Summarize the following court judgment. : 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. 6/78. 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 either/or of the text of section 302 I.P.C. It is right to state	 to set the record straight	 that this Court has in Rajendra Prasad 's case(3). 	 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 p.68. (2) Acharya Kripalani and the Lok Nayak have condemned death penalty publicly (3) [1979] 3 S.C.R.78. 12 409 SCI/79 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 case(l)	 the law of punishment under section 302 I.P.C. has been largely settled by this Court and the High Courts are bound thereby. Rajendra Prasad 's case (supra) and Bishnu Deo Shaw 's(2) case	 have indubitably laid down the normative cynosure (1) [1974] 4 S.C.C.443 (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 235(2) Cr.P.C.	 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. 235(2) 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 354(3) 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	 e.g. 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 T.V. 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 I.P.C.	 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 i.e.	 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 I.P.C.	 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 354(3) Cr.P.C.	 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 366(1) of the Code and the accused also has right of appeal to the High Court under 5. 374(2) 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 354(3) 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 (iii)judgment 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 decidendi(l). 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 Haynes(2) 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 an(l 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	 i.e.	 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 Judge/Judges 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 354(3) 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 354(3) of the Code of Criminal Procedure. Section 302 of the Indian Penal Code gives a choice while section 354(3) 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 354(3) of the Code of Criminal Procedure. I may also venture to say	 the obsession to get the death penalty abolished from the Statute Book	 i.e.	 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 case(1) 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 writer(2) 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 368(a) 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. N.V.K Appeal allowed.

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 I.P.C. 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 either/or 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 235(2) Cr. P.C.	 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 235(2) has been frustratingly ritualised. [1069D E] 1061 10. Section 302 of the Penal Code	 read with section 354(3) 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. P.C.	 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 i.e.	 virtually abolish the extreme penalty. [1072G] 4. Section 302 I.P.C.	 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 354(3) Cr. P.C.	 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 366(1) of the Code. The accused also has a right of appeal to the High Court under section 374(2) 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 354(3) 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 L.R. 1959 A.C. 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	 i.e. 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 354(3) 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 Court.[1075C 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 354(3) of the Code of Criminal Procedure. [1075E F] 1064 12. section 302 of the I.P.C. gives a choice while section 354(3) 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 354(3) of the Code of Criminal Procedure. [1075H 1076A] 14. The obsession to get the death penalty abolished from the Statute Book i.e. 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 1(1973) 1 S.C.C. 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 368(a) 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]