CRIMINAL LAW

P.S.D.A.

JUDGMENT ANALYSIS
[BALWANT SINGH VS. STATE OF PUNJAB]

NAME: RAHUL NAIR

CLASS: 3-D
ENR. NO.: 16010303816
SUBMITTED TO: Ms. ASTHA JAIN
INTRODUCTION

The appellant, Balwant Singh, was aged about 60 years at the time of the occurrence. He was
working as a Granthi of a Gurudwara in village Salihna District Faridkot. Mohan Singh the deceased
was a member of the Managing Committee of the Gurudwara. He made certain complaints against
the appellant to the President of the Managing Committee and asked for his removal from the post of
the Granthi. The appellant, therefore, bore a grudge against the deceased.

In the early hours of April 13, 1974 the appellant gave Karah Parshad of Granth Sahib to Mohan
Singh mixing opium it. As soon as Mohan Singh took the Parshad he felt sick and his heart began to
sink. In spite of the medical aid he could not survive and died about 4 hours after the administering
of the poison to him by the appellant.

On the facts found by the learned Sessions Judge and as affirmed by. the High Court, the appellant
was convicted under section 302 of the Penal Code. The question for consideration is whether the
sentence of death was rightly passed. It may be noticed that the occurrence took place on April 13,
1974 after coming into force of the Criminal Procedure Code, 1973 on and from April 1, 1974.
Provisions of Section 354(3) of the new Code, as noticed by the High Court, governed this case. Yet
the High Court confirmed the sentence of death relying upon two decisions of this Court which were
not concerned with the application of law engrafted in section 354(3) of the Code of Criminal
Procedure, 1973 but were given with reference to the Code of Criminal Procedure Code, 1898 as it
stood at the relevant time.

Court Judgment Information

 Year: 1975
 Date: 11 November 1975
 Court: Supreme Court of India
 INSC: [1975] INSC 273
 Citation: 1976 AIR 230
 ACT: Code of Criminal Procedure (Act II) 1973-Section 354(3) Scope of.
 Bench: Untwalia, N.L.Goswami, P.K.

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HEADNOTE

The appellant, `B’ aged 60 years, on 13-4-1974 was convicted u/s 302 I.P.C. For the murder of `M’
by poisoning on that date. On appeal by special leave on the limited question of sentence under the
new Criminal Procedure Code of 1973, the Court.

HELD

(i) In India the Legislature in its wisdom has not thought it fit and proper to abolish the death penalty
altogether, but there has been a gradual swing against the imposition of such penalty. [685-F].

(ii) Under section 354(3) of the Criminal Procedure code, 1973, the Court is required to state the
reasons for the sentence awarded and in the case for the’ sentence of death special reasons are
required to be stated.

Awarding of the sentence other than the sentence of death is the general rule now and only special
reasons or special facts and circumstances in a given case will warrant the passing of a death
sentence like:-

(i) the crime having been committed by professional or a hardened criminal.

(ii) crime committed in a very brutal manner or on a helpless child or woman. [686, C, D].

(iii) In the instant case (a) even after noticing the provisions of the section 354(3) of the new
Criminal Procedure Code, the High Court wrongly relied on the principle of absence of extenuating
circumstance, and,

(b).There was no special reason nor any has been recorded by the High Court for confirming the
death sentence. [686 F, G]

Mangal Singh v. State of U.P., A.I.R. 1975 S.C. 76 and Perumal v. The State of Kerala, A.I.R. 1975
S.C. 95 not applicable.

JUDGMENT FOR

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 301 of 1975.

Appeal by Special Leave from the Judgment and order dated the 25th April, 1975 of the Punjab &
Haryana High Court at Chandigarh in Criminal Appeal No. 1325 of 1974 and Murder Reference No.
59 of 1 974.

For Appellant- S. K. Mehta, M. Qamaruddin and K. R. Nagaraja. For Respondent- O. P. Sharma.

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JUDGMENT ANALYSIS

The Judgment of the Court was delivered by UNTWALIA, J.-Balwant Singh, the sole appellant in
this appeal, was convicted under section 302 of the Penal Code and sentenced to death by the Trial
Court. His conviction and sentence have been confirmed by the High Court of Punjab and Haryana.
Special leave to appeal was granted by this Court limited to the question of sentence only. We have,
therefore, to see whether on the facts of this case the High Court was right in confirming the death
sentence imposed upon the appellant or was is, a case where the lesser sentence of life imprisonment
ought to have been awarded.

It is well-known that in many parts of the world an agitation has been going on against the imposition
of death penalty even in murder cases. And in many countries or States death penalty has been
abolished. In India the Legislature in its wisdom has not thought it fit and proper to abolish the death
penalty altogether but there has been a gradual swing against the imposition of such penalty. Under
the Code of Criminal Procedure, 1898 as it stood before its amendment by Act 26 of 1965, sub-
section (5) of Section 367 required:

"If the accused is convicted of an offence punishable with death, and the Court sentences him to any
punishment other than death, the Court shall in its judgment state the reason why sentence of death was not
passed:"

Under the provision aforesaid if an accused was convicted for an offence punishable with death then
imposition of death sentence was the rule and awarding of a lesser sentence was an exception and the
Court had to state the reasons for not passing the sentence of death. By the Amending Act 26 of 1955
the said provision was deleted. Thereafter it was left to the discretion of the Court, on the facts of
each case, to pass the sentence of death or to award the lesser sentence. In the context of the changed
law if in a given case the passing of the death sentence was not called for or there were extenuating
circumstances to justify the passing of the lesser sentence then the lesser sentence was awarded and
not the death sentence.

Section 354(3) of the new Criminal Procedure Code says:

When the conviction is for an offence punishable with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the special reasons for such sentence, Under this
provision the Court is required to state the reasons for the sentence awarded and in the case of
sentence of death, special reasons are required to be stated.

It would thus be noticed that awarding of the sentence other than the sentence of death is the general
rule now and only special reasons, that is to say, special facts and circumstances in a given case, will
warrant the passing of the death sentence. It is neither unnecessary nor is it possible to make a

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catalogue of the special reasons which may justify the passing of the death sentence in a case. But we
may indicate just a few, such as, the crime has been committed by a professional or a hardened
criminal, or it has been committed in a very brutal manner or on a helpless child or a woman or the
like.

CAPITAL PUNISHMENT IN INDIA

The Supreme Court in Mithu vs. State of Punjab struck down Section 303 of the Indian Penal Code,
which provided for a mandatory death sentence for offenders serving a life sentence.

The number of people executed in India since the nation achieved Independence in 1947 is a matter
of dispute; official government statistics claim that fifty-two people had been executed since
Independence. However, research by the People's Union for Civil Liberties indicates that the actual
number of executions is in fact much higher, as they located records of 1,422 executions in the
decade from 1953 to 1963 alone. Research published by National Law University, Delhi on death
row convicts since 2000 had found that of the 1,617 prisoners sentenced to death by trial courts in
India, capital punishment was confirmed in only seventy-one cases. NLU Delhi confirmed 755
executions in India since 1947. National Law University, Delhi examined 1,414 prisoners who were
executed, in the available list of convicts hanged in post-Independence since 1947. According to a
report of the Law Commission of India (1967), the total number of cases in which the death sentence
was awarded in India from 1953-63 was 1410.

In December 2007, India voted against a United Nations General Assembly resolution calling for a
moratorium on the death penalty. In November 2012, India again upheld its stance on capital
punishment by voting against the UN General Assembly draft resolution seeking to end the
institution of capital punishment globally.

On 31 August 2015, the Law Commission of India submitted a report to the government which
recommended the abolition of capital punishment for all crimes in India, excepting the crime of
waging war against the nation or for terrorism-related offences. The report cited several factors to
justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and
flawed application and its lack of any proven deterring effect on criminals.

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860
(IPC), which listed a number of capital crimes. It remained in effect after independence in 1947. The
first hanging in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma
Gandhi assassination case on 15 November 1949.

Under Article 21 of the Constitution of India, no person can be deprived of his life except according
to procedure established by law.

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In Bachan Singh vs. State of Punjab (1980):-

The Constitution Bench judgment of Supreme Court of India in Bachan Singh vs. State of Punjab
(1980) (2 SCC 684) made it very clear that Capital punishment in India can be given only in rarest of
rare cases. This judgement was in line with the previous verdicts in Jagmohan Singh vs. State of
Uttar Pradesh (1973), and then in Rajendra Prasad vs. State of Uttar Pradesh (1979). The Supreme
Court of India ruled that the death penalty should be imposed only in "the rarest of rare cases." ]
While stating that honour killings fall within the "rarest of the rare" category, Court has
recommended the death penalty be extended to those found guilty of committing "honour killings",
which deserve to be a capital crime. The Supreme Court also recommended death sentences to be
imposed on police officials who commit police brutality in the form of encounter killings.

An appeal filed in 2013 by Vikram Singh and another person facing the death sentence questioned
the constitutional validity of Section 364A of the Indian Penal Code.

OTHER LEGISLATION

In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have
provisions for the death penalty.

Sati is the burning or burying alive of any widow or woman along with the body of her deceased
husband or any other relative or with any article, object or thing associated with the husband or such
relative. Under The Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1), if any person
commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be
punishable with death.

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, 1989 was enacted to
prevent the commission of offences of atrocities against the members of the Scheduled Castes and
the Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness in a capital case against
a member of a scheduled caste or tribe, resulting in that person's conviction and execution, carries the
death penalty. In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed
which applied a mandatory death penalty for a second offence of "large scale narcotics trafficking".

In recent years, the death penalty has been imposed under new anti-terrorism legislation for people
convicted of terrorist activities. On 3 February 2013, in response to public outcry over a brutal gang
rape in Delhi, the Indian Government passed an ordinance which applied the death penalty in cases
of rape that leads to death or leaves the victim in a "persistent vegetative state". The death penalty
can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.

In January 2014, a three-judge panel headed by Chief Justice of India Palanisamy Sathasivam
commuted sentences of 15 death row convicts, ruling that the "inordinate and inexplicable delay is a
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ground for commuting death penalty to life sentence". Supreme Court of India ruled that delays
ranging from seven to 11 years in the disposal of mercy pleas are grounds for clemency. The same
panel also passed a set of guidelines for the execution of a death row convict, which includes a 14-
day gap from the receipt of communication of the rejection of the mercy petition to the scheduled
execution date, after going through the Shatrughan Chauhan vs. Union of India case. Subsequently,
in February 2014, Supreme Court commuted death sentence of Rajiv Gandhi's killers on the basis of
11-year delay in deciding on mercy plea. It was subsequently commuted to life imprisonment. In
March 2014, Supreme Court of India commuted death sentence of Devinder Pal Singh Bhullar,
convicted in a 1993 Delhi bombings case, to life imprisonment, both on the ground of
unexplained/inordinate delay of eight years in disposal of mercy petition and on the ground of
insanity/mental illness/schizophrenia.

CURATIVE PETITION

The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa
Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved person
is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a
review petition. The Supreme Court in the said case held that to prevent abuse of its process and to
cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.

CONCLUSION

On the facts of this case, it is true that the appellant had a motive to commit the murder and he did it
with an intention to kill the deceased. His conviction under section 302 of the Penal Code was
justified but the facts found were not such as to enable the Court to say that there were special
reasons for passing the sentence of death in this case The High Court has referred to the two
decisions of this Court namely in Mangal Singh v. State of U.P.(1) and in Perumal v. The State of
Kerala(2) and has then said "There are no extenuating circumstances in this case and the death
sentence awarded to Balwant Singh appellant by the Sessions Judge is confirmed.. ".

As we saw above, even after noticing the provisions of section 354(3) of the new Criminal Procedure
Code the High Court committed an error in relying upon the two decisions of this Court in which the
trials were held under the old Code. It wrongly relied upon the principle of absence or extenuating
circumstances a principle which was applicable after the amendment of the old Code from January 1,
1956 until the coming into force of the new Code from April 1, 1974. Hence, in their judgment, there
is no special reason nor any has been recorded by the High Court for confirming the death sentence
in this case. Accordingly they allowed the appeal on the question of sentence and commute the death
sentence imposed upon the appellant to one for imprisonment for life.

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