Criminal Appeal No 12 of 1979
Appeal by Special Leave from the Judgment and order dated the 6th October 1978 of the Punjab and Haryana High Court in Criminal Appeal No 735 of 1978 and Murder Reference No 678
1065 Frank Anthony and Sushil Kumar for the Appellants
R section Sondhi and Hardev Singh for the Respondent
The Judgment of V R Krishna Iyer and D A Desai JJ was delivered by Krishna Iyer J A P Sen J gave a dissenting opinion
KRISHNA IYER J Death sentence on death sentence is Parliament s function
Interpretative non application of death sentence when legislative alternatives exist is within judicial jurisdiction
The onerous option to spare the lives of the appellants to be spent in prison or to hand them over to the hangman to be jettisoned out of terrestrial life into the undiscovered country from whose bourn no traveller returns is the crucial function this Court has to exercise in the present appeal
Sir Winston Churchill in his oft quoted observation said The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country
1 Without academic aura and maukish sentimentalism the court has to rise to principled pragmatism in the choice of the penal strategy provided by the Penal Code
The level of culture is not an irrelevant factor in the punitive exercise
So we must be forwarned against deeply embedded sadism in some sectors of the community demanding retributive death penalty disguised as criminal justice a trigger happy pathology curable only by human rights literacy
But the dignity of man a sublime value of our Constitution and the heart of penological humanisation may find expression through culturisation of the judicial art of interpretation and choice from alternatives
If the court reads the text of section 302 Penal Code englightened by the fundamental right to life which the Father of Nation and the  founding fathers of the Constitution made manifest the judicial oath to uphold the Constitution will unfold profound implications beyond lip service to Form VIII of the Third Schedule and this lofty obligation and cultural constitutional be hest validates our exploration of the meaning of meanings wrapped in the uncharted eitheror of the text of section 302 IPC
It is right to state to set the record straight that this Court has in Rajendra Prasad s case3
 exposed the disutility and counter culture of an obsolescent obsession with crime as distinguished from crime doer and the sentencing distortion that develops almost into a paranoid preoccupation with death dealing severity as the saviour of society in the land of the 1 Sentencing and Probation National College of the State Judiciary Reno Neveda p68
2 Acharya Kripalani and the Lok Nayak have condemned death penalty publicly 3 1979 3 SCR78
12 409 SCI79 1066 Buddha and the Mahatma and in a world where humanity has protested against barbaric executions by State agencies even with forensic rites  Courts read the Code not in judicial cloisters but in the light of societal ethos
Nor does the humanism of our Constitution holistically viewed subscribe to the hysterical assumption or facile illusion that a crime free society will dawn if hangman and firing squads were kept feversishly busy
We may remind the intractable retentionists that the British Royal Commission after studying statistics from six abolitionist countries namely Switzerland Belgium
The Netherlands Norway Sweden and Denmark observed The evidence that we ourselves received in these countries was to the effect that released murderers who commit further crimes of violence are rare and those who become useful citizens are common No Indian is innocent of the insightful observations of the Father of the Nation over 40 years ago in the Harijan   I do regard death sentence as contrary to ahimsa
Only he takas life who gives it
All punishment is repugnant to ahimsa
Under a state governed according to the principles of ahimsa therefore a murderer would be sent to a penitentiary and there given every chance of reforming himself
All crime us a kind of disease and should be treated as such
l With this exordial exercise we may get back to the macabre episode in this appeal which has blown up into four murders typical of the syndrome of village violence triggered off by tremendous trifles when viewed in retrospect
When a psychic stress left to smoulder and r flame up is fuelled by factions and firearms social irritants and economic discontents ubiquitous in rural India it suddenly flares as showdowns and shootings taking many precious lives in haywire fury
The solution for explosive tensions and return to tranquility is curing the inner man through proven meditational mental moral neural technology elimination of social provocation and economic injustice and of addiction to inebriants which dement the consumer
Timely vigilance of policing agencies to nip in the bud burgeoning confrontations and prompt and potent enforcement of the Arms Act the failure to do which makes weapons freely available also account for escalating violence
social autospsy of murders is more significant than the medical post mortem of cadavers or the forensic close up of crime after it has occurred
The escapation of violence cannot be arrested l Harijan March 19 1937 1067 by inert police presence going into action after tragic clashes but only A by a holistic ministering to the inner man as well as collective consciousness
It is obvious yet obscure that a crime firee society is beyond the gift of severe judges or heavy handed policemen
And the myopic view that public cxecutions backed by judicial sentence s will perform the funeral of all criminals and scare away potential offenders is a die hard superstition of sociologically and psychologically illiterate legalism which sacrifices cultural values conveniently turns away from the history of the futility of capital penalty over the ages and unconsciously violates the blobal reality that half the world has given up death penalty de jure or de facto without added calamity and the other half is being educated out of this State practised lethal violence by powerful human rights movements at once secular and spiritual
These observations not meant to be polemical or pontifical gain functional relevance as we proceed to narrate the minimal facts as found by the High Court since we have set our face against reopening evidentiary re appreciation after concurrent findings have already been rendered by the courts below
Punjab villagers are good agriculturists and know the value or water for golden harvests
The scene of the four murders the victims and the villians the main witnesses to the case and the prosecution scenario take us to the village Sarhali Mandan in Amritsar District which has irrigation facilities and consequent irritation potential
A new scheme regulating the turns for taking irrigation water was introduced about the time of occurrence which affected the accused and benefitted Kapur Singh a leading prosecution witness
This switch in irrigationed turn sparked off friction Had it been wholesomely resolved by imaginative official handling this murder perhaps could have been obviated
Many murders in the Punjab have been caused by social bungling regarding of water which tragically convert the passion for production of the farmer into passion for removal of the obstructor by murder
Governments have some times been deaf and dumb about this etiology
A stitch in time saves nine is good criminology
Away the dispute on the turn of water between the two was settled by a patchwork mediation which did not finally extinguish the fires of fury earlier ignited
For a group mainly of prosecution witnesses was making merry with alcohol in the afternoon of October 13 1977 at the house of Karaj Singh a prosecution witness when one of the appellants Jarnail Singh went in
His unwelcome presence resulted in frayed tempers heated tantrums and beating of the 3rd appellant
The latter bent on reprisal for the flagellation and humiliation waited till sundown 1068 and returned armed with friends and weapons from outside
Abuses were the provocative invitation for the fracas
The tipsy response brought the opposite party out
Jarnail Singh the 3rd appellant who was the victim of the earlier beating ignited the attack by instigation and his party went into violent action
Guns boomed dangs dived three men and later a fourth feel dead and the curtain was drawn after the catastrophe was complete
Probably the accused party was also drunk
And alcohol makes men beside themselves and buries sanity
The role of intoxicating drinks and drugs in aggressive behaviour and explosive crime has not been the subject of sufficient criminological research in the country
Impressionistically speaking half of violent crime explosive sex and reckless driving has its kick  in alcohol and the gains of prohibition  have new dimensions
That apart in the case on hand the High Court analysed the evidence liberally applied the rule of benefit of doubt and climaxed its judgments with sentences of death and imprisonment for life on the various accused who were eventually held guilty
We are concerned only with those who received capital penalty and the court expressed itself thus on this momentous issue of death sentence As both Dalbir Singh and Kulwant Singh accused fired at Jagir Singh Sardul Singh and Piara Singh who were absolutely unarmed recklessly and without provocation of any kind the sentence of death awarded to each of them by the learned Additional Sessions Judge is also hereby affirmed
 We propose to deal only with this punitive crisis limited to its lethal aspect
The judgment under appeal is a hint of the judicial confusion even in this grave area of death penalty
True the jurisprudence of sentencing in Free India has been a Cinderella and the values of our Constitution have not adequately humanized the punitive diagnostics of criminal courts which sometimes though rarely remined us of the torturesome and trigger happy aberrations of the Middle Ages and some gory geographic segments soaked in retributive blood and untouched by the correctional karuna of our constitutional culture
But after Ediga Annama s casel the law of punishment under section 302 IPC has been largely settled by this Court and the High Courts are bound thereby
Rajendra Prasad s case supra and Bishnu Deo Shaw s2 case have indubitably laid down the normative cynosure 1 1974 4 SCC443 2  1069 and until over ruled by a larger bench of this court that is the law of A the land under article 141
To discard it is to disobey the Constitution and such subversiveness of the rule of law in a crucial area of life and death will spell judicial disorder
One thing is clear
Counting the casualties is not the main criterion for sentencing to death nor recklessness in the act of murder
The sole focus on the crime and the total farewell to the criminal and his social personal circumstances mutilate sentencing justice
We express ourselves in this explicit fashion since the deep rooted Raj criminological prejudices still haunt Free India s courts and govern our mentations from the grave
To day the law is what Rajendra Prasad supra in its majority judgment has laid down and that has been done at unmistakable length Willy nilly that binds judges and parties alike
The problem in the present case going by those canons is easy of resolution
Death sentence in this case is indefensible
We can surely understand how the courts below have fallen into this fatal error
The forensic exercise at the sentencing stage despite the purposeful section 2352 CrPC has been a functional failure because of the casual way the punishment factors are dealt with as if the nature of the crime was the sole determinant of the punishment
We have explained in Rajendra Prasad s case how the prosecution must make out by special factors why me graver penalty should be inflicted
Evidence may be led and arguments addressed by both sides but in practice b 2352 has been frustratingly ritualised
Nor do we think that the court s attention been drawn to Ediga Annamma s case
The two recent decisions of this Court could not have been within the ken of the Court because they were delivered later
Be that as it may one has only to read the ratio in these three cases side by side with facts of the present case to hold that death Ir penalty is unmerited
Here the earlier provocation came from the deceased s side by beating up Appellant No 3
The parties including the prosecution group were tipsy
There had been antecedent irrigation irrigation between them
There was no prepalanned well laid attack hell bent on liquidating the enemy
A quarrel over turn af water a pacification pro tempore an afternoon exuberance with jocose and bellicose potions beating up one appellant leading to a reprisal vi et armis
In Rajendra Prasad s case supra the court in its majority judgement observed It is not the number of deaths caused nor the situs of the stabs that is telling on that decision to validate the non 1070 application of its ratio
It is a mechanistic art which courts the cadavers to sharpen the sentence oblivious of other crucial criteria shaping a dynamic realistic policy of punishment
Three deaths are regrettable indeed terrible
But it is no social solution to add one more life lost to the list
In this view we are satisfied that the appellant has not received reasonable consideration an the question of the appropriate sentence
The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment
A family feud an altercation a sudden passion although attended with extra ordinary cruelty young and malleable age reasonable prospect of reformation and absence of any conclusive circumstances that the assailant is a habitual murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence
 The other criteria have been set out at some length in the same judgment and going by them there is hardly any warrant for judicial extinguishment of two precious Indian lives
Section 302 of the Penal Code read with Section 3543 of the Criminal Procedure Code demands special reasons for awarding the graver sentence and to borrow the reasoning in Rajendra Prasad s case Special reasons  necessary for imposing death penalty must relate not to the crime as such but to the criminal
The crime may be shocking and yet the criminal may not deserve death penalty
The crime may be less shocking than other murders and yet the callous criminal eg a lethal economic offender may be jeopardizing societal existence by his act of murder
Likewise a hardened murderer or dacoit or armed robber who kills and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to cur rent psycho therapy or curative techniques may deserve the terminal sentence
Society survives by security for ordinary life
If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand penalty dependent on the totality of circumstances
 1071 We see no need to expand on the narrow survival of death sentence in our Code confined to those exceptional situations explained in Rajendra Prasad s case
It is heartening though unheeded that the framers of the Code themselves state d We are convinced that the Death penalty should be very sparingly inflicted
To a great majority of mankind nothing is so dear as life
  Death sentence on death sentence is the upsurge of world opinion and Indian cultural expression
In Shanti Parva of the Mahabharata Prince Satyavana in the discussion on the capital penalty says Destruction of the individual by the king can never be a virtuous act
By killing the wrong doer the king kills a large number of innocent persons wife father mother and children are killed
A wicked person is seen to imbibe good conduct from a pious person
Good children spring from wicked persons
The extermination of the wicked is hot in consonance with eternal law
2 while such unanimity in sublimity may not by itself repeal the legislated text judicial dispensers do not behave like cavemen but breath the fresh air of finer culture
The sentences of death in the present appeal are liable to be reduced to life imprisonment
We may add a footnote to the ruling in Rajendra Prasad s case
Taking the cue from the English legislation on abolition we may suggest that life imprisonment which strictly means imprisonment for the whole of the man s life but in practice amounts to incarceration for a period between 10 and 14 years may at the option of the convicting court be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large
This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder
G Another sombre fact of history not often stressed in court sentences save by judges like Douglas and Thurgod Marshall is that the gallows swallow in most cases the social dissenter the political 1 Indian Penal Cod Objects and reasons
2 Chapter 13 ShantiParva Mahabharata translated by Shri K G Subrahmanyam Advocate in Can The State kill its Citizens Pub
by M L J Office Madras
1072 protester the poor and the under priviliged the member of minority groups or one who has turned tough because of broken homes parental neglect or other undeserved adversities of childhood or later
And a sobering thought which eminent judge and jurist M C Chagla told the country over the national TV the other day judicial error leading to innocent men being executed in not too recondite a reality
Evidence in court and assessments by judges have human limitations
It is worth recalling that a Full Bench of the Madras High Court in Athapa Goundan s case AIR 1937 Mad 695 sentenced him to death
He was duly executed as also several others on the ratio of that ruling
This Full Bench decision was however over ruled 10 years later by the Privy Council in Had it been done before Goundan was gallowed many judicial hangings could have been halted
But dead men tell no tales and judicial guilt  has no temporal punishment
Parenthetically it may be right to observe before we conclude that modern neurology has unrevelled through research the traumatic truth that agressive behaviour even brutal murder may in all but not negligible cases be traced to brain tumour
In such cases cerebral surgery not hanging until he is dead is the rational recipe
This factor is relevant to conviction for crime but more relevant to the irrevocable sentence of death
We allow the appeal in regard to appellants Nos
One and Two and reduce their death sentence to one of life imprisonment
SEN J
I do not see any reason to differ from the view expressed by me in my dissenting opinion in Rajendra Prasad s case 
I Still adhere to the view that it is not within the province of the Court while dealing with an appeal confined to sentence under Art 136 to curtail the scope of death sentence under section 302 IPC 1860 nor is it constitutionally or legally permissible for this Court while hearing such an appeal to lay down that on grounds of compassion and humanism the sentence of death on a conviction for murder under section 302 as a rule of universal application be substituted by a sentence of imprisonment for life irrespective of the gravity of the clime as the surrounding circumstances ie virtually abolish the extreme penalty
The question of abolition of capital punishment is a difficult and controversial subject long and hotly debated and it has evoked during the past two centuries strong conflicting views as was pointed out by me in Rajendra Prasad s case supra
The question whether 1  1073 the scope of death sentence should be curtailed or not is for the Parliament to decide
The matter is essentially of political expediency and as such it is the concern of the statesman and therefore the domain of the Legislature and not the Judiciary
Section 302 IPC 1860 confers upon the Court a discretion in the matter of the punishment to be imposed for an offence of murder and the Court has to choose between a sentence of death and a sentence of imprisonment for life while under section 3543 CrPC 1973 the Court is enjoined with a duty to record special reasons  in case the extreme penalty is awarded
But the question whether the death sentence should be awarded or not must in my view be left to the discretion of the Judge trying the accused and the question of sentence must depend upon the facts and circumstances obtaining in such case
When a sentence of death is passed it is subject to confirmation by the High Court under section 3661 of the Code and the accused also has right of appeal to the High Court under 5
3742 against the sentence
Thereafter an appeal lies to this Court by special leave under article 136 on the question of sentence
It would therefore be manifest that it is neither feasible to define nor legally permissible for this Court to limit or circumscribe the connotation of the expression special reasons  occurring in section 3543 of the Code so as to bring about a virtual abolition of the death sentence
E With greatest respect the majority decision in Rajendra Prasad s case supra does not lay down any legal principle of general applicability
A decision on a question of sentence depending upon the facts and circumstances of a particular case can never be regarded as a binding precedent much less law declared  within the meaning of article 141 of the Constitution so as to bind all Courts within the territory of India
According to the well settled theory of precedents every decision contains three basic ingredients i findings of material facts direct and inferential
An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts ii statements of the principles of law applicable to the legal problems disclosed by the facts and iiijudgment based on the combined effect of i and ii above
H for the purposes of the parties themselves and their privies ingredient No iii is the material element in the decision for it determines 1074 finally their rights and liabilities in relation to the subject matter of the action
It is the judgment that estops the parties from reopening the dispute
However for the purposes of The doctrine of precedents ingredient No ii is the vital element in the decision
This indeed is the ratio decidendil
It is not every thing said by a Judge when giving judgment that constitutes a precedent
The only thing in a Judge decision binding party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi
In the leading case of Qualcast Wolverhampton Ltd vs Haynes2 it was laid down that the ratio decidendi may be defined if a statement of law applied to the legal problems raised by the facts is found upon which the decision is based
The other two elements in the decision are not precedents
The judgement if not binding except directly on the parties themselves nor are the findings of facts
This means that even where the direct facts of an earlier case appear to be identical to those of the case before the Court the Judge is not bound to draw the same inference as drawn in the earlier case One would find that in the decision in Rajendra Prasad s case there are no rationes decidendi much less any ratio decidendi
In a minority opinion I emphasised the need for judicial restraint and the duty to avoid encroachment on the powers conferred upon Parliament
In my view the assessment of public opinion on this difficult anl complex question was essentially a legislative not a judicial function
The majority expressed their personal distaste for the capital punishment butteressed by the belief that it served no useful purpose
They asserted that the capital punishment was morally unacceptable to the contemporary society and found it shocking to their conscience and sense of justice
The deliberate extinguishment of human life by the State for an offence of murder they reasoned on metaphysical theories of punishment was a denial of human dignity
They concluded by stating that the death penalty was usually inflicted only on a few ie the poor and down trodden who are outcastes of a society which led to the irresistible inference that the punishment was not fairly applied
This may be a progressive  stance which is out of place in a judicial pronouncement which ought to be based on the facts and circumstance of the case and the law applicable
But the professed view does not stem from a firm belief in dignity of human life for they themselves advocate the death penalty for certain classes of offenders I R J Walker  M G Walker The English Legal System Butterworths 1972 3rd Edn pp 123 124
2 L R 1075 namely I white collar offenders 2 anti social offenders and 3 hardened murderers
This show that the majority was not against the capital punishment in principle
On the facts before them they commuted the sentence of death to a sentence of imprisonment for life and the decision cannot therefore be construed as laying down a ratio decidendi
Testing the majority decision in Rajendra Prasad s case supra in light of theory of precedents as expounded above it seems to me clear that it does not lay down many legal principle applied to any legal problem disclosed by the facts and therefore the majority decision cannot be said to have declared any law  within the meaning of article 141 so as to bind all Courts in the country
General observations made in the context of sentencing jurisprudence will have to be regarded as the view of the JudgeJudges concerned and not law declared by this Court under article 141 of the Constitution
And attempt to limit or circumscribe the connotation of special reasons  mentioned in section 3543 of the Code of Criminal Procedure by indulging in classification of murders such as white collar offences and non white collar offences or laying down so called guidelines for imposition of the extreme penalty would amount to unwarranted abridgement of the discretion legally vested in the trial court and constitutionally upheld by this Court
If the general observations on sentencing jurisprudence made in Rajendra Prasad s case supra are to be regarded as law declared By this Court  within the meaning of article 141 so as to bind all Court s in the country then the observation or the so called guideline as to the effect  special reasons  necessary for imposing death penalty must relate not to the crime as such but to the criminal occurring in the majority judgment it must be pointed out if I may say so with respect would be unwarranted and contrary to section 302 of the Indian Penal Code read with section 3543 of the Code of Criminal Procedure
Section 302 of the Indian Penal Code gives a choice while section 3543 of the Code merely requires special reasons  to the indicated for imposing the death penalty
Nothing is stated whether the special reasons  should relate to the criminal or the crime
In the absence of any specific indication in that behalf special reasons  would relate both to the crime and the Criminal
Previously perhaps more attention was being paid to the nature gravity and the manner of committing the crime though extenuating factors concerning the criminal his age criminal tendencies etc
were not ignored
In the majority judgment in Rajendra Prasad s case supra nothing new has been said except that more emphasis on factors concerning the criminal is indicated
But in the great enthusiasm for doing so the pendulum has swung to 1076 the other extreme and the guideline given is that the special reasons  must relate not to the crime as such but to the criminal for which there is no warrant in section 3543 of the Code of Criminal Procedure
I may also venture to say the obsession to get the death penalty abolished from the Statute Book ie Indian Penal Code 1860 is so great that an interdict against it is surprisingly spelt out from the Constitution itself because right to life has been regarded as very valuable sacrosanct and fundamental  therein though in Jagmohan Singh s case1 this Court by unanimous judgment of five Judges held that the death penalty and the judicial discretion vested in the Court regarding its imposition on an accused are constitutionally valid
That decision it may incidentally be pointed out has adverted to the well settled principles which have all these years governed the exercise of proper judicial discretion
In my view therefore so long as the extreme penalty is retained on the Statute Book it would be impermissible for any Judge to advocate its abolition in judicial pronouncements
The forum for that is elsewhere
There is increasing concern today about the judiciary transgressing its limits by usurping the function of the legislature
Many critics think that the courts should apply  but not make  the law and that they should not intrude into the field of policy making
The problem appears to the also acute in the United States of America
In a recent article a learned writer2 views the complex situation with deep concern stating Today many Americans do resent all ever more activist judiciary
Beware warns a vocal group of scholars The Imperial Presidency might have faded but now an Imperial Judiciary has the Republic in its clutches   Emphasis supplied 
 He then goes on to say For all their power Judges remain remarkably unaccountable and unknown Mr Justice Robert Jackson Associated Justice of the Supreme Court of the United States in the Roosevelt and Truman years delineates the correct picture We are not final because we are infallible but we are infallible because we are final
 In the end that means relying on Judges themselves to exercise self restraint
1  2 Evan Thomas Have the Judges Done Too Much Time Essay Time January 22 1979 pp
49 SO
1077 Reverting to the appeal before me I cannot say that the award of death sentence to any of the two appellants Dalbir Singh and Kulwant Singh was not proper or uncalled for
Though the dispute was over the turns of water  that would hardly furnish any jutification for the commission of the pre planned triple murder
The appellant Dalbir Singh fired two gun shots hitting the deceased Sardul Singh on the chest resulting in his instantaneous death
When the deceased Jagir Singh stooped forward to lift Sardul Singh he was fired at by the appellant Kulwant Singh with his gun which hit him on the forehead
This also resulted in his immediate death
When the deceased Piara Singh came forward to rescue Jagir Singh both the appellant Kulwant Singh and Dalbir Singh again fired at him from their guns as a result of which he fell down and succumbed to his injuries on the spot
Thereafter both the appellants continued firing their guns at the complainant s party and Kapoor Singh PW 14 and no other alternative but to bring out his licensed gun from his house
Thereupon both sides started firing and a number of persons sustained gun shot injuries on their person
Baga Singh lambardar of the village in the midst of this firing appeared on the scene and made an attempt to pecify both the sides but he also received gun shot injuries as a result of which he died two days later
The dastardly act of the appellants resulted in the loss of three precious lives
That leaves out of account the fourth Baga Singh who made a dying declaration that he had also been shot by the appellants but the High Court felt that he might have been caught between the cross fire which subsequently ensued after the three had fallen
These were nothing but intentional coldblooded and brutal murders
In my view the High Court was justified in confirming the death sentences passed under section 368a of the Code being satisfied that there were special reasons within the meaning of section 354 sub section
3 of the Code of Criminal procedure 1973 I would say that on the facts and circumstances of the case the award of death sentence to the two appellants was neither erroneous in principle  nor was arbitrary or excessive  or indicative of an improper exercise of discretion 
nor my part I have no sympathy for these trigger happy gentlemen and the sentence imposed on them is well merited
I would therefore dismiss the appeal leaving the appellants to Executive clemency
NVK Appeal allowed


Summary:
There was a dispute between the appellants and the complainant s party over the turns of water  for irrigation of their agricultural lands
The dispute was settled by a patchwork mediation but it was of no avail
On the fateful day the complainant s party were making merry with alcohol in the house of the prosecution witness when the 3rd appellant joined them
His unwelcome presence resulted in frayed tempers and beatings of the 3rd appellant
The latter bent on reprisal for the flagellation and humilation waited till sundown and returned armed with friends and weapons
He ignited the attack by instigation and the 1st and 2nd appellants fired with their guns as a result of which 3 members of the complainants  party died on the spot
At this situation PW 14 brought out his licensed gun from his house and thereupon both sides started firing and a number of persons sustained gun shot injuries on their person
In the midst of this firing the lambardar of the village appeared on the scene and made an attempt to pacify both the sides but he also received gun shot injuries as a result of which he died two days later
A fourth person made a dying declaration that he had been shot by the appellants
The Sessions Court held the appellants guilty under Section 302 IPC and sentenced them to death and the High Court on appeal confirmed the sentence
Allowing the appeal to this court  HELD Per Krishna Iyer  Desai JJ 1
Death sentence on death sentence is Parliament s function
Interpretative non application of death sentence when legislative alternatives exist is within judicial discretion
1065B 2
The dignity of man a sublime value of the Constitution and the heart of penelogical humanisation may find expression through culturisation of the judicial art of interpretation and choice from alternatives
If the Court reads the text of section 302 Penal Code enlightened by the fundamental right to life which the Founding Fathers of the Constitution made manifest the judicial oath to uphold the Constitution will unfold profound implications 1060 beyond lip service to Form VIII of the Third Schedule and this lofty obligation and cultural Constitutional behest validates the exploration of the meaning of meanings wrapped in the uncharted eitheror of the text of section 302 IPC
1065E F 3
Courts read the Code not in judicial cloisters but in the light of societal ethos
Nor does the humanism of our Constitution holistically viewed subscribe to the hysterical assumption or facile illusion that a crime free society dawn if hangman and firing squads were kept feverishly busy
1066A B 4
The myopic view that public executions backed by judicial sentences will perform the funeral of all criminals and scare away potential offenders is a die hard superstition of sociologically and psychologically illiterate legalism which sacrifices cultural values conveniently turns away from the history of the futility of capital penalty over the ages and unconsciously violates the global reality that half the world has given up death penalty de jure or de facto without added calamity and the other half is being educated out of this State practised lethal violence by powerful human rights movements at once secular and spiritual
1067B C 5
The jurisprudence of sentencing in Free India has been a Cinderella and the values of our Constitution have not adequately humanised the punitive diagnostics of criminal courts which sometimes though rarely remind us of the torture some and trigger happy aberrations of the Middle Ages and some gory geographic segments soaked in retributive blood and untouched by the correctional karuna of our Constitutional culture
1068G 6
After Ediga Annamas s case  the law of punishment under section 302 IPC has been largely settled by this court and the High Courts are bound thereby
1068H 7
Rajendra Prasad s case  and Bishnu Deo Shaw s case 1979 3 SCR p 355 have indubitably laid down the normative cynosure and until over ruled by a larger bench of this court that is the law of the land under article 141
To discard it is to disobey the Constitution and such subversiveness of the rule of law in a crucial area of life and death will spell judicial disorder
Today the law is what Rajendra Prasad in its majority judgment has laid down and that has been done at unmistakable length
Willy nilly that binds judges and parties alike
1068H 1069A 1069C 8
Counting the casualties is not the main criterion for sentencing to death nor recklessness in the act of murder
The sole focus on the crime and the total farewell to the criminal and his social personal circumstances mutilate
sentencing justice
1069B 9
The forensic exercise at the sentencing stage despite the purposeful section 2352 Cr
PC has been a functional failure because of the casual way the punishment factors are dealt with as if the nature of the crime was the sole determinant of the punishment
In Rajendra Prasad s case it has been explained how the prosecution must make out by special factors why the graver penalty should be inflicted
Evidence may be led and arguments addressed by both sides but in practice section 2352 has been frustratingly ritualised
1069D E 1061 10
Section 302 of the Penal Code read with section 3543 of the Criminal Procedure Code demands special reasons four awarding the graver sentence
1070El ll
Taking the cue from the English legislation on abolition the majority opinion suggested that life imprisonment which strictly means imprisonment for the whole of the man s life but in practice amounts to incarceration for a period between 10 and 14 years may at the option of the convicting court be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large
This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder
1071F G 12
The gallows swallow in most cases the social dissenter the political dissenter the poor and the under privileged the member of minority groups or one who has turned tough because of broken homes parental neglect or other undeserved adversities of childhood or later
Judicial error leading to innocent men being executed is not too recondite a reality
Evidence in Court and assessments by judges have human limitation
1071H 1072Bl 13
A Full Bench of the Madras High Court in Athapa Goundan s case AIR 1937 Mad
695 sentenced him to death
He was duly executed as also several others on the ratio of that ruling
This Full Bench decision was however over ruled ten years later by the Privy Council in Had it been done before Goundan was gallowed many judicial hangings could have been halted
1072C A In the instant case the earlier provocation came from the deceased s side by beating up Appellant No 3
The parties including the prosecution group were tipsy
There had been antecedent irrigation irritation between them
There was no pre planned well laid attack hell bent on liquidating the enemy
1069E B The sentences of death in the present appeal are liable to be reduced to life imprisonment
1071E Per Sen J dissenting 1
The question of abolition of capital punishment is a difficult and controversial subject long and hotly debated and it has evoked during the past two centuries strong conflicting views
1072H 2
The question whether the scope of death sentence should be curtailed or not is for the Parliament to decide
The matter is essentially of political expediency and as such it is the concern of the statesmen and therefore the domain of the Legislature land not the Judiciary
1073A 3
It is not within the province of this Court while dealing with an appeal confined to sentence under article 136 to curtail the scope of death sentence under section 302 l
PC 1860 nor is it constitutionally or legally permissible for this Court while hearing such an appeal to lay down that on grounds of compassion and humanism the sentence of death on a conviction for murder under section 302 as a rule of universal application be substituted by a sentence 1062 of imprisonment for life irrespective of the gravity of the crime and the surrounding circumstances ie virtually abolish the extreme penalty
1072G 4
Section 302 IPC 1860 confers upon the Court a discretion in the matter of the punishment to be imposed for an offence of murder and the Court has to choose between the sentence of death and a sentence of imprisonment for life while under section 3543 Cr PC 1973 the Court is enjoined with a duty to record special reasons  in case the extreme penalty is awarded
But the question whether the death sentence should be awarded or not must be left to the discretion of the Judge trying the accused and the question of sentence must depend upon the facts and circumstances obtaining in each case
A sentence of death when passed is subject to confirmation by the High Court under section 3661 of the Code
The accused also has a right of appeal to the High Court under section 3742 against the sentence
Thereafter an appeal lies to this Court by special leave under article 136 on the question of sentence
It would therefore be manifest that it is neither feasible to define nor legally permissible for this Court to limit or circumscribe the connotation of the expression special reasons  occurring in section 3543 of the Code so as to bring about a virtual abolition of the death sentence
1073B E 5
A decision on a question of sentence depending upon the facts and circumstances of a particular case can never be regarded as a binding precedent much less law declared  within the meaning of article 141 of the Constitution so as to bind all courts within the territory of India
1073F 6
According to the well settled theory of precedents every decision contains three basic ingredients i findings of material facts direct and inferential
An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts ii statements of the principles of law applicable to the legal problems disclosed by the facts iii Judgment based on the combined effect of i and ii
For the purposes of the parties themselves and their privies ingredient No iii is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action
It is the judgment that estops the parties from reopening the dispute
However for the purposes of the doctrine of precedents ingredient No ii is the vital element in the decision
This indeed is the ratio decidendi
It is not everything said by a judge when giving judgment that constitutes a precedent
The only thing in a judge s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the radio decidendi
1073G 1074B 7
The ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found upon which the decision is based
The other elements in the decision are not precedents
1074C Qualcast Wolverhampton Ltd vs Haynes LR 1959 AC 743 referred to
Even where the direct facts of an earlier case appear to be identical to those of the case before the Court the Judge is not bound to draw the same inference as drawn in the earlier case
1074D 1063 9
There are no rationes decidendi much less any ratio decidendi in Rajendra Prasad s case
1074 E i In the minority opinion the need for judicial restraint was emphasised and the duty to avoid encroachment on the powers conferred upon Parliament
The assessment of public opinion on this difficult and complex question was essentially a legislatives not a judicial function
1074El ii Buttressed by the belief that Capital punishment served no useful purpose the majority asserted that it was morally unacceptable to the contemporary society and found it shocking to their conscience and sense of justice
The deliberate extinguishment of human life by the State for an offence of murder was a denial of human dignity and the death penalty was usually inflicted only on a few ie the poor and downtrodden who are outcasts of a society which led to the irresistible inference that the punishment was not fairly applied
1074F iii This may be progressive  stance which is out of place in a judicial pronouncement which ought to be based on the facts and circumstances of the case and the law applicable
But the professed view does not stem from a firm belief in dignity of human life for the death penalty is advocated for certain classes of offenders namely l white collar offenders 2 anti social Offenders and 3  hardened murderers
This shows that the majority was not against the capital punishment in principle
1074G 1075A iv on the facts the majority commuted the sentence of death to a sentence of imprisonment for life and the decision cannot therefore be construed as laying down a ratio decidendi
1075B 10
The majority decision tested in the light of the theory of precedents clearly does not lay down any legal principle applied to any legal problem disclosed by the facts and therefore the majority decision cannot be said to have declared any law  within the meaning of article 141 so as to bind all courts in the country
General observations made in the context of sentencing jurisprudence will have to be regarded as the view of the Judge Judges concerned and not law declared by this court  under article 141 of the Constitution
Any attempt to limit or circumscribe the connotation of special reasons  mentioned in section 3543 of the Code of Criminal Procedure by indulging in classification of murders such as white collar offences and nonwhite collar offences or laying down so called guidelines for imposition of the extreme penalty would amount to unwarranted abridgement of the discretion legally vested in the trial court and constitutionally upheld by this Court1075C D 11
If the general observations on sentencing jurisprudence made in Rajendra Prasad s ease are to be regarded as law declared by this Court  within the meaning of article 141 so as to bind all courts in the country then the observation or the so called guidelines to the effect  special reasons  necessary for imposing death penalty must relate not to the crime as such but to the criminal occurring in the majority judgment it must be stated would be unwarranted and contrary to s 302 of the Indian Penal Code read with section 3543 of the Code of Criminal Procedure
1075E F 1064 12
section 302 of the IPC gives a choice while section 3543 of the Code merely requires special reasons  to be indicated for imposing the death penalty
Nothing is stated whether the special reasons  should relate to the criminal or the crime
In the absence of any specific indication in that behalf special reasons  would relate both to the crime and the criminal
Previously perhaps more attention was being paid to the nature gravity and the manner of committing the crime though extenuating factors concerning the criminal his age criminal tendencies etc
were not ignored
1075G 13
In the majority judgment in Rajendra Prasad s case nothing new has been said except that more emphasis on factors concerning the criminal is indicated
But in the great enthusiasm for doing so the pendulum has swung to the other extreme and the guideline given is that the special reasons  must relate not to the Crime as such but to the criminal for which there is no warrant in section 3543 of the Code of Criminal Procedure
1075H 1076A 14
The obsession to get the death penalty abolished from the Statute Book ie Indian Penal Code 1860 is so great great an interdict against it is surprisingly spelt out from the Constitution itself because right to life has been regarded as very valuable sacrosanct and fundamental  therein though in Jagmohan Singh s case 11973 1 SCC 20 a constitution bench of this Court unanimously held that the death penalty and the judicial discretion vested in the Court regarding its imposition on an accused are constitutionally valid
1076B C 15
So long as the extreme penalty is retained on the Statute Book it would be impermissible for any Judge to advocate its abolition in judicial pronouncements
The forum for that is elsewhere
1076D a In the instant case it cannot be said that the award of death sentence to any of the two appellants was not proper or uncalled for
Though the dispute was over the turns of water  that would hardly furnish any justification for the commission of the pre planned triple murder
The dastardly act of the appellants resulted in the loss of three precious lives
These were nothing but intentional cold blooded and brutal murders
1077A E b The High Court was justified in confirming the death sentence passed under section 368a of the Code being satisfied that there were special reasons within the meaning of section 354 sub section
3 of the Code of Criminal Procedure 1973
1077A c On the facts and circumstances of the case the award of death sentence to the two appellants who were trigger happy gentlemen was neither erroneous in principle  nor was arbitrary or excessive  or indicative of an improper exercise of discretion  and is well merited
1077G