Court: Supreme Court of India
Bench: Thakkar, M.P. (J)
Theme: Death Penalty: Constitutional Validity
Subject: Indian Penal Code; section-302
A course of series of five incidents where a total no. of seventeen people were murdered occurred in succession in five different villages in Punjab, India on the night of 12th August 1977. A local man, Macchi Singh (accused), who was in a feud with one, Amar Singh (deceased), and his sister, Piaro Bai (deceased), planned and executed the Incidents. Seventeen people who lost their lives and other three who sustained injuries in the incidents were related to Amar Singh and his sister, Piaro Bai. Pertaining to the murder of seventeen people, Macchi Singh and his eleven companions were prosecuted in the five-session courts. Macchi Singh was the common defendant at each trial. After the trial proceeding, the accused found guilty were convicted under the appropriate provisions of the Indian Penal Code, 1860. Among the total accused, nine were awarded life imprisonment, while Macchi Singh and three others were sentenced to death.
Thereafter, a total of fourteen appeals were made by the convicts before the High Court of Punjab & Haryana. However, the appeals were rejected and the death penalty imposed by the session courts was upheld. The convicts, thereafter, approached the Supreme Court in the Year 1983 through a special leave petition filed under Article 136 of the Constitution of India.
The major issue addressed by the Supreme Court in this case was that:
Whether a death penalty could be given to Macchi Singh and other convicts by applying the “the rarest of the rare cases” formula laid down in the case of Bachan Singh vs State of Punjab that identified for imposing death sentence in a murder case in India?
1) R.L Kohli and R.C Kohli, the learned counsels for the appellants contended that in each crime the appreciation of evidence regarding identification has to be made in the context of the fact-situation that a lighted lantern was hanging in the court-yard where the victims were sleeping on the cots.
2) Since it was a dark night, electricity had not yet reached the concerned village at the material time. And, the light shed by the lantern cannot be considered to be sufficient enough to enable the eyewitnesses to identify the culprits.
1) Harbans Singh and D.D Sharma, the learned counsel for the state rebuffed the arguments contended by the appellants, on the ground that villagers living in villages where electricity has not reached as yet, get accustomed to seeing in the light shed by the lantern. Their eyesight gets conditioned and becomes accustomed to the situation.
2) Moreover, the identification did not pose any serious problem as the accused were known to the witnesses. In fact, they were embroiled in a long-standing family feud. As the culprits have not covered their faces to conceal their identity, it was not difficult to identify them from their facial features, build gait, etc. Therefore, the light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances.
OBSERVATIONS (SUPREME COURT):
Hon’ble Justice Thakkar observed that:
1. In the landmark judgment Bachan Singh v. State of Punjab, the constitutional validity of the death penalty for murder provided in Section 302 of the Indian Penal Code, 1860 and the sentencing procedure embodied in section 354 (3) of the Criminal Code of Procedure, 1973 were upheld.
Section 354(3) of the CRPC states that when the conviction is for an offence punishable with the death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
2. However to the Contentions raised by Hon’ble Justice V.K Krishna Iyer in the case Rajendra Prasad v. State of Uttar Pradesh, that the provision of the Death penalty in section 302, IPC offends Article 19 and 21 of the constitution, the Supreme court observed that:
a) The fundamental rights guaranteed under Article 19(1) of the Constitution are not absolute. Firstly, they are subject to inherent restraints stemming from the reciprocal obligation of one member of society to so use his rights as not to Infringe or injure the similar rights of another. Secondly, under clauses 2 to 6 of Article 19 these rights have been expressly made subject to the power of the state to impose reasonable restrictions, which may extend to even prohibition, on the exercise of these rights.
b) Further, articles 20,21 and 22 are primarily concerned with the penal enactments of the other laws under which the personal safety or liberty of powers could be taken away in the interest of the society and they set down the limits within which the state control should be exercised.
c) That the special reasons necessary for imposing the death penalty as mentioned in section 354(3), CRPC, must relate not to the crime as such but to the criminal as well. For special reasons in that context, the court must pay due regard to both the crime and the criminal.
3)The court then dealt with the determination of the “special reasons” that need to be mentioned under section 354 (3) of the CRPC. It was observed that the special reasons need to be determined in light of the aggravating and mitigating factors. And, what is the relative weight to be given to the aggravating and mitigating factors would depend on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. For in a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability.
4) Drawing upon the penal statutes of the states in the USA framed after FURMAN vs GEORGIA, in general, and clauses 2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these “aggravating circumstances”:
AGGRAVATING CIRCUMSTANCES: A court may, however, in the following cases impose the penalty of its discretion:
a) If the murder has been committed after previous planning and involves extreme brutality, or
b) If the murder involves exceptional depravity; or
c) If the murder is of a member of any of the armed forces of the Union or of a member of any police servant and was committed-
I. While such member or public servant was on duty; or
II. In consequences of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of the murder he was such member or public, as the case may be, or had ceased to be such member or public servant; or
d) If the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the CRPC, 1973, or who had assisted a magistrate or a police officer demanding his aid or requiring his assistance under section 37 and section 129 of the said code.
Dr. Chitaley further suggested these mitigating factors:
Mitigating factors: In its discretion, the court shall take into account the following circumstances:
1) That the offence was committed under the influence of extreme mental or emotional disturbance.
2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
3) The probability that the accused would not commit criminal acts of violence would constitute a continuing threat to society.
4) The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove that accused does not satisfy the conditions 3 and 4 above.
5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
6) That the accused acted under the duress or domination of another person.
7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The Supreme court reached its conclusion that Death Penalty is to be awarded only in the rarest of rare cases and stated the following guidelines:
1) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
2) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
3) Life imprisonment is the rule and death sentence is an exception.
4) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
After discussing the guidelines forwarded in Bachan Singh case, the Supreme court applied the aforementioned guidelines on Macchi Singh for deciding the sentence.
In addition to the abovementioned guidelines, Hon’ble Justice Thakkar observed some further aspects as well to be taken into consideration while deciding on the decision of the death penalty:
1. MANNER OF COMMISSION OF MURDER
When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner as to arouse intense and extreme indignation of the community. For instance,
a) When the house of the victim is set aflame with the end in view o roast him alive in the house
b) When the victim is subjected to inhumane acts of torture or cruelty to bring about his or her death.
c) When the body of the victim is cut into pieces or his body is dismembered fiendishly.
2. MOTIVE FOR COMMISSION OF MURDER
When the murder is committed for a motive which evinces total depravity and meanness.
3. ANTI-SOCIAL OR SOCIALLY ABHORRENT NATURE OF THE CRIME
a) When the murder of a scheduled caste or minority community etc, is committed not for personal reasons but in circumstances which aroused social wrath.
b) In cases of ‘bride burning’ and what are known as ‘dowry-deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
4. MAGNITUDE OF CRIME
When the crime is enormous in proportion. For instance when multiple murders, or murder of all the members of a family or basically a genocide, is committed.
5. PERSONALITY OF VICTIM OF MURDER
When the victim of murder is-
a) An innocent child who could not have or has not provided even an excuse, much less a provocation, for murder
b) A helpless woman or a person rendered helpless by old age or infirmity
c) When a victim is a person vis-a-vis whom the murderer is in a position of domination or trust
d) When the victim is a public figure generally loved and respected by the community for the services rendered by him and the is committed for political or similar reasons other than personal reasons.
Further, it was observed that in this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual where the question of imposing of death sentence arises.
Thus, after applying the guidelines mentioned in the Bachan Singh case and giving its abovementioned reasons, the Supreme Court upheld the death penalty on Macchi Singh and other appellants imposed by the lower courts. The court held that the circumstances of the case reveal that it was a cold-blooded murder and the victims were helpless and undefended. The offence committed was of an exceptionally depraved and heinous character. The manner of its execution and its design put it at the level of extreme atrocity and cruelty. The court ruled that the alternative option of life imprisonment was unquestionably foreclosed.
STATUS QUO OF THE JUDGMENT: The landmark judgment delivered in the Bachan Singh Case and then followed in the line in the Macchi Singh Case is still in very much practice in today’s time. The observations made by the Apex Court in the Bachan Singh Case that when the question of choice of sentence is under consideration, the court must not only look into the circumstances of the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community at large is still followed by the Indian courts. Unless the circumstances of the crime and the criminal reveal that the criminal is a threat to the society, and the crime is so brutal and committed in such grotesque manner as to shock the collective conscience of the community, and the court is of the opinion that the sentence of life imprisonment is altogether inadequate, the court should ordinarily impose the lessor punishment and not the extreme punishment of death which should be reserved for exceptional cases only.
CONCLUSION (Authors’ views):
“The murderer has killed. It is wrong to Kill. Let us kill the murderer”, quoted by the Arthur Koestler in his ‘Drinkers of Infinity’ rightly demonstrates the irony behind the idea of the death penalty. Though this debate for and against the complete abolition of the death penalty has been going on since time immemorial, the Indian courts have been acting in its favour. Even though the efficiency of the courts cannot be questioned in following the standardised formula laid down in these cases, but at the same time the courts need to fairly execute the discretionary power assigned to them. In a country like India, where the people might lose hope in judiciary because of the prolonged and protracted trial, the court need not succumb to the demand of the general public for imposing the death penalty and rather work judicially in administrating Criminal Justice System, since what deters the criminal is the certainty of the consequent punishment rather than the nature of the punishment. More importantly, the sensitization of human rights among general public is the need of the hour, as the general public has little patience for the nuances of law which leads to abortive implementation of the procedural laws. Therefore, not only the retention of the death penalty in the statute book would serve the justice better, but the following of due process of law.
 (AIR 1980 SC 898 145)
 (AIR 1980 SC 898 145)
 (1979 3 SCR 646)
Contributed by: Rupali Tyagi (Student, Law Centre-2, Faculty of Law, University Of Delhi)
Swati Tyagi (Student, Campus Law Centre, Faculty of Law, University of Delhi)