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Bachan Singh vs. State of Punjab, AIR 1980 SC 898
Hon’ble Judges/Coram: Y.V. Chandrachud, C.J., N.L. Untwalia,
P.N. Bhagwati, R.S. Sarkaria and A.C. Gupta, JJ.
Facts
Bachan Singh, appellant, was tried and convicted and sentenced to death under Section 302 of IPC for the
murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death
sentence and dismissed his appeal.
Then Bachan Singh filed an appeal before the Supreme Court.
Issue
Whether death penalty that has been provided as the punishment for the offence of murder under Section
302of IPC, 1860, is unconstitutional?
Law before Bachan Singh’s Judgment
In Jagmohan Singh vs. The State of U.P., AIR 1973 SC 947, the Constitutional Bench held that the
impossibility of laying down standards (in the matter of sentencing) is at the very core of criminal law as
administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of
punishment and that this discretion in the matter of sentence is liable to be corrected by superior Courts... The
exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard
for the accused. Hence, the death sentence imposed after trial in accordance with the procedure established by
law is not unconstitutional under Article 21.
In Rajendra Prasad vs. State of Uttar Pradesh, AIR 1979 SC 916, it was held that the terrible nature of
the murder should not frenzy the court into necessary ‘capital’ penalty, for its pertinence is only to the extent it
helps to decide whether the prisoner, if released after a few years in a penitentiary, will reasonably be prone to
continued killing. If life-long imprisonment will prevent further killing, he may be allowed to live with the limited
fundamental rights allowed in a prison setting.
Krishna Iyer J. wants the death penalty to be inflicted in the case of three categories of criminals, namely
(1) for white-collar offences, (2) for anti-social offences, and (3) for exterminating a person who is a menace
to the society, that is, a ‘hardened murderer’.
Failure to impose a death sentence in such grave cases where it is a crime against the society-particularly
in cases of murders committed with extreme brutality, will bring to nought the sentence of death provided by
Section 302 of the Indian Penal Code, 1860.
Legislative history of the provisions of the Penal Code which permit the imposition of death
penalty for certain offences.
Section 53 of the Penal Code enumerates punishments to which offenders are liable under the provisions
of this Code. Clause Firstly of the Section mentions ‘Death’ as one of such punishments. Regarding ‘death’ as
a punishment, the authors of the Code say: “We are convinced that it ought to be very sparingly inflicted, and
we propose to employ it only in cases where either murder or the highest offence against the State has been
committed.” Accordingly, under the Code, death is the punishment that must be awarded for murder by a
person under sentence of imprisonment for life (Section 303). This apart, the Penal Code prescribes ‘death’ as
an alternative punishment to which the offenders may be sentenced, for the following seven offences :
(1) Waging war against the Government of India. (Section 121)
(2) Abetting mutiny actually committed. (Section 132)
(3) Giving or fabricating false evidence upon which an innocent person suffers death. (Section 194)
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(4) Murder which may be punished with death or life imprisonment. (Section 302)
(5) Abetment of suicide of a minor or insane, or intoxicated person. (Section 305)
(6) Dacoity accompanied with murder. (Section 396)
(7) Attempt to murder by a person under sentence of imprisonment for life if hurt is caused. (Section
307)
Observation
The guidelines have been issued by the Supreme Court as to when the extreme sentence (death) should be
awarded:
(1) The extreme penalty of death need not to 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. The entire drift of the legislation is
against infliction of death penalty and the courts are most reluctant to impose it save in the rarest of
rare cases.
(4) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the
mitigating circumstances has to be accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances before such option is exercised.
“It is obvious from the provision enacted in Section 354(3) of the CrPC that death sentence is legislatively
regarded as disproportionate and excessive in most cases of murder and it is only in exceptional cases what
Sarkaria, J. speaking on behalf of the majority, describes as “the rarest of rare” cases, that it can at all be
contended that death sentence is proportionate to the offence of murder. But, then the legislature does not
indicate as to what are those exceptional cases in which death sentence may be regarded as proportionate to
the offence and, therefore, reasonable and just. Merely because a murder is heinous or horrifying, it cannot be
said that death penalty is proportionate to the offence when it is not so for a simple murder. How does it
become proportionate to the offence merely because it is a ‘murder most foul’. I fail to appreciate how it
should make any difference to the penalty whether the murder is a simple murder or a brutal one. A murder is
a murder all the same whether it is carried out quickly and inoffensively or in a gory and gruesome manner. If
death penalty is not proportionate to the offence in the former case, it is difficult to see how it can be so in the
latter.
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