SMT. TRIVENIBEN & -ORS. v. STATE OF GUJARAT & ORS

Citation: [1989] 1 S.C.R. 509

Court: Supreme Court of India

Bench: G.L. OZA, K.N. SINGH, M.M. DUTT, K. JAGANNATHA SHETTY, L.M. SHARMA

Case summary

2 The only jurisdiction which could be sought to be exercised by a prisoner (or infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a...

Judgment text

SMT. TRIVENIBEN & -ORS. v. STATE OF GUJARAT & ORS. FEBRUARY 7, 1989 [G. L. OZA, MURARI MOHON DUTT, K. N. SINGH, K. JAGANNATHA SHETTY AND L. M. SHARMA, JJ. ] Constitution of India, 1950: Article 32-Death sentence-Undue long delay in execution-When justifies commutation to life imprisonment-Whether Supreme Court can reopen the conclusions reached by the court sentencing the prisoner-Earlier judgment of Court-Whether can be challenged on ground of violation of fundamental rights-Mercy petitions~Expeditious disposal of-Necessity for. Art. 20(1)-Death sentence-Securing convict in prison until execution ofsentence-Whether amounts to double jeopardy. Art. 21-'-Person sentenced to death-Inordinate delay in execution of sentence-Whether amounts to mental torture-Necessity for observance ofprocedural fairness emphasised. Arts. 141-145-Larger Bench of the Court-Whether entitled to overrule view ofa smaller Bench. Arts. 72, 161~Mercy Petitions-Expeditious disposal of-Necessity for. .

t' Criminal Procedure Code, 1973: Sections 413, 414 and 354(3)- Delay in. execution of death sentence-Whether can be a ground for commutation to life imprisonmeμt-Time taken upto final verdict- Whether to be excluded in considering delay in execution of death sentence-Whether any time limit can be prescribed for execution of death sentence-Good conduct ofprisoner after final verdict-Whether can be ground for commutation. Indian Penal Code, 1860-Sections 120-B, 121, 132, 302, 307 & 396--Death sentence-Whether constitutionally valid. The accused were convicted under s. 302 I. P. C. and sentenced to· death by the trial court. The High Court confirmed their conviction and sentence. This Court dismissed their special leave petitions/appeals and subsequenfreview petitions. Their mercy petitions to the President and/ or Governor were also rejected.

Therefore, they approached this Court by way of Writ Petitions for setting aside the death sentence and substituting it by a sentence of life imprisonment on the ground of prolonged delay in the execution. They contended that the dehumanising factor of prolonged delay with the mental torture in confinement in jail had rendered the execution unconstitutional. In view of the conflicting decisions of this Court in T. V. Vaitheeswaran v. State ofTamil Nadu, [1983) 2 SCR 348 and Sher Singh & Ors. v. The State of Punjab, [19831 2 SCR 582 and observations in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, [19851 2 SCR 8 on the question of delay, the writ petitions were referred to a tive judges Bench.

While a Bench of two Judges held in· Vaitheeswaran's case that two years delay in execution of the sentence after the judgment of the trial court would entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life, a three Judges' Bench held, in Sher Singh's case, that delay alone is not good enough for commutation and two year's rule could not be laid down in the cases of delay and that the Court in the context of the nature of the offence and delay, could consider the question of commutation of death sentence. In Javed's case this Court observed that where the condemned man had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind, would entitle him for commutation of sentence of death I into imprisonment for life.

The questions for consideration in these cases were: (a) whether "'* prolonged delay in execution of the sentence of death rendered it inexecutable and entitled the accused to demand the alternate sentence of imprisonment for life, (b) what should be the starting point for computing this delay, (c) what were the rights of a condemned prisoner who had been sentenced to death but not executed, and (d) what could be t. he circumstances which should be considered along with the time that had been taken before the sentence is executed. On October 11, 1988 this Court dismissed all the writ petitions, except Writ Petition No. 1566of1985, which was partly allowed and the sentence of death awarded to the accused was substituted by the sen- tence of imprisonment.

Over-ruling the decision in Vaitheeswaran's case that two years' delay would make the sentence of death inexecutable, this Court held that undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court under Article 32 but this Court would only examine the nature of delay caused and circumstances ensued after sent. ence was t'lnally cont'intted by the judicial process and would have no jurisdiction to reopen the · conclusions reached by the Court while finally maintaining the sentence of death, that this Court, might consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of the sentence should be carried out or should be altered into imprisonment for life and that no fixed period of delay would be held to make the sentence of death inexecutable. Reasons for the judgment were to follow. Gi'Ving. the reasons for the Judgment, HELD: .

Majority: Oza, Murari Mohon Dutt, Singh and Shanna JJ. Per Oza, J: 1. 1 The delay which could be con81dered while considering the question of commutation of sentence of death Into one of life Imprisonment could only be from . the date the judgment by the apex Conrt is pronounced i. e when the judicial process has come to an end. [528E-F] 1. 2 The condemned prisoner knows that the judgment pronounced by t. he Sessions Court in the case of capital punishment is not final unless confirmed by the High Court. All the delay upto the final judicial process is taken care of while the judgment is finally pronounced, and in a number of cases the time that has elapsed from the date of offence till the final decision, has weighed with the courts and lesser sentence awarded only onthis account. [S26E, H; 527A] State of Uttar Pradesh v. Lalla Singh and others, [1978] I SCC 142; Sadhu Singh v. State of U. P. , AIR 1978 SC 1506; State of U. P. v. Sahai, AIR 1981 SC 1442 and Joseph Peter v.

State of Goa, Daman & . > Diu, [1977] 3 SCR 771, referred to. Piare Dusadh and others v. The King Emperor, (1944] Federal Court Reports 61, referred to. 1. 3 Practically, in all the High Courts a confirmation case i. e. a case where the sentence of death is awarded by the Sessions Court and is pending in the High Court for confirmation in the High Court a time bound programme is provided in the rules and, except on some rare occasions, the High Court has disposed of a confirmation case between six months to one year. At the Sessions level also, the normal procedure of the sessions trial is that it is taken up day today and it is expected that such a sessions case should be given· top priority and it is expected that such trials must continue day to day till it is concluded.

Even in this Court, although there is no specific rule, normally these matters are given top priority, and ordinarily, it is expected that these matters will be given top priority and shall be heard and disposed of as expedi- -r tiously as possible. Therefore, as long as the matter is pending in any Court before any final adjudication, even the person who has been condemned or sentenced to death has a ray of hope. Therefore, it could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms day. l527G-H; 528C-E] 1. 4 After the matter is finally decided judicially, it is open to the person to approach the President or the Governor as the case may be with a mercy petition.

It is no doubt true that sometimes such mercy petition and review petitions are filed repeatedly causing delay, but a legitimate remedy if available in law, a person is entitled to seek it and it would, therefore, be proper that if there has been undue and prolonged delay, that alone will be a matter attracting the jurisdiction of this Court, to consider the question of executio! I of the sentence. However, while considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of convicted person himself shall not be considered. l528F, G; 529A] 1. 5 The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive. l529B] 1. 6 When petitions under Art. 72 or 161 are received hy the authorities concerned, it is expected that these petitions shall be disposed of expeditiously. [529C] T. V.

Vaitheeswaran v. State of Tamil Nadu, 11983] 2 SCR 348, over-ruled. Sher Singh & Others v. The State of Punjab, 119831 2 SCR 582, affirmed. Javed Ahmed Abdul Hamid Pawa/a v. State of Maharashtra, [1985] 2 SCR 8, referred to. 2. 1 A judgment of the Court can never be challenged under Art. 14 or 21 and, therefore, the judgment of the court awarding the sentence of death is not open to challenge as violating Art. 14 or 21. [531G-H] Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr. , [1966] 3 SCR 744 and A. R. Antulay v. R. S. Nayak and another, [1988] 2 sec 602, relied on. 2. 2 The only jurisdiction which could be sought to be exercised by a prisoner (or infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court. [532A-B] 2. 3 It will not be open to this Court in exercise of jurisdiction under Art.

32 to go behind or to examine the final verdict reached by competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to· a conclusion that execution of the sentence of death will nilt be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to -the court to examine or co__nsider any circumstances after the final verdict was pronounced if it is considered relevant. [532B-DJ 2. 4 The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. [5320] 3.

1 Before 1955, sentence of death was the rule, the alternative sentence had to be explained by reasons. Thereafter, it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except that for the special reasons to be recorded sentence of death conld be passed. This indicates a trend against sentence of death but this coupled with the decisions wherein sentence of death has been accepted as constitu- tional, show that although there is a shift from sentence of death to lesser j sentence, there is a clear intention of maintaining this sentence to meet the ends ofjustice in appropriate cases. Therefore, in spite of the divergent trends in the various parts of the world there is a consistent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penally.

It is awarded in the rarest of 4 rare cases and this is the accepted position oflaw. (5248-D] Bachan Singh etc. etc. v. State of Punjab etc. etc. , (1983] 1 SCR 145 and Machhi Singh and others v. State ofPunjab, (1983] 3 SCC 470 -~ referred to. 3. 2 The circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and the Legislature was, therefore, right in leaving it to the discretion of the judicial decision as to what should be the sentence In particular 0 circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof. [525H; 526A-B] 4. The prisoner, who is sentenced and kept ill jail custody under a warrant under s. 366(2) of the Criminal Procedure Code Is neither suffering rigorous imprisonment nor simple imprisonment.

In substance, he is in jail so that he is kept safe and protected. with the purpose that he may be available for execution of the sentence which has been awarded. Hence this will not amount to double jeopardy. (53lEl The life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sen- . tence, and it is essential that he must be kept safe. [531F] Sunil Batra v. Delhi Administration, (1979] 1 SCR 392 referred to. Per Jagannatha Shetty, J (Concurring): 5. Article 21 demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. This pro· cedural fairness is required to be observed at every stage and till the last breath ofthe life. [546C] · \ ;-· · Maneka Gandhiv. Union ofIndia, [1978] 1SCC248; The State of West Bengal v. Anwar Ali, [1952] SCR 284; Bachan Singh v. Slate of ·1 Punjab, [1980] 2 SCC 684; Mithu v. State of Punjab, [1983] 2 SCC 277 and Sher Singh v.

State ofPunjab, [1983]2 SCC 582, relied on. \ 6. 1 The delay which is sought to be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceedings. It is the time that the parties have spent for trial, l ; appeal, further appeal and review. The second part takes into fold l the time utilized by the executive in the exercise of its prerogative t clemency. [547H; 548A-B] ~i. 6. 2 The time taken in the judicial proceedings by way of. trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent ~ in the public interest for proper administration of justice. If there is inordinllte delay in disposal ofthe case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances.

The court before sentencing is bound to hear the parties and take into account every circumstance for and agBinst the accused. H the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence, save by way of Jl review. [548F-H] 6. 3 There cannot be a second trial on the validity of sentence , based on Art. 21. The execution which is impugned is execution of a judgment and not apart from judgment. H the judgment with the sentence awarded is valid and binding, it falls to be executed in accordance with law. Therefore, if the delay in disposal of the case is not a mitigat- ~ing circumstan. ie for lesser sentence, it would be wholly inappropriate to fall back upon the same delay to impeach the i:xecution. [548H; 549A-B] 6. 4 If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional.

Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of ' > fairness in proceedure under Article 21. [549B-C) I T. V. Vaitheeswaran v. State of Tamil Nadu, [1983) 2 SCR 348, over-ruled. . ~ 6. 5 The time taken by the executive for disposal of mercy petilions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for disposal of even mercy petitions. However, Article 21 is relevant at all stages, and the principle that speedy trial is a part of one's fundamental right to life and liberty is no less important . J, for disposal of mercy petition. [549E-F] Hussainara Khatoon v. The State ofBihar, [1979] 3 SCR 169 and 1930 1 SCC 81 and Kadra Pahadiya v.

State ofBihar, [1981] 3 SCC 671 '\' ~. '--. : and 1983 2sec 104 relied on. 6. 6 It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison. But nobody could succeed in giving him peace ofmind. [549G-H] Sunil Batra v. Delhi Administration, I1978J 4 sec 494 referred to. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental tortment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is ,. extinguished after the final verdict. If, therefore, there is inordinate •· delay in execution, the condemned prisoner is entitled .

to come to the court requesting to examine whether, it is just and fair to allow tbe ~ sentence ofdeath to be executed. [SSOC] 6. 7 The jurisdiction of the Court at this stage, is extremely limited. The Court, while examining the matter, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Art. 226 or under Art. 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory cond11ct and whether the delay was for no reason at all. Though the inordinate delay may be a significant factor, but that by itself cannot render the execution uncon- SMT. TRIVENIBEN ,. _ STATE OF GUJARAT 517 "' stitutional.

Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. [550D-G I T. V. Vaitheeswaran v. State of Tamil Nadlf, [1983] 2 SCR 348 over-ruled. Sher Singh v. State ofPunjab, [1983] 2 SCR 582 affirmed. Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8; Vivian Rodrick v. . The State of West Bengal, [1971) 1 SCR 468; State of U. P. v. Paras Nath Singh & Ors:, [1973] 3 SCC 647; Bihar v. Pashupati Singh, [1974] 3 SCC 376; State of U. P. v. Suresh, [1981] 3 SCC 635 at 643; State of U. P. v. Sahai, [1982) 1SCC352; Ram Adhar v. State uf U. P. , [1979) 3 SCC 774 at 777; State of U. P. v. Lalla Singh & Ors. , [1978] 1SCC142; Sadhu Singh v. State of U. P. , [1978] 4 ~· SCC 428; Nachhittar Singh v. State of Punjab, [1975) 3 SCC 266; Maghar Singh v. State of Punjab, [1975] 1 SCC 234; Lajar Mashi v. State of U. P. , [1976] 1 SCC 806; Hussainara Khatoon v. The State of Bihar, [1979] 3 SCR 169 and 1980 1 SCC 81 and Kadra Pahadiya v..

State ofBihar, [1981] 3 SCC 671and1983 2 SCC 104 referred to. 6. 8 If the Court wants to have a look at the grievance as to delay then there should not be any delay either in listing or in disposal of the matter. The person who complaints about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of. [550D-E] • 6. 9 The contention that the accused should not be executed if he has since improved is unavailable, since it seeks to substitute a new ~ procedure which the Code does not provide for. [551B] 7. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one's funda· mental right. The judgment of a court_cannot be said to affect the fundamental rights ofcitizens. [534A-BI Naresh Sridhar Mirajkar, [1963] 3 SCR 744 relied on. 8. It is now obligatory for the court to state reasons for the sentence awarded for the offence ofmurder.

The court cannot award death sentence without giving special reasons and only in exceptional cases and not in the usual run of murders. There are just six offences carry· ing death penalty and that too as an alternate sentence. [543E-F] 9. The criminal law always keeps pace with the development of society. The punishment which meets the unanimous approval iit one generation, may rank as the most reprehensible form of cruelty in the next. The representatives of the people are cognizant of the contemporary social needs. The legislative amendments brought about from time to time are indicative of their awareness. The penal law cannot ·remain isolated and untouched. It will be profoundly influenced by philosophy prevailing. Time may reach for the representatives of people to consider that death penalty even as ari alternate sentence for murder is uncalled for and unnecessary. There is nothing in our Constitution to preclude them from deleting that alternate sentence.

[540C; 542H; 543H; 544A] Bachan Singh v. State of Punjab, [1980] 2 SCC 684 and Mithu v. State ofPunjab, [1983] 2 SCC 277, referred to. 10. The practice prevailing over the years had been that a larger bench straightaway considers the correctness ofand, if necessary, overrules the view of a smaller bench. This practice has been held to be the crystallised rule of law in a recent decision by a special bench of seven judges of this Conrt. This must be regarded as a tinal seal to the controversy, and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. [536H; 537E] A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531, followed. CRIMINAL ORIGINAL JURISDICTION: Writ Petition , (CRL) Nos. 1566/86, 186/85, 191/86, 338/88 & 649/87. (Under Article 32 of the Constitution of India. ) R. K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd. Naseem, Rakesh K. Khanna, P. K. Jain, Mukul Mudgal, Sanjay Parikh, B. P. Singh, P. Krishna Rao, B. K.

Prasad, Ms. Malini Poduwal, Lalit Kumar Gupta, Manoj Swarup, Harish Salve, Rajiv Garg, Rajiv Shakdhar, N. D. Garg, L. K. Gupta (Amicus-curiae), M. Veerappa and Dalveer Bhandari for the Petitioners. K. Parasaran, Attorney General, B. Datta, Additional Solicitor i General, V. C. Mahajan, T. U. Mehta, Anand Prakash, Ms. A Subhashini, A. K. Srivastava, S. K. Bhattacharya, M. N . Shroff, Ms. Sushma Ralhan. Mahabir Singh, AV. Rangam and R. S. Suri for the Respondents. SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J. [ 519 A. K. Goel, Ajit Pudissery and Mrs.. Jayamala Singh for the Interveners. The following Judgments of the Court were delivered: OZA, J. These matters came up before us because of the conflict in the two decisions of this Court: i) T. V. Vatheeswaran v. State of Tamil Nadu, [1983) 2 SCR 348; Sher Singh & Others v. The State of Punjab, [1983I 2 SCR 582 and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8.

In Vatheeswaran's case, a Bench of two Judges bf this Court held that two -~- I years delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life. The Court observed that: · "Making all reasonable allowance for the. time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death. " In Sher Singh's case which was a· decision of a three Judges· Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is , not good enough for commutation and two years rule could not be laid down in cases of delay.

It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence. The Court observed: "Apart from the fact that the rule of two years run in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities. We are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid . , of the sentence of death imposed upon him and indeed, •.

there is no one, be he blind, lame, starving or• suffering from a terminal illness, who does not want to live. " It was further observed: "Finally, and that is no less important, the nature of the . , offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is ·tvacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by a sentence of life imprisonment cannot follow by ~ the application of the two years' formula, as a matter of "quod erat demonstrandum".

In Javed's case, it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of . Jf death into imprisonment for life. It is because of this controversy that the matter was referred to a five-Judges' Bench and hence it is before us. , Learned counsel for the petitioners at length has gone into the ' sociological, humane and other aspects in which the question of sentence of death has been examined in various decisions and by various ·-~ authors. It is however not disputed that in Bachan Singh etc. etc. v. State of Punjab etc. etc. , I1983] I SCR 145 constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P. N.

Bhagwati, as he then was, which is the minority opinion in Bachan Singh's case. In his opinion Justice P. N. Bhagwati has conducted a detailed research and has considered the material about the various aspects of sentence of death. Learned Attorney General appearing for the respondents also l referred to some portions of the judgment but contended that howsoever condemned the sentence may be but its constitutional validity having been accepted by this Court all this study about looking at it from various angles is not of much consequence. He also contended that the opinion has been drifting and the statistics reveal that SMT. TRIVENIBEN v. STATE OF GUJARAT [OZA, J. [ 521 at one time there was a trend towards abolition of death sentence and then a reverse trend started and therefore all this, so far as the present case is concerned, is not necessary.

One of the contentions advanced by learned· connsel for the petitioners was that apart from all other considerations it is clear that this is a sentence which if executed is not reversible and even if later on something so glaring is detected which will render the ultimate conclusion to be erroneous the person convicted and executed could not be brought back to life and it was on this basis that it was contended that although the law provides for the sentence and it has been held to be constitutional but still the Courts should be slow in inflicting the sentence and in fact it was contended that courts are in fact slow in awarding the sentenc_e. In Bachan Singh's case, it was observed: "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views.

' For the purpose of testing the constitutionality of the impugned provision as to death _penalty in Section 320, Penal Code, on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners' argument that retention of the death penalty in the impugned provisions, is totally devoid of reason and purpose.

If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prexailing crime conditions in India, contemporary public opinion channalised through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if tl:e framers of the Indian Constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder another capital offences were before '.

he Parliament and presumably considered by it when in 1972-73, it took up revision of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it cannot be said that the provisions of death penalty as an alternative punishment for murder, in section 302, Penal Code, is unreasonable and not in public interest. Therefore, the impugned provision in section 302, violates neither the letter nor the ethos of Article 19. " We are in entire agreement with the view expressed above. It is not necessary to go into the jurisprudential theories of punishment deterrent or retributive in view of what has been laid down in Bachan Singh's case, with which'we agiee but the learned counsel at length submitted that the modern theor~ts of jurisprudence have given a go-bye to the retributive theory of puni~hment although in some countries it is recognised on a different principle i. e. to pacify the public anger whereas some theorists have tried to put both the theories together.

So far as the deterrent theory of punishment is concerned even about that doubts have been expressed as regards the real deterrent effect of punishment. The absence of deterrrent effect has been attributed to various causes sometimes long delay itself as public memory is always short. When the convict is utlimately sentenced and executed people have forgotten the offence that he has committed and on this basis it is sometimes felt that it has lost its importance. In the . present case we are not very much concerned with alt these questions except to some extent the question of delay and its effect. It was also contended that this sentence is a sentence which is irreversible thereb,y meaning that if ultimately some mistake in convicting and executing the sentence is detected after the sentence is executed there is no possibility of correction.

After alt the criminal jurisprudence which is in vogue in our system even otherwise eliminates all possibilities of error as benefit of doubt at alt stages goes in favot,1r of accused. Apart from it there are only a few offences where sentence of death is provided and there too the manner in which the SMT. TRIVEN! BEN '· STATE OF GUJARAT [OZA, J. J 523 ~aw has now been changed ultimately the sentence of death is awarded A in the rarest of rare case. Therefore not much could be made of the possibility of an error. The offences in which sentence of death is provided are under Sections 120-B (in some cases), 121, 132, 302, 307 (in some cases) and .. 396. B The law as it stood before 1955 the Court was expected to give reasons if it chose not to pass a sentence of death as normally sentence of death was the rule and alternative sentence of imprisonment of life /. could only be given for special reasons.

As Section 367 clause (5) in the Code of Criminal Procedure, 1898 stood: · c "Ifthe accused is convict_ed for an offence punishable with death,. and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed. " D Section 367 clause (5) of Cr. P. C. was amended in 1955 and after-the amendment discretion was left to the courts to give either sentence. Section 367 clause (5) after the amendment reads: .. "In trials by jury, the Court need not write a judgment, but the Court of Sessions shall record the heads of the charge E to the jury: - Provided that it shall not be necessary to record such heads of the charge in cases where th~ charge has been delivered in English and taken down in shorthand. " F Thus the legislature dropped that part of the sub-clause which made it necessary for the Court to state reasons for not awarding sentence of death.

Thus after the amendment the legal position was that it was the discretion of the Court to award either of the sentences. In the Code of Criminal Procedure 1973 Section 354 clause (3) G _. )has now been introduced and it has been provided that in all cases of murder, life imprisonment should be given unless there are special reasons for giving sentence of death. This provision Sec. 354 clause (3)reads: "When the conviction is for an offence punishable with H