is followed by the Courts which enables to bring into focus all the circumstances that are relevant to be taken into account in awarding the sentence
On a reading of the judgment of the Constitution Bench I regard my inability to share the view of Krishna Iyer J that Palekar J s observations are incidental and without concentration
It may be noted that the laying down of the standards which was deprecated is being attempted in this decision
Krishna Iyer J would state It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society public order and the interests of the general public compel that course as provided in article 192 to 6
This view again is inconsistent with the law laid down by the Constitution Bench which has held that deprivation of life is constitutionally permissible if that is done according to procedure established by law
Krishna Iyer J has observed that no Code can rise higher than the Constitution and the Penal Code can survive only if it pays homage to the suprema lex
The only correct approach is to read into section 302 IPC and section 3543 Cr
PC the human rights and human trends in the Constitution
So examined the right to life and to fundamental freedoms is deprived when he is hanged to death his dignity is defiled when his neck is noosed and strangled the only change after the Constitution Bench delivered its judgment is the introduction of section 3543 which requires special reasons to be given if the court is to award the death sentence
If without the restriction of stating sufficient reasons death sentence could be constitutionally awarded under the IPC and Cr
PC as it stood before the amendment it is difficult to perceive how by requiring special reasons to be given the amended section would be unconstitutional unless the sentencing sector is made most restrictive and least vagarious
Krishna lyer J has held that such extra ordinary grounds alone constitutionally qualify as special reasons  as leave no option to the court but to execute the offender if State and society are to survive
One stroke of murder hardly qualifies for this drastic requirement however gruesome the killing or pathetic the situation unless the inherent testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic arid deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large
If he is an irredeemable murderer like a blood thirsty tiger he has to quit his terrestrial tenancy
 The Constitution Bench dealing with the 1211 award of death sentence observed
But some at least are diabolical in conception and cruel in execution
In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation
Such murders cannot be simply wished away by finding alibis in the social mal adjustment of the murderer
Prevalence of such crimes speaks in the opinion of many for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society
 After referring to the Law Commission s Report the Court observed A very responsible body has come to the conclusion after considering all the relevant factors
On the conclusions thus offered to us it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest
 I find it difficult to reconcile the law stated by the Constitution Bench with the view expressed by Krishna Iyer J
The judgment delivered by Krishna Iyer J for the Court and the minority judgment of Justice A P Sen have dealt at considerable length with various aspects and desirability or otherwise of imposing a sentence of death
Tile controversy over capital punishment is not new
For several centuries the debate is going on
I am conscious that it is a highly controversial subject on which much can be said on both sides
Fortunately for the Judges it is neither necessary nor desirable to subscribe to one of the two views
All that the Judges are expected to do is to administer the law as it stands
In fact if I am strong believer of abolition of death sentence or supporter of life fol
life  and tooth for tooth  doctrine I would have excused myself from deciding a case involving confirmation of death sentence
Justice Krishna Iyer has not concealed his abhorrence at the infliction of death sentence
He pleads that death sentence should be abolished
He has expressed his view in unmistakable terms Every sombre dawn a human being is hanged by the legal process the flag of human justice shall be hung half mast
Again The right to life and to fundamental freedoms is deprived when he is hanged to death his dignity is defiled when his neck is noosed and strangled
 The Indian cultural current also counts and so does our spiritual chemistry based on divinity in everyone catalysed by the Budha Gandhi compassion This axiom is a vote against death  and hope in life 
 I have great respect for the views of the learned Judge
He is strongly espousing a cause but I feel embarrassed when I am required to follow his views for I consider it is my solemn duty to administer the law of the land as it stands
According to my conception my duty is to administer the law as it stands
It is not for me lo say what the law should be
If I am satisfied that the trial Judge and the 1212 High Court have given special reasons as required under the law it is my duty to confirm the sentence of death
Vide observations of this Court in Ram Narain and ors
vs State of UP1 quoted with approval in Jagmohan s case
I do not feel it necessary to refer to the various points dealt With by Krishna Iyer J in his long and learned essay 
I have quoted in extenso from his judgment and also from the judgment of the Constitution Bench in order to show that the two views are irreconcilable and that I am bound to follow the law laid down by the Constitution Bench
With respect I find myself in complete agreement with the views expressed by the Constitution Bench
I am therefore unable to follow the decision of the Bench
I have discussed the general principles laid down in Rajendra Prasad s case regarding the circumstances that are necessary for the imposition of the death sentence
Apart from being unable to agree with the guidelines prescribed I am of the view that the general principles laid down are not the ratio decidendi of the case
The courts are not bound to follow them
Halsbury s Laws of England 3rd Ed
22 at p 796 explains what ratio decidendi is
The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent
The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi ascertained on a consideration of the judgment in relation to the subject matter of the decision which alone has the force of law and which when it is clear what it was is binding
Statements which are not necessary to the decision which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another court though they may have some merely persuasive efficacy
Decisions upon matters of fact are not binding on any other court
This Court has held that precedents which enunciate rules of law form the foundation of administration of justice under our system
Tribhuvandas vs Ratilal2 It has also been held in Amritsar Municipality vs Hazara Singh3 that the decisions of even the highest court on questions of fact cannot be cited as precedents
Lord Halsbury in Quinn vs Leathem4 said that every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in 1 A I R 2  Bom
L R 73
3 A 1
R 4 1901 A
at p 506 1213 which such expressions arc to be found
The learned Judge proceeds To observe  a case is only an authority for what it actually decides
I entirely deny that it can be quoted for a proposition that may seem to follow logically from it
The courts are not bound by the observations in decisions beyond the point actually decided
The courts can say We cannot know that the House of Lords would carry this determination further than they have carried it
per Best CJ in Fletcher vs Lord Sondesl Applying the principles above quoted I will now proceed to find out what are the points decided in the case and to what extent it will be binding on courts
In Rajendra Prasad s case the three appeals in which death sentences were imposed came up before the Court for consideration of the question whether the death sentence awarded should be confirmed or not
After appreciation of the facts of the case the Court came to the unanimous conclusion that the concerned accused have been found guilty of the offence of murder and confirmed the conviction
Regarding the imposition of the death sentence the majority was of the view that there were no sufficient reasons for imposing the extreme penalty while the minority differed from that conclusion
The principle that can be derived in the case is that on the facts and circumstances established in the case there are not sufficient reasons  for imposing the death sentence
Only to this limited extent if at all is the decision binding on the courts
It is common knowledge that the facts are rarely similar in two cases
The root of the doctrine of precedent is that alike cases must be decided alike
Only then it is possible to ensure that the court bound by a previous case decides the new case in the same way as the other court would have decided it
It is all a question of probabilities but the probability that a court will decide a new case in the same way as would the court which decided one of the cases cited becomes less and less as the differences between the facts of the two cases increase
As every judgment will have to be read as applicable to the particular facts proved will refer to the facts found in Rajendra Prasad s case
The accused in Rajendra Prasad s case a youngman after some years served in prison was released on Gandhi Jayanti Day
Some minor incident ignited his latent feud and he stabbed Ram Bharosey and his friend Mansukh several times and the latter succumbed
He was sentenced to death by the Sessions Court which was confirmed by the High Court
This Court applying the canons which it had laid down came to the conclusion that as nothing on record suggested that Rajendra Prasad was beyond redemption and the record does not 1 1826 3 Bing
501 at p 560 1214 hint that such an attempt was made inside the prison they did not see any special reason to hang him out of corporeal existence
As pointed out earlier I am unable to subscribe to the canons laid down in the case
The utmost to which this case can be considered as an authority is that if in similar circumstances when a person s latent feud gets ignited and stabs two persons several times it would not furnish special reasons for inflicting the extreme penalty
In the second case relating to Kunjukunju the accused cut to death the innocent wife and the immaculate kids in the secrecy of night
The trial court as well as the High Court found it was a deliberate and cold blooded act performed with considerable brutality
The majority expressed its opinion that if the crime alone was the criterion the sentence was proper but if the criminal was the target it was not proper
The Cr
PC requires the courts to take into account the circumstances in which the crime was committed the particulars about the criminal and all relevant circumstances relating to the commission of the crime by the criminal
The trial court is required to give reasons and they are to be scrutinised by the High Court on a reference to it for confirmation of the death sentence
The High Court also has to satisfy itself that there arc special reasons for inflicting the extreme penalty
The view of the majority that the test should be whether Janardanan is a social security risk altogether beyond salvage by therapeutic life sentence is neither in accordance with the requirements of the Cr
PC nor law laid down by this Court
The decisions of this Court insist not only on a consideration of the criminal but also the nature of the crime and all other relevant circumstances
As the view expressed in the case is not in conformity with the decisions of this court it cannot be followed as a precedent
At the most the decision may be taken as authority that in similar circumstances the cutting to death of the innocent wife and the immaculate kids in the secrecy of the night may not amount to special reasons as required under the Cr
In the third appeal the appellant flung the vessels over the division of which the wrangle arose went inside the house emerged armed picked up all altercation eventuating the young man whose age was around 18 or 20 stabbing to death three members of the other branch of the family
He chased and killed excited by the perverted sense of injustice at the partition
The majority was of the view that it is illegal to award capital punishment without considering the correctional possibilities inside the prison
The court was of the view that although the crime was attended with extraordinary cruelty the accused being young and malleable are and their reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual 1215 murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence
Here again it is difficult to agree with the test applied for it is not in conformity with the decisions of this Court or the requirements of the law
If at all it may be an authority only for the proposition that under identical circumstances the stabbing of three persons by a young man in an altercation when he was excited by a perverted sense of injustice would not be special reasons for awarding the extreme penalty
In the case before us the facts are not identical with any of the cases in the appeals
The appellant was released after undergoing a term of imprisonment for the murder of his wife
After release he lived with his cousin Hukam Singh for about six months
The wife and son objected
On the night of the occurrence when he was sleeping with Desa Singh son of Hukam Singh in the outer courtyard and three daughters of Hukam Singh in the inner courtyard at about midnight the petitioner got up inflicted fatal injuries on the son Desa Singh and the two daughters Durga Bai and Veeran Bai and caused grievous injuries to Vidya Bai while they were sleeping the trial court as well as the High Court on a consideration of the entire facts regarding the crime and the criminal came to the conclusion that the appellant acted in a very cruel manner
The victims had no cause to suspect the intentions of the petitioner and went to sleep
Taking advantage of the situation when the victims could not defend the appellant killed three and seriously wounded the fourth
The courts below rightly characterised the offence as heinous and in the circumstances of the case they were of the view that the only appropriate sentence is the extreme penalty
I have no hesitation in agreeing with that conclusion
The facts of the case may have some resemblance to Kunjukunju case in that the accused in that case cut his innocent wife and the kids under the secrecy of the night
But the other circumstances namely his cold calculated and deliberate murder of innocent children of Hukam Singh who had given shelter to him when they were sleeping discloses that the crime is an extremely brutal and heinous one calling for imposition of death sentence I agree with the trial Court and the High Court and find special reasons  required for imposition of death has been clearly made out


Summary:
 HELD Per Sarkaria J The records of this case be submitted to the Hon ble Chief Justice for C constituting a larger Bench which would resolve the doubts difficulties and inconsistencies pointed out by Kailasam J in his order particularly in its last paragraph
Per Kailasam J 1
Before the amendment of Section 3675 of the Code of Criminal Procedure by the Criminal Procedure Code Amendment Act 1955 Act 26 of 1955 was introduced the normal sentence for an offence of murder was death and the lesser sentence was the exception
After the introduction of the amendment it was not obligatory for the court to state the reasons as to why the sentence of death was not passed
By the amendment the discretion of the court in deciding whether to impose a sentence of death or imprisonment for life became wider
The court was bound to exercise its judicial discretion in awarding one or the other of the sentences
By the introduction of Section 3543 of the Code of Criminal Procedure 1973 the normal sentence is the lesser sentence of imprisonment for life and if the sentence of death is to be awarded special reasons will have to be recorded
In other words the court before imposing a sentence of death should be satisfied that the offence is of such a nature that the extreme penalty is called for
1203A C 2
In a number of decisions this court has reiterated the position that under section 3543 of the 1973 Code the court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated
1203D Balwant Singh vs State of Punjab 1976 2 SCR 684 Ambaram vs The State of Madhya Pradesh  and Sarveshwar Prasad Sharma vs Slate of Madhya Pradesh 1978 I SCR 560 referred to
In Jagmohan Singh vs State of UP  in which the constitutional validity of imposition of death sentence was challenged this Court held that the deprivation of life is constitutionally permissible if that is done according to the procedure established by law and that it cannot be held that capital sentence is per se unreasonable and not in the public interest
It was also held that the Judges are invested with very wide discretion in the matter of fixing the degree of punishment and that discretion in the matter of sentence is liable 20 409SCI79 1194 to be corrected by superior courts that exercise of judicial discretion on well recognised principles is in the final analysis the safest possible safeguard for the accused
1204C D 4
Section 3675 of the Criminal Procedure Code which came into force on April 1 1974 after the judgment in Jagmohan Singh s case provides that the judgment shall state the special reasons where a sentence of death is award ed for an offence punishable with death or in the alternative with imprisonments life or imprisonment for a term of years
The requirement that courts should state the special reasons for awarding the death sentence would indicate that the normal sentence for an offence punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered that sentence of death is appropriate on the particular facts of the case it should give special reasons
1204 G H 5
But in Rajendra Prasad vs State of UP   the majority of a Division Bench of this Court held that special reasons necessary for imposing the death penalty must relate not to the crime as such but to the criminal
The death sentence can be awarded only in certain restricted categories where a crime holds out a durable And continuing threat to social security in the setting of a developing country and poses a grave peril to society s survival and when an economic offender intentionally mixes poison in drugs and knowingly and intentionally causes death for the sake of private profit and so on
The decision is in many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh s case
The court in this case has proceeded to make law as regards the conditions that are necessary for imposition of a sentence of death under section 302 IPC and to canalisation of sentencing discretion and has embarked on evolving working rules on punishment bearing in mind the enlightened flexibility of social sensibility
In doing so the Court has exceeded its power conferred on it by law
Courts have no power to legislate and to frame rules to guide the infliction of death penalty
1205C F 6
So far as the enacted law is concerned the duty of the court is to interpret and construe the provisions of the enactment
Courts must take it absolutely for granted that the Legislature has said what it meant and meant what it has said
Judges are not at liberty to add or to take from or modify the letter of the law simply because they have reason to believe the true sentence legis is not completely or correctly expressed by it
Though the courts are free to interpret they are not free to overlook or disregard the constitution and the laws 1207B D 7
It is for the court to administer the law as it stands
In awarding sentence or death the court has to take into consideration the various aspects regarding a crime and the reason for committing the crime and pass the appropriate sentence and if it is death sentence to give reasons as required by the Code of Criminal Procedure
If in deciding a case on particular facts a principle is stated it would be binding as a precedent
If courts resort to rule making it will not be binding as a precedent
If the courts are to embark on rule making the question arises whether the responsibility can be undertaken by a bench of three Judges with majority of 2 1
There is no machinery by which the court could ascertain the views of the various cross sections of the society which is a pre requisite before any law making is resorted to
1195 Rajendra Prasad s ease the court embarked on framing rules prescribing conditions for the imposition of death sentence
The view of the majority that in awarding a sentence the criminal is more important than the crime is not warranted by the law as it stands today
The general principles laid down in Rajendra Prasad s case are not the ratio decidendi of the case
The enunciation of the reasons or the principle on which a question before a court has been decided is alone binding as a precedent
The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi ascertained on a consideration of the judgment in relation to the subject matter of the decision which alone bas the force of law and which when it is clear what It was is binding
Statements which are not necessary to the decision which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another court though they may have merely persuasive efficacy
Decisions upon matters of facts are not binding on any other court 1207G H 1202D F Tribhuvandas vs Ratilal   70 Bom
L R 73 Amritsar Municipality vs Hazara Singh AIR  and Quinn vs Leatham 1901 AC 495 at p 506 referred to
In Rajendra Prasad s case the conclusion of the majority was that as nothing on record suggested that the accused was beyond redemption and since the record did not hint that such an attempt was made inside the prison there was no special reason to award death sentence
The utmost to which this case can be considered as an authority is that if in similar circumstances when a person stabs two persons several times it would not furnish special reasons for inflicting the death penalty
In the second case Kunjukunju the majority was of the view that the test should be whether the accused was a social security risk altogether beyond salvage by therapeutic life sentence was neither in accordance with the requirements of the Code of Criminal Procedure nor law laid down by the Constitution Bench
Therefore it cannot be followed as a precedent
Similarly in the third case Dubey s case also the majority view that it would be illegal to award capital punishment without considering the correctional possibilities inside the prison and that the accused being young and of malleable age and other circumstances bearing on the offender called for the lesser sentence is not in conformity with the decisions of this Court or the requirements of the law
1213H 1214A H 9
In the instant case the appellant was released after undergoing a term of imprisonment for the murder of his wife
After release he lived with his cousin
When his cousin s son and wife objected to his stay with the family he inflicted a fatal injury on the son and two daughters of his cousin when they were asleep and caused grievous injury on another daughter The courts below came to the conclusion that the appellant acted in a very cruel manner
They have rightly characterised the offence as heinous and held that the only appropriate sentence was the extreme penalty of death
The trial court and the High Court were right in their conclusions
1215 C E Rajendra Prasad s case cannot be treated as a binding precedent yet as it is a decision of a division bench of this Court
The papers were directed to be placed before the Hon ble the Chief Justice for constituting a larger bench to decide the case