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 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.

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

• BRIEF FACTS AND PROCEDURAL HISTORY:
• 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.
• PROCEDURAL HISTORY:
• 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.

• ISSUES BEFORE THE COURT
• Whether death penalty provided for the offence of murder in Section 302 of the Penal Code is unconstitutional.
• If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Penal Code, 1860 with death or, in the alternative, with imprisonment for life.”
• RATIO OF THE COURT
• The court observed that it is rightly pointed out by Shri Soli Sorabjee, 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.
• In A.K. Gopalan v. State of Madras [AIR 1950 SC 27 : (1950) 1 SCR 88 : 1950 SCJ 174] , all the six learned Judges constituting the Bench held that punitive detention or imprisonment awarded as punishment after conviction for an offence under the Penal Code, 1860 is outside the scope of Article 19, although this conclusion was reached by them by adopting more or less different approaches to the problem. Patanjali Sastri, J., also, opined that lawful deprivation of personal liberty on conviction and sentence for committing a crime, or by a lawful order of preventive detention is “not within the purview of Article 19 at all, but is dealt with by the succeeding Articles 20 and 21”. 
• The court observed that it is clear that the test of direct and indirect effect was not scrapped. Indeed, there is no dispute that the test of ‘pith and substance’ of the subject-matter and of direct and of incidental effect of legislation is a very useful test to determine the question of legislative competence i.e. in ascertaining whether an Act falls under one entry while incidentally encroaching upon another entry. Even for determining the validity of a legislation on the ground of infringement fundamental rights, the subject-matter and the object of the legislation are not altogether irrelevant. For instance, if the subject-matter of the legislation directly covers any of the fundamental freedoms mentioned in Article 19(1), it must pass the test of reasonableness under the relevant head in clauses (2) to (6) of that Article. If the legislation does not directly deal with any of the rights in Article 19(1), that may not conclude the enquiry. It will have to be ascertained further whether by its direct and immediate operation, the impugned legislation abridges any of the rights enumerated in Article 19(1).
• The court finally observed penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1). We cannot, of course, say that the object of penal laws is generally such as not to involve any violation of the rights conferred by Article 19(1) because after the decision of this Court in the Bank Nationalisation case [Rustom Cavasjee Cooper v. Union of India, (1970) 3 SCR 530 : (1970) 1 SCC 248] the theory, that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, stands discredited.
• In the instant case, the State has discharged its burden primarily by producing for the perusal of the court, the 35th Report of the Law Commission, 1967, and the judgments of this Court in Jagmohan Singh [(1973) 1 SCC 20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] and in several subsequent cases, in which it has been recognised that death penalty serves as a deterrent. It is, therefore, for the petitioners to prove and establish that the death sentence for murder is so outmoded, unusual or excessive as to be devoid of any rational nexus with the purpose and object of the legislation.
• The court further held that in Jagmohan [(1973) 1 SCC 20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] , also, this Court took due note of the fact that for certain types of murders, death penalty alone is considered an adequate deterrent:

“A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval of the society.”

• Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, appearing before the British Royal Commission on Capital Punishment, stated his view on this point as under:

“Punishment is the way in which society expresses its denunciation of wrongdoing; and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else…. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.”

• The court took a review of the world events of the last seven or eight years, as evident from Encyclopaedia Britannica Year-Books and other material referred to by the learned Counsel, would show that most countries in the world are in the grip of an ever-rising tide of violent crime.
• Murders for monetary gain or from misdirected political motives, robbery, rape, assault are on the increase. India is no exception. The Union of India has produced for our perusal a statement of facts and figures showing the incidence of violent crime, including murder, dacoity and robbery, in the various States of India, during the years 1965 to 1975. Another statement has been furnished showing the number of persons convicted of murder and other capital offences and sentenced to death in some of the States of India during the period 1974 to 1978. This statement, however, is incomplete and inadequate. On account of that deficiency and for the general reasons set out above, it cannot, even statistically, show conclusively or with any degree of certainty, that capital punishment has no penological worth. But the first statement does bring out clearly the stark reality that the crimes of murder, dacoity and robbery in India are since 1965 increasing.
• Coming back to the review of the world crime situation, during the last decade, Saudi Arabia and some other countries have reinstated death penalty or enacted harsher punishments not only for murder but for some other crimes, also.
• In America, apart from 32 States which reinstated death penalty under revised laws after Furman [33 L Ed 2d 346 : 408 US 238 (1972)] the legislatures of some of the remaining 15 States have either reinstituted or are considering to reintroduce death penalty.
• In Britain, in the wake of serious violent incidents of terrorism, a Bill was moved in Parliament to reintroduce capital punishment for murder and certain other offences. It was defeated by a free vote on April 19, 1979. Even so, no less than 243 Members of Parliament had voted in favour of this measure. We have noted that Israel has also recently reinstituted death penalty for certain criminal ‘acts of inhuman cruelty’.
• In People’s Republic of China, a new legislation was adopted on July 1, 1979 by China’s Parliament, according to Article 43 of which, death penalty can be imposed “for the most heinous crimes”.
• In Argentina, the death penalty was reintroduced in 1976. Similarly, Belgium reintroduced death penalty and increased the number of crimes punishable with death.
• In France, in 1978, a movement in favour of abolition initiated by the French bishops failed to change the law under which death penalty is a valid sanction for murder and certain other offences. In Japan, death penalty is a legal sanction for 13 crimes.
• In Greece and Turkey, death penalty can be imposed for murder and other capital offences. In Malaysia and the Republic of Singapore under the Durgs Act of May, 1979, misuse of drugs is also punishable with death. Cuba introduced a new Penal Code in February 1978, which provides punishment of death by shooting for crimes ranging from some types of murder and robbery to hijacking and rape.
• In the USSR (Russia), as many as 18 offences are punishable with death.
• The court finally observing notions like mindset of legislature and framers observed that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19.
• India, as a member of the International Community, was a participating delegate at the international conference that made the Stockholm Declaration on December 11, 1977, that India has also accepted the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations, which came into force on March 23, 1966, and to which some 47 countries, including India, are a party. This being the position, it is stressed, India stands committed to the abolition of the death penalty. It is contended that the constitutional validity and interpretation of the impugned limb of Section 302 of the Penal Code, and the sentencing procedure for capital cases provided in Section 354(3) of the Code of Criminal Procedure, 1973, must be considered in the light of the aforesaid Stockholm Declaration and the International Covenant, which represent the evolving attitudes and standards of decency in a maturing world.
• The court observed that It will be pertinent to note that most of the countries including those who have subscribed to this international covenant, retain death penalty for murder and certain other crimes even to the present day in their penal laws. Neither the new interpretative dimensions given to Articles 19 and 21 by this Court in Maneka Gandhi [(1978) 1 SCC 248 : (1978) 2 SCR 621] and Charles Sobraj v. Supdt., Central Jail [(1978) 4 SCC 104 : 1978 SCC (Cri) 542 : (1979) 1 SCR 512] , nor the acceptance by India of the International Covenant on Civil and Political Rights, makes any change in the prevailing standards of decency and human dignity by which counsel require us to judge the constitutional validity of the impugned provisions. The international covenant, as already noticed, does not outlaw capital punishment for murder, altogether. For all the foregoing reasons, the court answered the first main question in the negative.
• The court while taking note of constitutional validity of section 354 (3) of crpc observed that yhe High Court has been given very wide powers under these provisions to prevent any possible miscarriage of justice. In State of Maharashtra v. Sindhi [(1975) 1 SCC 647 : 1975 SCC (Cri) 283 : AIR 1975 SC 1665] , this Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge.
• Similarly, where on appeal, the High Court reverses an acquittal, and convicts the accused person and sentences him to death, Section 379 of the Code of 1973 gives him a right of appeal to the Supreme Court. Finally, there is Article 136 of the Constitution under which the Supreme Court is empowered, in its discretion, to entertain an appeal on behalf of a person whose sentence of death awarded by the Sessions Judge is confirmed by the High Court.
• The court further observed that In Jagmohan [(1973) 1 SCC 20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] , this Court had held that this sentencing discretion is to be exercised judicially on well recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By “well recognised principles” the court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan [(1973) 1 SCC 20 : 1973 SCC (Cri) 169 : (1973) 2 SCR 541] — as we have discussed already — do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the circumstances, of the offence, due regard must be paid to the circumstances of the offender, also.
•  Pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind.
• The cpurt finally observed  that Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends 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. This is so because “style is the man”. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. 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. And it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist.

• DECISION HELD BY COURT:
• 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.