CASE ANALYSIS OF

BACHAN SINGH V. STATE OF PUNJAB

BY
PULKIT ARORA
INTERN
1stYEAR,
INSTITUTE OF LAW, NIRMA UNIVERSITY
Mob-7822002220
Gmail-arorapulkit21@gmail.com

www.probono-india.in

26thAPRIL, 2020
 OUTLINE OF THE CASE ANALYSIS

FACTS OF THE CASE...................................................................................................................3

ISSUES.........................................................................................................................................5

FACT IN THE ISSUE......................................................................................................................6

ARUGUMENTS.............................................................................................................................9

JUDGMENT................................................................................................................................10

DOCTRINE OF RAREST OF RARE CASE....................................................................................12

INTERNATIONAL CONVENTION OF DEATH PENALTY...............................................................14

INTERPRETATION OF ARTICLE 14, 19 AND 21..........................................................................15

CONCLUSION.............................................................................................................................18

REFERENCES.............................................................................................................................19
 FACTS OF THE CASE

 The appellant Bachansingh convicted under section 302 for the murder of his wife
and was sentenced to life term imprisonment. After undergoing the term
imprisonment he was released. After released he started living with his cousin
Hukumsingh PW: 5 for next six month. Some contention started between
Bachansingh and son of Hukumsingh after dispute his wife and son started objection
for the living of Bachansingh in their house. A few days earlier of incident
Hukumsingh and his went to Nainital in connection with their song marriage. On 4
July, 1977, Desasingh son of Hukumsingh, Veeran Bai, Vidya Bai and Durga Bai
were sleeping in the home. Durga Bai and Veeran Bai sleeping adjacent to each other
and the three daughter sleeping in another courtyard. The appellant and Desa Singh
son of Hukumsingh were sleeping in outer courtyard near each other. On one
midnight Vditya Bai PW 2 suddenly awaked with trepidation and he saw the appellant
moving Kulhari (Axe) and inflicted it on the face of her sister Veeran Bai. When
Vidya Bai tried to stop him he inflicted axe blow on her face and ear. She fell
unconscious and unable to utter a single word. Diwansingh PW 12 who was sleeping
in inner courtyard he saw the appellant hitting Kulhari (Axe) on the Desasingh and
Gulab Singh PW: 3 who was sleeping at a distance of 30 feet from there he saw the
appellant striking axe on the neck of Desasingh. When witness screamed after seeing
the incident then appellant through the Kulhari (Axe) and run away from the house.
Gulab Singh PW: 5 and Diwansingh PW: 12 went to caught him but they unable to
held him. After few minute PW: 4 reached at the place of incident and heard from the
witness about the occurrence of incident.1
 A vehicle was brought and Veeran Bai, Vidya Bai and Desasingh were taken to the
hospital at Fazilka. The doctor, scrutinize the dead bodies and gave necessary
treatment to injured person. When ASI PW: 13 came to knew the case then he went to
hospital and recorded all the statement from the PW: 12 on this ground ASI had
registered the FIR at the police station at 4:20 A.M on July 5 1997.Then they
proceeded with the investigation and on the basis of medical evidence court found

1
Rahul Agarwal, Case Summary Bachan Singh VS State of Punjab, (Educentric, 20 August, 2019)
http://www.educentric.in/blog-details.html?id=314&blog=case%20summary%20bachan%20singh%20vs
%20state%20of%20punjab accessed 2 May 2020.

3
 that in accordance with injured witness PW: 2 and other two witness PW: 12 and 3 the
prosecution had established the case “beyond reasonable doubt”.
 The court found on the basis of evidence that Vidya Bai who is daughter of
Hukumsingh has suffered a grave injury and she saw the appellant was attacking with
KULHARI (AXE). The evidence was that it was moonlight night and there was enough
light to recognize the assailant. The Session Court and High Court found the evidence
of PW: 2 is a trustworthy. In accordance with the evidence of PW: 12, PW: 15, PW: 3
and PW: 2 the High Court observed that on the basis of evidence by witness the
accused Bachan Singh held liable for capital punishment under section 302. Here,
question arose that is it necessary to provide special reason by awarding the death
penalty under section 354(3) of criminal procedure code.
 Section 302 read with sub-clause (3) of section 354 of Cr.P.C. deal with imposition of
capital punishment.
 Before the amendment of the section 367(5) of Cr.P.C. the punishment for offence of
murder is death penalty after the amendment of this section 354(3) the normal
punishment for the offence of murder is life imprisonment. If the court award death
sentence then the court has to mention special reason on record.
 In Dalipsingh v. state of Punjab,2 court held that in the case of murder the court
usually impose capital punishment unless the judge has special reason to mitigate the
punishment. After the amendment the of section 367 court has to give special reason
in case of Raghubirsingh v. state of U.P,3the discretion of the court became wider
whether to impose capital punishment or life imprisonment.
 The appellant move to supreme court by special leave under article 136 of the Indian
constitution, challenged the validity of capital punishment and there question arouse
that whether the fact found by the lower court would be a “special reason” in
awarding capital punishment under section 302.

2
[1954] SCR 145.
3
AIR 1971 SC 2156.

4
 -

ISSUES

 Whether the imposition of death penalty under Section 302 of IPC read with section
302 of Cr.P.C was arbitrary or unconstitutional?
 Whether the sentencing proceeding or fact found by the lower court would be
considered “special reason” for awarding the death penalty as is required under
Section 354(3) Cr.P.C.

5
 FACT IN THE ISSUE

With regard to first issue

 Law commission of India has submitted its 35 th report in 1967 .and it looked into
the matter of capital punishment. This report recommends the retention of the
capital punishment in India. It has been felt by law Commission of India that the
economics, social and culture context have been changed
 With the view to finding the constitution validity of the impugned provision in
section 302 of the Cr.P.C. on the ground of reasonableness with article 19 and 21
of the Indian constitution, court has observed that not to express any categorical
opinion because debate over death penalty has been contention between
Abolitionists or Retentionist. One party contended that it should be utterly abolish
and other one contended that it should be retain. Both the group are mainstay on
their antagonistic view. Further it was observed that the framer of the Indian
constitution has retained it but Dr B.R Ambedkar was in favour of abolition of
capital punishment. After independence India retained some law which were
framed by the British government including the criminal procedure code (1898)
and Indian penal code (1860).In IPC six punishment has been defined including
death penalty.4 Law commission recommend to revise of criminal procedure code
in 1973 when it again enact many notable changes were made to the existing
British law after amendment new section were inserted 235 (3) and 354(3) in that
code mention the pre-sentencing hearing and post procedure after conviction for
murder and other capital sentence before the parliament to scrutinize and in the
new amended code it was not possible to retain that provision of death penalty is
alternative for capital punishment and then Supreme court held valid of death
penalty but in ‘rarest of rare’ case to mitigate the arbitrariness of the punishment.
 Further court held in case of Jagmohansingh v. State of India,5that death penalty
do not violate the fundamental right Article 14,19 and 21and observed that death
penalty is alternative punishment for murder and it is not arbitrary and it is in the
public interest. Section 302 of IPC define the punishment for murder whoever

4
. Anjali and Kannappan, ‘A Critical Study on Punishment with Reference to Section 302 of IPC’ (2018) (119)
17 https://acadpubl.eu/hub/2018-119-17/1/95.pdf accessed 4 May 2020.
5
[1973] SCR (2) 541.

6
 commit murder shall be punished with death or life imprisonment and shall be
liable for fine.

With regard to second issue

 Section 354(3) of Cr.P.C deals with the when the person is punishable with death or
with the life imprisonment then the judgment shall be state the special reason for
awarding sentence. It follow the death sentence shall be awarded after due
consideration and not unreasonable. The retentions emphasis on point that the accused
has right to appeal in High Court against the order of the session Court and further the
accused has right to appeal in supreme court also .Moreover, supreme court held in
various number of cases that the power given to higher authority because it is presume
that the power should not be used arbitrary without due consideration.
 In case of Deena v. Union of India,6 challenge the constitutional validity of section
354(five) I.P.C. 1973 turned into challenged at the ground that via rope as prescribed
by this segment become barbarous, inhuman and degrading and therefore violative of
Art. 21. It became urged that state must offer a humane and dignified approach for
executing death sentence. The court docket unanimously held that the method
prescribed under section 354(5P) for executing the loss of life sentence by way of
putting through rope does now not violate Art. 21. The court held that section 354(5)
of the I.P.C., which prescribed hanging as mode of execution laid down reasonable
and affordable method within the means of Art- 21 and as a result is constitutional.
According to the report of U.K royal commission 1949, opinion of forensic scientist
or law commission, court held that hang by rope is less painful procedure for carry out
the death sentence than any other method The judges declared that neither
electrocution, nor deadly gasoline, or shooting, nor even the deadly injection has "any
distinct or advantage” over-the machine of placing by using rope.
 Therefore, Abolitionist asserted that if the court sentence death penalty it is will not
accepted by the society and it is not desirable by the society to take the life of person.
Sometime they argue that death penalty is undesirable cannot be held to be
Constitutional. On the contrary, the retentions argue that capital punishment may be
necessary in certain exceptional case. It became submitted that neither the
circumstance that the appellant was formerly convicted for murder and after
committed murder he has served life time imprisonment for earlier case. After

6
[1984] SCR (1) 1.

7
 committed these three murders it has been constituted that it is inhumane, diabolic and
inhume it is sufficient to constitute a “special reason’ under section 354(3) of criminal
procedure code.
 In Jagmohan’s case court held that the impossibility of laying down the standard is
very main part of criminal law in India as administered in India in which Judges hold
very wide discretion power in deciding the degree of punishment. This is safest guard
to discretion on well recognized principle on final analysis. Such peculiar grounds
alone constitutionally qualify as unique reasons as leave no choice to the courtroom
however to execute the perpetrator if state and society are to survive. It is not possible
to make distinction of the special reason which may qualify the passing of death
sentence.7
 It was considered that the current legislative policy conceive from section 235(2)
read with section 354(3) is that in deciding the degree of punishment it is not
necessary for court to confine itself to the establish principle or merely to the situation
connected with the specific crime, but also give wide consideration to the
circumstance of the criminal.

7
Supra Note 5.

8
 ARGUMENTS

APPELLANT’S ARGUMENT

 Appellant sought to challenge it to larger bench for constitutional validity of death

penalty.
 Appellant challenge the validity of imposition of death penalty on ground of
fundamental right it was contended that it is put end to all the fundamental right
guarantee by clause (a) to (g) of sub-clause (1) of article 19 of the Indian constitution
and asserted that the law of capital punishment is arbitrary and unconstitutional and it
also against the public interest.
 Judges has unguided discretion power to impose death penalty it violate the Article 14
of the Indian Constitution.
 It was asserted that it provision of law does not provide circumstance for deciding
between the death penalty and imprisonment for life. Therefore, it violate Article 21.

RESPONDENT’S ARGUMENT

 Court has discretionary power to impose death penalty under 302

 Article 19 (1) is not absolute fundamental right it is subject to restriction.
 Article 21 deals with right to live, though it mitigates the imposition of death
sentence has led to increase in crime. Heinous offences attract less penalty and the
offender are not serious about their act.
 Under section 354(3) court has special reason to impose capital punishment because
the crime committed by appellant is diabolic and inhumane.
 No one has right to life of other human being except in case of self-defence.

9
 JUDGMENT

 The apex court dismissed the challenge of the constitutional validity of section 302 of
Cr.P.C.
 Court held that all six fundamental right are not absolute they are subject to
reasonable restriction
 In this case constitutional bench overrule the decision of the Rajendra Prasad case It
was held by the court that impugned provision under section 302 of IPC neither
violate article 19 nor 21 .Article 21 of the constitution recognizes the state has right to
deprive the life of the person with, just fair and reasonable manner established by way
of valid law. In view of the constitutional provision via no stretch of creativeness it
could be said that death penalty under section 302, I.P.C. Either in line with se, or due
to its execution by using striking constitutes an unreasonable cruel or uncommon
punishment. The death penalty for the offence of homicide does now not violate the
basic characteristic of the constitution.8
 The International covenant on civil and political Rights to which India became
member in 1979 .It do not abolish imposition of dying penalty in all circumstances.
All that it requires is, that (1) demise penalty need not to be arbitrarily inflicted, (2) it
ought to be imposed simplest for maximum serious crimes. Thus the necessities of
International Covenant is ensures or prohibitions contained in Articles 20 and 21 of
our constitution. The Indian Penal Code prescribes death penalty for heinous crimes.
Indian Penal laws are accordingly completely in accord with global dedication. It has
been recognized that state has right to maintain law and order and to impose death
penalty with fair and reasonableness according to procedure establish by the law. It
has been observed that maker of Indian constitution were also aware the existence of
death penalty and several other offences in Indian penal Code. The constitutional
validity of Section 354(3) of Code of Criminal Procedure is attacked at the floor that -
A sentence of death is the intense penalty of law and it's miles however truthful that
after a Court awards that sentence in a case where the opportunity sentence of
imprisonment for life is likewise to be had, it should deliver special reasons in guide
of the sentence. Accordingly, Sub-section (3) of Section 354 of the Code of Criminal
Procedure, 1973 gives: When the conviction is for an offence punishable with death

8
Supra Note 1.

10
 or, with imprisonment for life or imprisonment for a time period of years, the
judgment shall state the reasons for the sentence awarded and, in the case of sentence
of demise, the unique reasons for such sentence.
 Court with the majority of 4:1 rejected the undertaking to the constitutionality of
Section 302 of the Indian Penal Code in so far because it provides for the capital
punishment as also challenged the constitutional validity of Section 354(3) of the Cr.
pc, 1973. The Writ Petitions and other connected matters might also now be located
for listening to, within the normal course, before the Division Bench for attention of
the person cases on merits, inside the light of the standards promulgate in the majority
judgment.
 Indian Judiciary has made it distinct that the death penalty shall be impose in “rarest
of rare case”. The main focus of judgment in on this pungent gap of ‘human right
jurisprudence’ within the scope of the Penal code. Judge take life of human value into
consideration, a culture inheritance with the humanity and a concern for social justice
as preserving the right of individual, with the ingrain text of the penal Code to achieve
the goals desiderated by the preamble and Article 14, 19 and 21.

11
 DOCTRINE OF RAREST OF RARE CASE

 After amendment legislative has changed the death sentence from normal punishment
to exception and back by the special reason. Bachan Singh v. State of Punjab was a
landmark judgment in which constitutional bench has established the doctrine of
‘rarest of rare’ case in imposition of capital punishment. Court contended that if the
crime is diabolic and inhumane then with the special reason bench can impose death
penalty. This case, escalate the debate on the question that whether it infringe article
21 of the Indian Constitution. The Hon’ble Supreme Court held the validity of capital
punishment and expressed his opinion that if the court has no alternative choice to
then court can impose death penalty.9
 However, the court disagree with the two concept aggravating and mitigating because
it hinder the discretion power of court to decide case freely but held that if murder
conceive cruelly executed it might attract the harsh penalty.
 Moreover, court is at the sea in deciding which case is rarest of rare, what appear
inhuman and cruel, for one judge it may appear not diabolic for other it could be
cruel. For example in one of the case of murder convicted killed his wife and two
children with the intent leading life with the lover could not persuade Krishnan Iyer
J. for death sentence, on the other hand Sen, j. ponder what else could be fit case for
capital punishment.10

 However in the case of Machchi Singh v. State of Punjab. Where session court and
high court awarded death sentence to four men for shooting 17 persons including
men, women and children within their home. Supreme Court laid down the guideline
for application of ‘rarest of rare’ case to particular case. The guidelines were related
to numerous issues including: "Manner of murder committed", "Motive for the
commission of murder", "Anti-social or socially abhorrent nature of the crime",
"Magnitude of crime" and "Personality of sufferer of homicide". It was observed by
the court that the whole community may suggest the capital punishment when the
conscious of society at large get shock that it will be expect from the judiciary to give
capital punishment irrespective of their personal opinion. In Maneka Gandhi v Union

9
Soma Sarkar, ‘Rarest of Rare Doctrine’ (2018) LTJ, http://lawtimesjournal.in/rarest-of-rare-doctrine/ accessed
01 May 2020.
10
Abhishek K. Singh, ‘The Meandering course of death penalty sentencing in India: A Critical Analysis’ Nirma
University Law Journal: (5) 2.

12
 of India], the Supreme Court has held that the death penalty can be awarded only in
special circumstance. It contended that an exceptional punishment which will be
imposed only with special reason and must be properly confirmed by the High Court.
The same was reiterated in Santosh Kumar Bariyar v. State of Maharashtra,11
Justice S.B. Sinha held in his judgment that court has duty to impose “reasonable
punishment is to be determined on a case-by-case basis. The death sentence is not to
be awarded save in the `rarest of rare’ case where reform is not possible.”

 A simple understanding of the above locating of the Court would be that "dowry
homicide" could now not fall in the "rarest of rare" class, due to its growing wide
variety and prevalence. The logic of such a finding is that ever on the grounds that
dowry murders have turned out to be common and ordinary they cease to be "rarest of
uncommon", which always pertains to infrequent or unusual occurrences. The reverse
of one of these logic could suggest that if for a few reason (better social education or
proper preventive action) the incidence of dowry homicide turns into infrequent or
uncommon in future, it can once more claim to fall inside the "rarest of rare"
category.

11
[2009] 6 SCC 498.

13
 INTERNATIONAL CONVENTION OF DEATH PENALTY

 India is signatory of the ICCPR (International convention on civil and political right).
Article 6 of the ICCPR states that no person will be arbitrarily deprive of his life.
Further, it states that the ones nations that have not abolished the capital punishment,
sentence of death may be imposed only for the most diabolic crimes in accordance
with the law in pressure on the time of the commission of the crime and now not
opposite to the provisions of the prevailing Covenant and to the Convention an the
Prevention and Punishment of the Crime of Genocide 12. The Convention at the Rights
of the Child explicitly prohibits capital punishment for juveniles. Article 3 of the
Universal Declaration of Human Rights, highlights that the States have to
progressively restriction “the number of offences for which capital punishment can be
imposed, so that it will the desirability of abolishing this punishment in all
international locations.”
 The UN Economic and Social Council reiterated that the capital punishment must be
imposed only for the most extreme crimes and said that the scope of these crimes
“have to not go past intentional crimes with deadly or different extraordinarily grave
effects.

12
Supra Note 9.

14
 INTERPRETATION OF ARTICLE 14, 19 AND 21

 Indian constitution guarantees fundamental right to all citizens, subject to its

restriction according to the procedure establish by law. Therefore, interpret the
dimension of the article 14, 19 and 21 and their inter relation.
 Article -14 deal with “Equality before law or Equal protection of law” which mean
equality for equal not for unequal. That is, no man or woman shall be discriminated
towards unless the discrimination is needed to obtain equality. The concept of
equality integrated in Art. 14 reveals echo in the preamble to the constitution. Capital
sentence, it appears, is therefore, an anti-thesis of one's right to existence.
 It is an undeniable fact that there may be nothing in the Constitution of India which
expressly holds capital punishment as unconstitutional, though there are provisions
that advise that the constitutional scheme accepts the opportunity of capital
punishment. However, there are several provisions inside the charter including the
preamble, the Fundamental Rights and Directive Principles which may be relied upon
for hard the constitutionality of capital punishment. It is clear that best a limited
category of serious offenders visited with capital punishment. That means someone's
existence is liable to be extinguished any time after he has extinguished the life of
some other or committed some other critical offence. The conclusion of the complete
issue is that all of us has an inherent right with reasonable restriction and no one has
right to spoil the life of other, and, if he does so, it needs to be on the price of his
personal life. In Furman’s case, capital sentence was challenged on the ground of its
violating in Eighth and Fourteenth Amendments. The Judges held invalidate the death
penalty of Georgia.
 ARTICLE 19 deals with right to freedom with reasonable restriction.
 19(1). All citizens shall have the right.
 Death sentence as an alternative penalty for murder have to be tested on the ground of
Article 19.
 The first rivalry of Shri Garg is that the provision death penalty in Section 302, Penal
Code offends Article 19 of the Constitution. It ii submitted that the proper to stay is
fundamental to the entertainment of all of the six freedoms guaranteed in Clauses (a)
to (e) and (g) of Article 19(1) of the Constitution and death penalty places an end to
these kinds of freedoms; that on the grounds that death penalty serves no social reason

15
 and its cost as a deterrent stays unproven and it defiles the consideration of the
individual so solemnly vouchsafed inside the Preamble of the Constitution, its
imposition have to be appeared as an 'unreasonable restrict' amounting to general
prohibition, on the six freedoms guaranteed in Article 19(1).
 Article19 ensured six fundamental freedoms aren't absolute rights. Firstly, they're
difficulty to inherent restraints stemming from the reciprocal duty of 1 member of a
civil society to so use his rights as not to infringe or injure the rights of some other.
This is on the principle “sic uteri tuoutalienum non laedas.” Secondly, under Clause
(2) to (6) those rights have been expressly made concern to the strength of the State to
impose reasonable regulations, which may additionally even enlarge to prohibition, at
the exercising of those rights. The conferment of this right is founded on the
fundamental reality mat uncontrolled liberty totally freed from restraint, degenerates
right into a license, main to anarchy and chaos; that libertine pursuit of liberty,
definitely unfastened, and unfastened for all, may also imply liberticidal for all.
"Liberty has, consequently," as Justice Patanjali Sastri placed it, "to be restrained on
the way to be effectively possessed.
 In case of State of Bombay v. R.M.D. Chamarbaugwala,13 the constitutional
validity of certain provisions of the Bombay Lotteries and Prim Competition Control
Act, 1952, as amended by means of Bombay Act No. XXX of 1952, changed into
challenged at the floor, inter alia, that it infringes the fundamental rights of the
promoters of such competitions below Article 19(1)(g), to carry on their alternate of
commercial enterprise and that the regulations imposed via the said Act can't in all
likelihood be supported at affordable restrictions inside the interest of most people
permissible under Article 19(b).
 Article 21-No person shall be deprived of his life or personal liberty except
according to a procedure established by law.”
 In Attorney general of India v. Lachmi Devi court held that that the execution of death
sentence through public putting is barbaric and violative of Art. 21 of the charter. It is
proper that the crime of which the accused have been determined to be guilty is
barbaric, however a barbaric crime does not should be visited with a barbaric penalty
consisting of public striking.

13
[1957] SCR 874.

16
  In Triveniben v. State of Gujarat,14 it has been held that a person sentenced to dying
is also entitled to procedural fairness until his remaining breath of life. Art 21 needs
that any process which takes away the lifestyles and liberty of such person need to be
reasonable manner.

14
[1989] SCR (1) 509.

17
 CONCLUSION

 Indian Judiciary in this case has made it clear that death penalty shall be “impose in
rarest of rare case”.
 On an evaluation of decisions given over a period of years, we discover that in fact
there may be no uniform pattern of judicial behaviour within the imposition of the
death penalty and the judicial exercise does now not disclose any coherent guidelines
for ' the award of capital punishment. The Judges have been awarding capital
punishment or refusing to award it in keeping with their very own scale of values and
social philosophy and it is not viable to parent any regular approach to the problem
inside the judicial choices. It is obvious from fact that judicial choices that a few
Judges are comfortably and often inclined to preserve death sentences, the first
function of capital punishment is to offer emphatic expression to society's strange
abhorrence of homicide. It too important that murder need to be seemed with
extraordinary horror. I believe that capital punishment does, within the gift country of
society, both explicit d maintain the sense of ethical revulsion for homicide.15

15
Adv. Lakshmi, ‘Bachan Singh v. The State of Punjab’ (Path Legal, 29 June 2019),
https://www.pathlegal.in/Read-Judgment-on-Bachan-Singh-v-the-State-of-Punjab-blog-2381579 accessed 1
May 2020

18
 REFERENCES

 Rahul Agarwal, Amity University Lucknow, (August 20, 2019),

http://www.educentric.in/blogdetails.html?id=314&blog=case%20summary
%20bachan%20singh%20vs%20state%20of%20punjab
 Anjali and Kannappan, A Critical Study on Punishment with Reference to Section
302 of IPC, International Journal of Pure and Applied Mathematics Volume 119 No.
17 2018, 1101-1116.
 Soma Sarkar, Rarest of Rare Doctrine, Law Times Journal, (November 22, 2018),
http://lawtimesjournal.in/rarest-of-rare-doctrine/
 Abhishek K. Singh, The Meandering course of death penalty sentencing in India: A
Critical Analysis, Nirma University Law Journal: Volume-5 Issue-2, (January, 2016).

ABOUT THE AUTHOR

Pulkit Arora is pursuing BA. LLB.(HONS) from Institute of Law, Nirma University.
Currently, he is doing internship at Probono India. He is runner up of PIl drafting competition
of first ILNU league and he is active member of NSS unit of ILNU.

19