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Bachan Singh V/s State of Punjab

Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts. That is why, in the interest of individualized justice, it is necessary to vest sentencing discretion in the court so that appropriate sentence may be imposed by the court in the exercise of its judicial discretion.

Case name:Bachan Singh V/s State of Punjab
Citation:1982 AIR 1325
Court:The Supreme Court Of India
Bench:Justice Chandrachud, Y.V. Jutice Bhagwati, P.N, Justice Sarkaria, Justice Ranjit Singh, Justice Gupta, A.C., Justice Untwalia, N.L.
Decided on:August 16, 1982
Relevant Act/Sections:Section 302 of the Indian Penal Code, 1860, Section 354 (3) of the Code of Criminal Procedure, 1973, Articles 19, 21 of the Constitution of India, 1950, 35th Law Commission Report


  • The Appellant Bachan Singh was convicted for his wife’s murder and was sentenced for life imprisonment. After undergoing the term of imprisonment ( i.e after his release) he was living with his cousin Hukam Singh and his family.  Hukam Singh’s wife and his son objected the appellant’s living in their house.
  • A few days prior to this occurrence in the midnight Vidya Bai was awakened by alarm and saw the appellant inflicting axe blow on her sister’s ( Veeran Bai) face. On the attempt to stop the appellant Vidya Bai got blown on her face and ear with axe leading injuries her face and ear making her unconscious.
  • Diwan Singh who was sleeping at a distance woke up by the shriek and raised an alarm to wake Gulab Singh sleeping at a distance from there. On seeing an appellant with axe on Desa Bai’s face they both hurried to stop him. Noticing them moving towards him the appellant left the axe and ran away. Diwan Singh and Gulab Singh gave a chase to him but couldn’t apprehend him.
  • The dead bodies of Durga bai , Vidya Bai, and Veeran Bai were taken to the hospital and an FIR was recorded.


  • The trial court and high court seeing the grievousness of the injuries in the body of Vidya Bai categorized this into the inhumane act .
  • The trial court and high court both accepted the testimony of Gulab Singh and Diwan Singh because of the fact that it was moonlit night and thus it was possible to recognize the face of the accused .
  • Later Bachan Singh was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions judge.
  • The High Court confirmed his death sentence given by the sessions judge and dismissed his appeal. Bachan Singh then appealed to the Supreme Court by Special Leave, the Question raised in the appeal was, whether the facts of his case were “special reasons” for awarding him the death sentence as required in section 354(3) of CrPC, 1973.


  • Whether the death penalty provided for murder in Section 302 of the Indian Penal Code is unconstitutional?
  • Whether the Facts found by the lower Courts would be considered “special reason” for awarding the death penalty as is required under Section 354(3) CRPC?
  • whether Article 19 is  at all  applicable for  judging  the validity of  the impugned  provision in  Section 302,  Penal Code?


  • The court observed that Article 19, as in force today, reads as under: All citizens shall have the right:     
  • To freedom of speech and expression;        
  • To assemble peaceably and without arms;        
  • To form associations or unions;        
  • To move  freely throughout  the territory  of  India;         
  • To reside  and settle  in  any  part  of  the  territory of India
  • To practice  any profession,  or to  carry on any occupation, trade or business.
  • The court noted that as rightly  pointed  out  by  Shri  Soli  Sorabji,  the condition precedent  for the  applicability of Article 19 is that the  activity which  the  impugned  law  prohibits  and penalises, must  be within  the purview  and  protection  of Article 19 (1). Thus considered, can any one say that he has a legal right or fundamental freedom under Article 19 (1) to practise the  profession of  a hired  assassin  or  to  form associations or  unions or  engage in  a conspiracy with the object of committing murders or dacoities. The argument that the provisions of the Penal Code, prescribing death sentence as an  alternative penalty  for murder  have to be tested on the ground  of Article 19, appears to proceed on the fallacy that the  freedoms guaranteed by Article 19 (1) are absolute freedoms and  they  cannot  be  curtailed  by  law  imposing reasonable  restrictions,   which  may   amount   to   total prohibition.  Such  an  argument  was  advanced  before  the Constitution  Bench   in  The  State  of  Bombay  v.  R.M.D. Chamarbaugwala.(1)
  • The last  sentence which  has been  underlined  by  the court, appears  to   lend  implicit   approval  to   the  rule   of construction adopted  by the  majority of the learned Judges in A.K.  Gopalan’s case,  whereby  they  excluded  from  the purview of Article 19 certain provisions of the Indian Penal Code providing  punishment for  certain offences which could not be  tested on  the specific  grounds-embodied in clauses (2) to  (5) of  that Article. This proposition enunciated in A.K. Gopalan’s case is only a product of the application of the basic canon that a construction which would lead to absurdity, should be eschewed.
  • This passage from the judgment of the learned Judge exposes, in language  remarkable for  its  succinctness  as  well  as eloquence, the  vagarious nature  of the imposition of death penalty and  highlights a  few of the causes responsible for its erratic  operation. The court found myself totally in agreement with these observations of the learned – Judge. But when it was contended that sentencing discretion is inherent in our legal system, and, in fact, it is desirable, because no  two cases  or criminals  are identical and if no discretion is left to the court and  sentencing is  to be  done according  to a  rigid predetermined  formula   leaving  no   room   for   judicial discretion,  the   sentencing  process  would  cease  to  be judicial and  would de-generate  into a  bed of  procrustean cruelty.
  • The  argument was  that having regard to the nature of the  sentencing process, it is impossible to lay down any standards or  guidelines which  will provide for the endless and often  unforeseeable variations  in fact  situations and sentencing discretion  his necessarily  to be  left  to  the court and  the vesting of such discretion in the court, even if  no   standards  or   guidelines  are   provided  by  the legislature for  structuring or challenging such discretion, cannot  be  regarded  as  arbitrary  or  unreasonable. 
  • This argument, plausible though it may seem, is in the court’s opinion not well a founded and  must  be  rejected.  It  is  true  that criminal cases  do not fall into set behaviouristic patterns and it  is almost  impossible to  find two  cases which  are exactly identical. There are, as pointed out by Sarkaria, J. in  the   majority  judgment,  “countless  permutations  and combinations which  are beyond  the anticipatory capacity of the human  calculus”.
  • Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of  facts. That  is why,  in the  interest  of individualised justice,  it is  necessary to vest sentencing discretion in  the court so that appropriate sentence may be imposed by  the  court  in  the  exercise  of  its  judicial discretion,  having   regard  to   the  peculiar  facts  and circumstances of  a given  case,  or  else  the.  sentencing process would  cease to  be just  and rational  and  justice would be sacrificed at the altar of blind uniformity. But at the same  time, the sentencing discretion conferred upon the court cannot  be altogether  uncontrolled or unfettered.
  • The strategy which  is therefore  followed by  the legislatures while creating  and defining  offences is  to prescribe  the maximum punishment  and in  some cases, even the minimum and leave it  to the  discretion of the court to decide upon the actual term  of imprisonment.  This cannot  be  regarded  as arbitrary or  unreasonable since the discretion that is left to the  court is to choose an appropriate term of punishment between the  limits laid  down by  the  legislature,  having regard to  the distinctive  features and  the peculiar facts and circumstances  of  the  case.  The conferment of such sentencing discretion is plainly and indubitably essential for rendering individualised justice. But where   the discretion granted to the court is to choose between life and death without any standards or guidelines provided by the legislature, the death penalty does become arbitrary and unreasonable. The death penalty is qualitatively different from a sentence of imprisonment.
  • The question would still remain whether the ’direct and inevitable consequence’ of that provision is to affect any of the rights guaranteed under the Article. That is a question on which I do not wish to express  any definite opinion. It is sufficient for me to state that  the ’object  and form  test’ or  the  ’pith  and substance  rule’   has  been  completely  discarded  by  the decision in  R.C. Cooper’s case and Maneka Gandhi’s case and it  is   now  settled  law  that  in  order  to  locate  the fundamental right  violated by  a statute,  the  court  must consider what  is the  direct and  inevitable consequence of the statute.  The impugned  statute may  in its  direct  and inevitable effect invade more than one fundamental right and merely  because it satisfies the  requirement of  one fundamental right,  it is  not freed  from the obligation to meet the challenge of another applicable fundamental right.


  • In this case the judgment was given by JUSTICE S.K SARKARIA that these are  the reasons  for which the court made my order dated May 9,  1980 declaring  the  death  penalty  provided  under section 302 of the 371 Indian Penal  Code read  with section 354 sub-section (3) of the Code of Criminal Procedure, 1973 is unconstitutional and void as  being 5  violative of  Articles 14  and 21.
  • The court expressed the profound regret at the long delay in delivering this judgment but the   reason is that there was a considerable mass of material which had to be collected from various sources and then examined and analysed and this took a large amount of time. Appeal dismissed.

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