BISHNU DEO SHAW @ BISHNU DAYAL v. STATE OF WEST BENGAL
Citation: [1979] 3 S.C.R. 355; 1979 INSC 49
Court: Supreme Court of India
Bench: V.R. KRISHNA IYER , O. CHINNAPPA REDDY
Judgment date:
Case summary
1979 INSC 49. Supreme Court of India judgment dated 1979-02-22. BISHNU DEO SHAW @ BISHNU DAYAL v. STATE OF WEST BENGAL. Read the judgment and case details...
Judgment text
356 SUPREME COURT REPORTS [1979] 3 s. c. R, BISHNU DEO SHAW@ BISHNU DAYAL v. STATE OF WEST BENGAL • February 22, 1979 [V. R. KRISHNA IYER AND 0. CllINNAPPA REDDY, JJ. J Demand of death for murder, rationale of section 302 I. P. C. vis-a-vis- Section 354(3) of the Crl. P. C. 1973-"Special Reason:/', meaning of-Section 354(3) 360. 361 of Crl. P. C. -Scope of. The appellant was convicted by the Additional Session's Judge Alipore for the murder of his son 00. d sentenCed to death. The reason given by the Sessions Judge was that the murder was "cruel and brutal" and that the facts showed the "grim determination" of the accused to kill the deceased. The Sessions Judge made no reference to the motive of the accused for the commission of the murder.
The High Court while confirming the conviction and sentence observed that the accused had previously murdered his wife, suspecting her infidelity that the sentence of imprisonment imposed on him for the mur~er of his wife had no sobering effect, that he suspected that the deceased in the present case was not his own son and so he murdered him without any mercy or remorse, and that he, therefore deserved no mercy. ¥ Allowing the appeal by special leave limited to the question of sentence, the Court > HELD : 1. There were no "special reasons" justifying the imposition of the death penalty. [3 71 Fl (a) The Sessions Judge was wrong in imposing the sentence of death without even a reference to the reason v"hy the appellant comn1itted the murder. [371 CJ \ • (b) The observation of the High Court that the appellant deserved no " mercy because he showed no mercy smacks very much of punishment by way . )( of retribution.
[371 CJ ' (c) From the evidence, it is clear that the appellant 'Whs a moody person • who had for years been brooding over the suspected infidelity of his wife and the injury of having a son foisted on him. The mere use of adjectives like "cruel and brutal" does not supply the special reasons contemplated by section 354(3) of the Criminal Procedure Code, 1973. [3. 710-E] Rajendra Prasad v. State of Utrar Pradesh, [1979] 3 S. C. R. 78, applied. 1 2. "Special reasons ' are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences.
Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemp· tion, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc. Section 354(3) of the 1973 Code has narrowed the discretion of sentence for murder. Death sentence is ordinarily ruled out and can only be imposed for "Special reasons". Judges are left ·with the task of discovering "special reasons". [368 D-E. 370E-F] (a) Apart from Section 354(3), there is another prov1s1on in the Code which also uses the significant expression "Special reasons. ".
It is Section 361, Section 360 of the 1973 Code re-enacts, in substance, Section 562 of ~16 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty-one years of age who is COn• victed of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty·one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court having regard to the age, character or antec-e· dents of the offender, and to the circunlStances in which the offellce was committed, that it is expedient that the offender should be re1eased on proba· tion of good conduct or after admonition. If the Court refrains from den. I· ing with an offen love and hate, who yearn for affection and approval, as all of us do, who think learn and forget.
Like the rest of us they too are the creatures of circumstances. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintences, the books that one reads, newspapers, radio and TV, the economics of the household, the· oppor- BISHNU DEO V. WEST BENGAL 357 tunities provided by circumstances and the calarnaties resulting therefrom the success and failure of one's undertakings the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra-ordinary incidents of life contribute to a person's personality and influence his conduct. Differently shaped and differently circumstanced indivi· duals reaoet differently in given situations. A judge has to balance the personality • of the offender with the circumstances the situations and the reaction~ and choose the appropriate sentence to be imposed. A judge must try tO 3.
nswcr a myriad question such as was the offence comn1itted without premeditation or was it after due deliberation ? What was the motive for the criwe '! \Va-s it for, gain ? Was it the outcome of a village feud ? Was it the result of a petty drunken, street brawl, or a domestic bickering between a helpless husband and a helpless wife ? Was it due to sexua-1 jealousy ? Was the n1u:· Rica, Ecuador, Maxico, Panama, Peru and Uruguas, Venezuala, in _t: - European countries, in Austria, Belgium, Denmark, Germany, Italy, Netherlands, Norway, Sweden, and Switzerland, in Iceland, in Israel, in many Australian States and in many of tbe States in the United • States of America, death sentence has been abolished . It is in the light of the r\ght to life as a basic concept of human \11 ~ dignity, in the context of tbe unproven efficacy of the death penalty as ~ • a deterrent and in tbe background of modern theories of criminology .
based upon progress in the fields of science, medicine, psychiatry ~n ion in the 1973 Code • makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to BJ do so and, to state "special reasons" if it does not do so. In the con- • text of Section 360, the "special reasons" contemplated by Section 361 mnst be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal Justice in our country.
Section 361 and Section 354i(3) have both entered the Statute Book at the same tin1e and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the perso~na! ity of the offender a. revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform ! llust necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to thege factors. Criminal justice is not a computer machine. It deals with ~omplex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they • too are the creatures of circumstance.
Heredity, environment, home neighbourhOQd; upbringing, school, friends, associates, even ca~ual acquaintenances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances and the calamities r$Jsulting therefrom, the success and failure of one's undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other t ordinary and extra-ordinary incidents of life contribute to a person's personality and influence his conduct. Differently shaped and different- . ly circumstanced individuals react differently in given situations. Judge has to balance the: Pl! tsonality of the offender with the circumstance the situations and the reaction8 and choose the appropriate sentence to be imposed. A judge must try to answer a myried ques-tions such as was the offence committed without premeditation or was it after due deliberation ? What was the motive for the crime ?
Was it for gain? Was it . the outcome of a village feud? Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife ? Was it due to sexual jealousy ? Was the murder committed under some stress, emotional or otherwise ? t What is the background of the offender ? What is his social and eco- , nomic status ? What is the level of his education or intelligence ? Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand, do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or is he a person who is patently amenable to reform? Well, may one ex· claim with Prof. Vrij "What audacity is involved in these three tasks : to interpret life, explain an act, predict the latest inclination of a human mind.
" 'Special reasons', we may, therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of Criminology and • connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc. I will not attempt to catalogue any 'Special reasons'. I have said enough and perhaps more than what I intended, to indi· cate what according to me should be the approach to the question. Whatever I have said is but to supplement what my brother Krishna I Iyer has already said in Rajendra Prasad v. State of U. P. (') • Coming to the case before us, our brothers J aswant Singh and Kallas am, JJ .
, ordered 'notice confined to the question of sentence only. ' At the last hearing we granted special leave to appeal on the question of sentence. The appellant was convicted by the learned Additional Sessions' Judge, Alipore, for the murder of his son and sentenced to death. The High Court of Calcutta confirmed the conviction and sentence. The reason given by the learned Sessions Judge for giving the sentence of death was that the murder was 'cruel and (1) (1979] 3 S. C. R. 18. BISHNU DEO v. WEST BENGAL (Krishna Iyer, J. ) 371 brutal' and that the facts show the 'grim determination' of the accused -to kill the deceased. The Sessions Judge made no reference to the motive of the accused for the commission of the murder.
The High Court while confirming the sentence observed that the accused had previously murdered his wife, suspecting her infidelity and suspecting • that the deceased in the present case was not his own son, that the sentence of imrisomnent imposed on him for the murder of his wife • had no soberii)g affect and that he had murdered his own son without any mercy or remorse and that he, therefore, deserved no mercy. We ( do not think that either the Sessions Judge or the High Court made - ~ the right approach to the question. The Sessions Judge was wrong j in imposing the sentence of death without even a reference to the reason why the appellant co=itted the murder. The observation of the High Court that the appellant deserved no mercy because he showed no mercy smacks very much of punishment by way of retribution. We have examined the facts of the case.
We find some vague evidence to the effect that the appellant suspected that the deceased was not his own son and that he used to get angry with the deceased for not obeyini: him. There is also vague evidence that he had killed the mother of the deceased and had suffered sentence of imprisonment for that offence. From the vague evidence that is available we gather that the appellant was a moody person who had for years been brood-· ing over the suspected iI\fidelity of his wife and the injustice of having a son foisted on him. We do not think that the mere use of adjectives like 'cruel and brutal' supplies the special reasons contemplated by Section 354(3) Criminal Procedure Code. In the light of the principles enunciated in Rajendra Prasad v. State of U. P. ,(') and in the light of what we have said earlier, we do not think that there are anv 'special reasons' justifying the imposition of the death penalty.
W~ accordingly allow the appeal as regards sentence, set aside the sentence of death and impooe in its place the sentence of life imprisonment. · KRISHNA IYER, J. -I have had the advantage of reading the Judg- • ment of my learned brother, Shri Justice Chinnappa Reddy. I wholly agree with his reasoning and conclusion. Indeed, the ratio of Rajendra Prasad e~c. v. State of Uttar Prade•h etc. ('), if applied to the present , case, as 1t must be, leads to the conclusion that death sentence cannot be awarded in the circumstances of the present case. Coun5el for the State, if I recollect aright, did state that in view of the criteria laid {1) [1979] 3 S. C. R. 78. A down in Rajendra Prasad's case the State did not propose to file any written submissions against commutation to life imprisonment. I concur with my learned brother and direct that the appeal, confined to sentence, be allowed and the alternative of life imprisonmer. t imposed. • B V. D. K. Appeal allowed • J • • • (l) (1979]3 S.
C. R. 78.
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