LAW OF CRIMES

MODULE 1
1.1) HISTORY OF CRIMINAL LAW
DIFFERENCE BETWEEN CIVIL AND CRIMINAL LAW
1.2) CONCEPT OF CRIME, COMPONENTS OF CRIME AND CRIMINAL LIABILITY
1.3) THEORIES AND KINDS OF PUNISHMENT
(INCLUDES IPC CHAPTER III: SECTIONS 53 TO 75)
1.4) CAPITAL PUNISHMENT
1.5) STAGES OF CRIME
1.6) THEORIES OF NEGLIGENCE
1.1) HISTORY OF CRIMINAL LAW
Historical background of Indian Penal Code 1860
The Indian Penal Code is one of the most unique and spectacular Penal Law Code
entailing a number of crimes, their scope, nature and punishments thereof.
The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive
code intended to cover all substantive aspects of criminal law.
There was no criminal law in uncivilised society. Every man was liable to be attacked
in his person or property at any time by anyone. "A tooth for a tooth, an eye for an eye,
a life for a life" was the forerunner of criminal justice. As time advanced, the injured
person agreed to accept compensation, instead of killing his adversary. Subsequently,
a sliding scale came into existence for satisfying ordinary offences, which gave birth to
archaic criminal law.
An All India Legislature was created by the Charter Act of 1833. The office of Law
member in the Council of Governor General was created, Provision was also made for
the appointment of a Law Commission.
The first law commission was appointed in 1834 with Lord Macauley, the then Law
Minister as its chairman, Sarvshri Macleod, Anderson and Millet were the other
members of the Commission.
It prepared a draft Penal Code for India which was given for consideration to the
Governor General of India in Council on 14th October 1837.
But the draft was again revised. In 1845 another Commission was set up for reviewing
the draft; they submitted two reports of the draft.
The drafting was completed in 1850 and the code was presented to the legislative
council in 1856, but it did not take effect.
After the revolt of 1857, the draft then underwent a very careful revision at the hands
of Sir Barnes Peacock, who later became the first Chief Justice of the Calcutta High
Court.
In 1860 it was passed in the Legislative Assembly, after that it got the assent from the
Governor General of India (Lord Canning first Viceroy.)
Enactment date of IPC: 6th October, 1860.
Enforcement date of IPC: 1st January, 1862.
Official Citation: Act No. 45 of 1860.
Territorial extent: India
However, it did not apply automatically in the Princely states, which had their own
courts and legal systems until the 1940s. The Indian Penal Code did not apply to the
State of Jammu and Kashmir before 31st October, 2019. But now the situation has
changed.
The code came into force in the Union Territories of Jammu and Kashmir and Union
Territory of Ladakh on 31st October, 2019, by virtue of the Jammu and Kashmir
Reorganisation Act, 2019, and replaced the state's Ranbir Penal Code.
Structure: The Indian Penal Code of 1860, sub-divided into 23 chapters, comprises
511 sections.
Last Amendment in IPC: The Jammu & Kashmir Reorganisation Act, 2019.
Trial of offences under IPC, 1860.- All offences under IPC, 1860 shall be investigated,
inquired into, tried and otherwise dealt with according to the provisions of the Code of
Criminal Procedure, 1973 (CrPC, 1973). [Section 4(1) Code of Criminal Procedure,
1973]
DIFFERENCE BETWEEN CIVIL AND CRIMINAL LAW
Introduction:-
The law of India has a wide variety of segregations under it because of our widespread
population which causes infringement of people’s rights. Due to the increase in such
acts, a variety of legislations were needed to be presented in India which provided us
with many types and branches under the law. The law of India is divided into following
heads:
● Public and Private Law
● Civil and Criminal Law
● Substantive and Procedural Law
● Municipal and International Law

Now we will be discussing in detail Civil and Criminal Law and the key differences
amongst them.
Civil Law
Civil laws in a generic sense mean an injury or harm caused to an individual or any
other private property (corporation) by the act or the behaviour of any other person.
The acts committed by the party are non-criminal in nature under Civil laws. It
commonly deals with solving disputes between parties. Civil laws usually deal with
relief by providing compensation or fine to the aggrieved party or to the Court.
Damages caused by Civil wrongs are to be managed by compensation. Civil law does
not deal with offences against society at large, unlike Criminal Law.
Features of Civil Law
Civil law being so dynamic is stuck with many varied features and distinguishing
essentials which are as follows –
1. Civil law is a branch of law in which cases are tried under Civil Courts and
Tribunals relating to that.
2. The damages caused to either of the parties are resolved by paying them an amount
of money and not through imprisonment.
3. They are a set of codified laws and decisions which are binding on the parties
involved.
4. Civil law is greatly inclined towards contractual obligations as contract law is the
major branch of the same.
Code of Civil Procedure, 1908 and Civil Law
Code of Civil Procedure, 1908 is the law that is behind the procedure of civil
proceedings. The institution of a case is explained in the Code of Civil procedure (CPC)
and other procedures related to Civil Law. The code is divided into two parts - the first
part containing 158 Sections and the second part containing the 1st Schedule which
has 51 Orders and Rules. All the proceedings under Civil law must be in accordance
with CPC for taking action in the Court. CPC is an important tool for Civil litigation.
Budding lawyers to specialise in Civil law must be thoroughly well versed with it.
Branches under Civil Law
Following are branches available under the civil law
● Contract Law
● Tort Law
● Family Law
● Administrative Law
● Business/ Corporate/ Commercial Laws

Criminal Law
Criminal law is the law that relates to crime and its related punishments. Criminal law
deals with offences that are against conventional society. It is a crime against the state
because of the evil nature of the crime and every member of society must know the
heinous crime committed and the equivalent punishment given to the accused. There
must be adequate awareness in the case of Criminal law rather than Civil law.
Criminal law consists of acts that are harmful or otherwise endangering the health or
property of a person. Criminal law focuses on punishment and retribution more than
dispute resolving as seen in Civil law. The acts constituting under Criminal Law are
graver than Civil law as the damage and injury are caused to a person in a way that
can be very terrifying for society to imagine and to live.
Features of Criminal Law
1. Cases under Criminal law are tried under Criminal Courts or Sessions Court.
2. The harm done to a person is justified by providing equivalent punishments to the
perpetrator.
3. It creates a public offence against the public interest and not a private liability.
4. It is an infringement of public rights.
ACTS UNDER CRIMINAL LAW
Union Laws and SLL (Special or Local Laws) under Criminal Law
• The Indian Penal Code, 1860 (Union Law)
• The Code of Criminal Procedure, 1973 (Union Law)
• The Indian Evidence Act, 1872 (Union Law)
• The Protection of Children From Sexual Offences Act, 2012 (Special Law)
• The Juvenile Justice Act, 2015 (Special Law)
• The Narcotic Drugs And Psychotropic Substances, Act, 1985 (Special Law)
• The Immoral Traffic Prevention Act, 1956 (Special Law)

KEY DIFFERENCES BETWEEN CIVIL AND CRIMINAL LAW

Civil Law
Sr.No. Parameters Criminal Law
Civil Law deals with acts related
1. Meaning to individuals to which harm Criminal Law deals
caused can be rapid by with a crime that
compensation or monetary relief. causes injury to a
person which is an
offence against society
as well. The relief of
crime committed is to
charge the person with
punishment such as
imprisonment, fine,
death.
It creates a private liability against
2. Liability an individual or an organisation. It creates a liability for
the perpetrator against
society and the victim.
Justice is given by providing
3. Remedy monetary relief/damages or Justice is given by
injunction or specific performance providing the convict a
of contract against the damage in punishment which is
most cases. either of the following,
death, imprisonment,
 fine, or forfeiture of
property for a term or
fine or both.
Cases under civil law are triable
4. Triable under civil courts or equivalent Cases under criminal
tribunals. law are tried under
criminal courts such
as Magistrate Court,
Metropolitan
Magistrate's Court or
Sessions court etc

5. Objective Objective of Civil law is dispute Objective of Criminal

resolution between individuals. law is providing justice
to the victim by
punishing the convict.

6. Procedural Code of Civil Procedure,1908 Code of Criminal

Law Procedure, 1973
Gravity of
7. Offences Less grave than criminal More grave than civil

8. Filing of the In Civil suits the Aggrieved Party On an FIR (First

case also knownFiles the case Information Report)
being filed in Police
Station, the process of
criminal case begins

9. Infringement Infringement Of Private Rights Infringement Of Public

rights
Corporate Law, Family law,
10. Branches Property law, Media, law, Sports No diversion as such.
Law Etc.
 11. Examples of Negligence, invasion of privacy,
Wrongful Trespass, Breach of Contract etc. Murder, Grievous Hurt
Acts Rape, Kidnapping,
Theft, Extortion, House
Breaking etc.

CONCLUSION
There is an indeterminate difference between Civil and Criminal law. Both being the
most important branches of law have their own unique sets of regulations and rules.
Civil and Criminal laws are regulated by strong legislation and procedural laws. Civil
law has dispute resolution machinery whereas Criminal law has retribution
machinery. These two branches of law cover most parts of the law. People willing to
choose between them can choose any as they are very important for the effective
working for our country. Branches of Civil law are more varied than Criminal law. Civil
law has many diversions as we observed, it contains Property law, Corporate law,
Business Law and many more. Some branches of Civil law are uncodified such as torts
but under Criminal law almost all the laws and regulations are codified, so each and
every point which distinguishes both the law stands out and creates full-fledged
machinery for our country to work and eliminate crime efficiently, whether it's in the
offices or roads.
1.2) CONCEPT OF CRIME, COMPONENTS OF CRIME AND CRIMINAL LIABILITY
Crime can be defined as any act, error or omission made punishable by the Criminal
Law of the land such as Indian Penal Code is an offence.
As per section 40 of Indian Penal Code, 1860 any act or omission made punishable by
IPC is an offence.
Similarly, Section 2n of Code of Criminal Procedure, 1973 says that an act or omission
made punishable by IPC or any other law for the time being enforced is an offence.
Important definitions of Crime by renowned jurists:-
According to Bentham:-
“Offences are whatever the legislature has prohibited for good or bad reasons”.
According to Austin:-
“a wrong which is pursued at the discretion of the injured party and his
representatives is a civil injury; a wrong which is pursued by the sovereign or his
subordinates is a crime.
According to Blackstone:-
“an act committed or omitted in violation of public law either forbidding or
commanding it.” He also defined crime as “violation of the public rights and duties due
to the whole community, considered as community, in its social aggregate capacity.”
According to Stephen:-
“Crime is an act forbidden by law and which is at the same time revolting to the moral
sentiments of the society.”
According to Keny:-
“Crime is wrongs whose sanction is punitive and is in no way remissible by any private
person; but is remissible by any private person, but is remissible by crown alone, if
remissible at law”.
Fundamental principles of crime:-
i) Any act is not a crime unless it is punishable as a crime by particular law.
ii) No person can be punished without the authority of law.
iii) Act done before the enactment of law cannot be punished after the enactment of
law.

COMPONENTS OF CRIME:-
There are four essential components of crime as led down by Wolfender Committee
they are
1) Human Being
2) Mens rea
3) Actus rea (Act or Omission)
4) Harm of Injury
1) HUMAN BEING:-
Human beings are not defined in IPC but words men and women have been defined
under Section 10 of IPC and word person has been defined under Section 11 of IPC.
Human being must commit wrongful Act to fulfill first element of a crime that means
any non-living thing or animals are not considered in the category of a person or a
human being whereas in ancient times when criminal law was closely dominated by
the idea of retributive theory, punishment was also inflicted on animals for the injury
caused by them.
For Example, if a dog bites anyone he is punished, a horse was killed for kicking a
man but in Indian Penal Code if animal cause injury we do not make animal liable but
the owner is held liable for such injury so the first element of crime is human being
who must be given appropriate punishment and should be under legal obligation to
held criminally liable.
'Person' is defined in Section 11 of Indian Penal Code which includes company,
association or body of persons whether incorporated or not. The word person includes
artificial or juridical persons. He is a legal entity created by law which is not a natural
person such as a corporation created under state statute. It is a legal entity having a
distinguished identity and legal rights and obligation under the law.
In Messer Syndicate Transport Pvt. Ltd., 1965, The Bombay High Court clarified
that company cannot be held guilty of those crimes which can be committed only by
human being such as rape, bigamy, Murder etc. Similarly a Company cannot be held
guilty for those crimes which are punished by death or imprisonment but a company
can be held guilty of those crimes which are punished exclusively or alternatively with
fine.
2) MENS REA OR GUILTY INTENTION
The second element is derived from the famous maxim Actus Non-Facit Reum Nisi
Mens Sit Rea.
This maxim is divided into two parts. The first part-
1. a) Actus reus (guilty/wrongful act).;
2. b) Mens rea (guilty mind)
It means the guilty intention and guilty/wrongful Act together constitute a crime. It
comes from a maxim that no person can be punished in a proceeding of criminal
nature unless it can be shown he has a guilty mind. The second element is Mens rea
which can be explained in various forms a guilty mind; a guilty or wrongful purpose; a
criminal intent, guilty knowledge and willfulness all constitute the same thing that
mens rea. Motive and Intention are both aspects in the field of law and justice both are
very important. They are also associated with the purpose of proving or disproving a
particular case or crime, Wrong motive with guilty intention is necessary to prove
criminal liability.
Some exceptions to Mens rea:-
i) Strict Liability :-
Where a statute imposes strict liability, the presence or absence of a guilty mind is
irrelevant. Several modern statutes passed in the interests of public safety and social
welfare imposes such strict liability. In matters concerning public health, food, drugs,
etc. Such strict liability is imposed, e.g under The Motor Vehicle Act, The Arms Act,
licensing of shops, hotels restaurants and chemists' establishments.
ii) Petty Offences :-
It is difficult to prove mens rea, where the penalties are petty fines, and where a
statute has done away with the necessity of mens rea on the basis of expediency, strict
liability in criminal law may be imposed.
For eg :- parking offences – speedy disposal is necessary and where proving of mens
rea is not easy, the accused may be fined, even without any proof of mens rea.
iii) Public Nuisance :-
The justification for this exception is the same as the first exception. In the interest of
public safety, strict liability must be imposed and if one causes public nuisance with
or without a guilty mind, he becomes punishable.
iv) Ignorance of law is no excuse:-
Ignorance of law is not an excuse i.e if a person violates a law without having
knowledge of the law, it cannot be said that he has intentionally committed an act
which is prohibited by law. In such cases the fact that he was not aware of the rule of
law and that he did not intend to violate it is no defence and he would be liable as if he
was aware of the law.
v) Vicarious Liability in Criminal law :-
The doctrine of vicarious liability- accepted in civil law is not mostly applicable in
criminal law.
In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person
for wrongful acts committed by someone else. IPC makes a departure from the general
rule in a few cases, on the principle of respondeat superior. In such a case a master is
held liable under various sections of the IPC for acts committed by his agents or
servants. Section 149 provides for vicarious liability, it states that if an offence is
committed by any member of an unlawful assembly in prosecution of a common object
thereof or such as the members of that assembly knew that the offence to be likely to
be committed in prosecution of that object, every person who at the time of committing
that offence was member would be guilty of the offence committed.
Similarly as per Sections 154 & 155 of IPC impose a penalty upon the owner of the
land in certain cases, where a breach of duty is committed by his agent or manager.
The doctrine of vicarious liability is more frequently invoked under special enactments,
such as Defence of India Rules 1962, The India Army Act 1911, The Prevention of
Food Adulteration Act 1954, The Drugs Act 1940, etc. A master is held criminally
liable for the violation of rules contained under the aforesaid statutes, provided that
his agent or servant, during the course of employment, committed such act.

Sarjoo Prasad
v.
State of Uttar Pradesh
In the above case, the appellant, who was an employee, was convicted under the
Prevention of Food Adulteration Act, 1954 for the act of the master in selling
adulterated oil.
3) ACTUS REUS OR ILLEGAL ACT OR OMISSION
It is the Latin term used to describe a criminal activity. It is commonly defined as a
criminal activity that was the result of voluntarily bodily movement. This describes a
physical activity that causes injury or harms another person or damages property. In
other words, due to guilty or wrongful intention, some illegal act or illegal omission
must take place. There are two types of Actus reus: the first is commission and the
second one is an omission. The commission is a criminal activity that was the result of
voluntarily body movement. This describes a physical act that harms a person or
property. Against human body includes physical assault, murder, hurt, grievance,
hurt etc & property includes theft, dacoity, extortion etc.
The omission is another form of Actus reus as an Act of criminal negligence. An
omission could be falling to warn others that you have created a dangerous situation,
for eg. Not feeling an infant who has been left in your care or not completing a
work-related task which resulted in an accident.
4) INJURY UNDER SECTION 44
The fourth requirement of a crime is injury should be caused to another person or to
society at large. According to Section 44 of Indian Penal Code, 1860 the injury is
defined as any harm illegally caused to any person in body, mind, reputation or
property by another person. Elements of crime are a set of facts that must be proven
to convict a defendant of a crime. Criminal elements are sets forth in criminal statutes
or cases in jurisdictions that allow for common law crimes.
1.5) STAGES OF CRIME
The stages of crime or elements of a crime include intention, preparation, attempt and
accomplishment. The constitution of a crime includes all the elements. Some of these
Stages are even punishable even if the last stage: accomplishment is not fulfilled All
the stages can be explained further as follows:
1) INTENTION
The fundamental elements of a crime are ‘mens rea’ and ‘actus reus’, the former being
the intention to commit a crime and the latter being the act done in furtherance of the
intention. The criminal liability of a person shall be decided only when he or she has a
mala fide intention. It is the direction of conduct towards the objects chosen upon
considering the motive which suggests the choice. Mere intention shall not constitute
a crime, as it is almost impossible to know the intentions of a person. As the famous
saying goes “the devil himself knoweth not the intention of a man”. Since it is hard to
know the intentions of a man, a criminal liability at this stage cannot be drawn.
Mens rea
Mens rea literally means guilty mind. This basically implies that a person committing
the crime is mindful of his/her actions and knows that accomplishment of that act
would result in a crime. To simplify, the intention of the person committing a crime
should be mala fide. Further, mens rea can be further divided into four levels
depending upon the degree of intent of committing the crime.
These four levels are:
1. Negligence: This is the least and in fact the mildest form of mens rea where the
person is negligent of his/her actions and does not ensure reasonable care in his/her
act/omission.
2. Recklessness: This is of a slightly higher amplitude than negligence where the
person can anticipate the crime which may arise out of the act/omission but did not
expect or intended the same and acts negligently.
3. Knowledge: The third level is knowledge where the person is associated with the
risks that may occur on his act/omission and still continues with such act/omission.
Here, he/she is not negligent.
4. Intent: This is of the highest amplitude where the person intentionally carries out
an act or omits something in order to commit the crime.
Actus reus
Actus reus is the act or omission on part of the person which causes a crime and
involves some physical activity. It is imperative to note that not just an act but an
omission can also be a crime.
For example, non-payment of taxes or maintenance is a crime.
2) PREPARATION
The next stage of a crime is preparation. It can be understood as an act in furtherance
of the mala fide intention of a person. It is an act that shall be a means to the attempt
and accomplishment of the crime. In the previous illustration, if A purchases a
weapon legally and carries it with himself, it shall amount to the preparation of the
crime.
Reasons why preparation is not punishable
The general rule under the law is that the preparation of a crime shall not be
punishable. The reason behind the general rule is that it is nearly impossible to prove
that the accused made the preparation to execute the crime. Apart from this, the test
of locus poenitentiae is applied in cases where the culpability of preparation is in
question. The test provides that a person has an opportunity to withdraw from his act
before he actually commits the intended crime. The test has been further explained in
the subsequent sections.
Exceptions in which criminal liability may be imposed
Exceptions to the general rule that a person cannot be held criminally liable for the
preparation of an act have been provided under the Code. These exceptions include:
i) Preparation to wage a war against the Government of India – Section 122 of the
Code provides that collection of arms, ammunition, or associating with people with an
intention to wage a war against the State shall be a punishable offence with
imprisonment for a term that may not exceed ten years, and such the offender shall
also be liable for fine.
ii) Counterfeiting coins – Section 233, Section 234, and Section 235 of the Code
provide the punishment for counterfeiting any coin, including an Indian coin and the
possession of any counterfeit coin. These provisions also provide punishment for the
preparation of producing or using a counterfeit coin.
iii) Manipulation of the weight of the coins – Section 244, Section 246 and Section
247 of the Code provide the punishment for altering or diminishing the weight of any
coin. In these circumstances, even the preparation to commit such crimes is
punishable.
iv) Counterfeiting Government stamps – Section 255 of the Code provides that
“Whoever counterfeits, or knowingly performs any part of the process of
counterfeiting, any stamp issued by Government for the purpose of revenue shall be
punished with imprisonment for life or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.” In addition to
this, the provision also criminalises the possession (Section 256) and selling (Section
257) of counterfeiting Government stamps.
v) Preparation to commit a dacoity – Section 399 of the Code provides that
“Whoever makes any preparation for committing dacoity, shall be punished with
rigorous imprisonment for a term which may extend to ten years, and shall also be
liable to fine.”
vi) Possession of forged documents – Section 474 of the Code provides the
punishment for the possession of forged documents. The intention behind the
provision is to prevent any type of fraud that may occur by using such forged
documents.
These offences are punishable at the stage of preparation due to the gravity of the
outcome of the crime, if committed.
3) ATTEMPT
There exists a very thin line of distinction between the preparation of a crime and an
attempt to commit the same. It may be defined as an action in furtherance of the
intention and preparation of a person to commit a crime. Thus, an attempt to commit
a crime is often termed “preliminary crime”. An attempt to commit a crime is
punishable under the Code. It has been provided under various provisions for specific
crimes. However, in case of the absence of punishment for an attempt to commit a
particular crime, Section 511 of the Code comes into the picture. Some of the specific
provisions of the Code under which an attempt to commit a crime have been
enumerated hereunder:
• Section 121 – Attempt to wage a war;
• Section 131 – Attempt to seduce a soldier, sailor or airman from his duty;
• Section 307 – Attempt to murder;
• Section 308 – Attempt to culpable homicide;
• Section 309 – Attempt to suicide;
• Section 326B – Attempt to throw suicide;
• Section 356 – Attempt to commit theft;
• Section 357 – Attempt to wrongfully confine a person;
• Section 393 – Attempt to commit robbery;
• Section 397 – Robbery or dacoity with an attempt to cause death or grievous hurt;
Circumstances under which attempt becomes impossible
In the 19th century, English law established that an attempt to commit an impossible
act shall not be punishable. Cases of the early 19th century were decided on the
notion that an attempt cannot be made on a crime that cannot be committed. Thus,
where a pickpocket thrusts his hand in an empty pocket of a person, he shall still not
be held liable.
However, the courts found the notion to be illogical and unreasonable in the later part
of the 19th century, and hence, overruled the judgements. This was the first time an
attempt to commit an impossible act was made punishable.
Section 511 of the Code particularly provides that any attempt to commit an
impossible act is punishable. The illustrations provided under the provision are
indicative of the same. Thus, under the Indian Penal Code, an attempt to commit an
impossible act is punishable.
Difference Between Preparation And Attempt
The difference between the preparation and attempt to commit a crime is a crucial
one. It can determine the criminal liability of a person. The prime difference between
the two is the fact that whether the act that has already been finished during the
stages of crime, has an impact on the victim. If it has an impact, it is considered to be
an attempt, otherwise, it is considered to be mere preparation. The Courts in various
cases have attempted to differentiate between the two through various tests, which
shall be discussed hereunder.
Tests for determining an attempt to commit a crime
• Proximity rule – The proximity rule provides that in cases where the accused
accomplishes a series of acts in furtherance of his intention to commit a crime, the
liability shall be decided upon the proximity with the completion of the Act.
• Locus Poenitentiae – The doctrine of locus poenitentiae provides that where a
person
withholds himself from the actual commission of the crime, it would amount to mere
preparation. The doctrine was propounded after analysing that a person has a
reasonable
opportunity to withdraw himself from committing the crime.
• Equivocality Test – The equivocality test states that when an act of a person can
prove beyond reasonable doubt the likeliness of committing the crime, it shall
constitute as an attempt to commit the crime rather than mere preparation.
4) ACCOMPLISHMENT
The accomplishment of a crime is when an attempt to commit a crime is successfully
executed. Every person shall be liable for the act, offence or crime that he commits or
accomplishes. The provisions of the Code provide for specific punishments for various
crimes in the country.
Stage at which liability commences
The above discussion reveals how these four stages of crime decide the criminal
liability of an accused. Undisputedly, at the level of accomplishment, the criminal
liability of a person shall arise.
Nevertheless, the above discussion reveals how the liability can commence even at the
stage of the attempt and in some cases, even at the stage of preparation. Usually, in
such instances, the crime committed is very serious and poses a threat to society.
Hence, the main object of ascertaining liability at such stages is to create a deterrent
effect in the minds of people and prevent them from committing such heinous crimes.
Judicial Pronouncements:-
 (1933)
Asgarali Pradhania
v.
Emperor

In this case, the Calcutta High Court, while distinguishing between an attempt to
commit an offence and its preparation, was of the opinion that not every act done by
the accused can constitute an attempt to commit the said offence. The facts of the
case included the accusation of an attempt to cause a miscarriage of his ex-wife. The
Court held that if the accused, with an intention to administer a drug which shall
cause a miscarriage, administers any harmless substance instead, he shall not be
liable for the attempt to cause miscarriage. However, if the failure of the accused is
caused by someone else, it shall result in the contrary.

(1986)
Madan Lal
v.
State of Rajasthan

In this case, the convict was sentenced to rigorous imprisonment for two years when
found guilty of attempting to commit rape of the victim under Section 376 read with
Section 511 of the Code.
The facts of the case included three prime witnesses, who found the convict laid down
naked on the victim, who was also found naked, and the mouth of the victim was
covered by the convict’s hand. It was established the convict himself removed his
clothes and that of the victim and had an intention to rape the victim.
The Court, while analysing the stage of attempt, held that “It is the stage beyond
preparation and it precedes the actual commission of the offence. An attempt to
commit an offence is not meant to cover only the penultimate act towards the
completion of an offence but it also covers all those acts or series of acts which travel
beyond the scope of preparation and exhibit a definite intention and determination to
commit a particular offence. It need not be an act which just precedes the last act on
the happening of which the offence itself is committed but it covers all those acts or
series of acts which may precede the penultimate act towards the commission of that
offence.”
 (2021)
Mathivanan
v.
The State of Tamil Nadu

In this case, the Madras High Court reiterated that the first and the second stage
(intention and preparation) are generally not culpable, whereas the third and the
fourth stage (attempt and accomplishment) are culpable. However, exceptions to this
general notion are the offences under Section 122 and Section 399 of the Code.
Commenting on Section 122 of the Code, the Court opined that “To wage war would
require several steps and crossing of stages. There has to be mobilisation of men as
well as accumulation of arms and ammunition. That would require a concerted effort.
Each individual who is a party to the conspiracy to wage war may be allotted a
particular task. One may be tasked with collecting men, another with arms and the
third with ammunition. The expression “otherwise prepares” in this context should not
be construed on the application of the principle of ‘ejusdem generis’. A person may be
engaged in fund-raising. Another may be responsible for providing reinforcements.
Some may be engaged in making logistical arrangements. Some may be engaged in the
intellectual front. There could be several dimensions. All of them would fall within the
scope of “otherwise prepares”. But as already held, when it comes to application of the
provision to concrete facts, courts will apply a higher threshold.”
Conclusion
The four stages of a crime have been defined and adopted by the judiciary for a long
time now. The classification of these stages is necessary in order to decide the
culpability of a crime at each stage. Generally, the liability arises during an attempt
and the actual commission of the crime, as the courts cannot overlook the legal
maxim of locus poenitentiae. The problem before the courts that arises more than
often is the differentiation between the preparation and the attempt to commit a crime.
Various cases have been adjudicated by the courts wherein an attempt has been made
to distinguish the thin line between an attempt and preparation of a crime. The courts
have been of the view that an attempt shall not be considered only as the penultimate
act of the crime. Rather, a series of acts shall constitute an attempt to commit the
crime and the differentiation between preparation and attempt shall depend on the
facts and circumstances of each case.
1.6) THEORIES OF NEGLIGENCE
What is negligence?
Negligence is the breach of duty that is caused by the omission to do something, which
a reasonable man would do under those circumstances. Actionable negligence
includes neglect of the use of ordinary care or skill towards a person to whom the
defendant owes the duty of observing ordinary care or skill, the neglect of fridge
causes injury to the plaintiff’s person or property.
According to Winfield, negligence as a tort is the breach of the legal duty to take care
resulting in damage to the plaintiff, undesired by the defendant. Negligence is conduct
that falls below the standard established by law to protect people against risk and
unreasonable harm.
Negligence is based on conduct, not state of mind. It is not measured by the
defendant’s mental carelessness but by whether the conduct objectively falls below the
requisite standard of care.
Two theories of negligence.
1. Subjective theory– According to Austin negligence is a faulty mental condition that
is penalised by the award of damages. Although negligence is not synonymous with
thoughtlessness or inadvertence, it is, nevertheless, in his view essentially an attitude
of indifference. Negligence according to Salmond essentially consists of the attitude of
undue indifference concerning one’s conduct and its consequences. Winfield also
supports this theory and says that as a mental element in tortious liability negligence
usually signifies a total or partial inadvertence of the defendant to his conduct and for
its consequences. In exceptional cases, there may be full adherence to both the
conduct and consequences but in any event, there is no desire for the consequences
and this is the touchstone for distinguishing it from intention.
2. Objective theory- According to this theory negligence is not a particular state of
mind or form of men’s rea at all, but a particular kind of conduct all ok is a supporter
of this theory and writes that negligence is the contrary of diligence and no one
describes the legends as a state of mind divisions today means activity which is not a
state of mind negligence is the branch of duty to take care and take care needs to take
precautions against the harmful result of one’s actions and to refrain from
unreasonable conducts to drive at night without light is negligence because to carry
lights is a precaution taken by reasonable and prudent man for the avoidance of
accidents and amount of care which is reasonable in the circumstances of the
particular case this obligation to use reasonable care is commonly expressed by
reference to the conduct of a reasonable man or an of an ordinarily prudent man
meaning thereby reasonably prudent man.
Conditions of liability for negligence
Actionable negligence emphasises in the negligence of the use of care towards a person
to whom the defendant owes the duty of observing the ordinary skill or care, by which
neglect, the plaintiff has suffered injuries of his person or property.
The essential conditions for liability of negligence therefore are-
▪ That the defendant was under a legal duty to exercise due care and skill is there
cannot be any liability for negligence unless there is a breach of some legal duty.
▪ That the duty was towards the plaintiff.
▪ That there was a breach of the duty on that part of the defendant that is the
defendant failed to perform the duty to exercise his due care and skill.
▪ That there was injury or damage as a natural and probable consequence and the
direct cause of the breach of the duty. In other words, the breach of such duty should
be the causa causans i.e. the proximate cause of the damage complained of.
If the causal connection between the negligent act, and the damage is not direct, the
damage is too remote for which there is no remedy at law.
1.3) THEORIES AND KINDS OF PUNISHMENT
(INCLUDES IPC CHAPTER III: SECTIONS 53 TO 75)
1.4) CAPITAL PUNISHMENT
PUNISHMENT:-
● Punishment is any damage or pain inflicted on the offender through judicial
procedure.
● Punishment is the suffering in person or property inflicted on the offender under the
sanction of
law.
● It is the process by which the State inflicts some pain to the person or property of a
person, who
is found guilty of a crime.
● Punishments are imposed on the wrong doers with the object to deter them from
repeating the
same wrongdoing and reform them into law- abiding citizens. A Punishment is a
consequence of
an offence. Punishment generally is provided in Criminal Law to create social control.
● Many authors have defined punishment.
● According to Salmond: “Crime is an act deemed by law to be harmful for the society
as a whole though its immediate victim may be an individual.”
● Sutherland and Cressey have mentioned two essential ideas while defining the
concept of punishment:
a) It is inflicted by the group in its corporate capacity upon one who is regarded as a
member of the same group. War is not punishment, for in war the action is directed
against foreigners.
b) It involves pain or suffering produced by design and justified by some value that the
suffering is assumed to have.
● Punishment would either be Corporal or Non-corporal.
● The punishments which are Corporal includes:
1. Death, which is usually denominated capital punishment;
2. Imprisonment, which is either with or without hard labour, vide Penitentiary;
3. Whipping, in some states;
4. Banishment
●The punishments which are Non-corporal includes:
1. Fines;
2. Forfeiture;
3. Suspension or deprivation of some political or civil right, deprivation of office, and
being rendered incapable to hold office;
4. Compulsion to remove nuisances.
Theories of Punishment
1) Retributive Theory
2) Deterrent Theory
3) Preventive Theory
4) Reformative Theory
5) Expiatory Theory
6) Theory of Compensation /Compensatory Theory
THEORIES OF PUNISHMENT:-
1) RETRIBUTIVE THEORY OF PUNISHMENT
The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in
the society would perceive it as, is the most basic, yet inconsiderate theory of inflicting
a penal sentence over a perpetrator. It is based on a very small doctrine, namely the
doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. Now, if looked at
from the perspective of very serious and heinous offences, like the Delhi gang rape
case, people may feel that it is better to inflict such retributive punishments, so as to
ensure that a deterrent is set across the society, in order to prevent such crimes in the
near future.
However, we forget to understand sometimes that always having a retributive
approach will render the society one with a primitive system of justice, where the
Kings or the Judges were considered to be the supreme beings and were provided with
the stature of God Himself (hence the address My Lord) and thus, collapse the very
concepts of the representatives being ‘servants’. Two very
important doctrines of retributive theory as follows:-
Doctrine of Societal Personification and the Doctrine of Correctional Vengeance:
a) Doctrine of Societal Personification:- It can be stated as-
‘When a member of the society is subjected to a very heinous crime, as a result of
which, the whole society, as if it were a natural person, considers the offence to be
inflicted upon itself, comes to the defence of that person either by way of demanding
justice or by conducting the same on its own, the society is said to be personified.’
A very self-explanatory doctrine. To be put simply, it means that the society, whenever
a heinous crime of an extreme form is committed, assumes the form of a natural
person and behaves in a collective manner so as to get justice.
Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape
case, etc.
b) Doctrine of Correctional Vengeance:- It may be stated as-
‘When the society, in a fit to get justice, demands the concerned authorities to inflict
vengeful (as painful as the original act, or even more) punishments upon the victim for
creating a deterrent, it is said to exhibit correctional vengeance.’
The above definition, too, is quite self-explanatory in its nature. Now that we have
understood these two doctrines, we have a basic idea about what really is
retributivism or retributive justice.
Analysis of Retributive Theory of Punishment:
‘The concept of retributive justice has been used in a variety of ways, but it is best
understood as that form of justice committed to the following three principles:
a) that those who commit certain kinds of wrongful acts, paradigmatically serious
crimes, morally deserve to suffer a proportionate punishment;
b) that it is intrinsically morally good—good without reference to any other goods that
might arise—if some legitimate punisher gives them the punishment they deserve; and
c) that it is morally impermissible intentionally to punish the innocent or to inflict
disproportionately large punishments on wrongdoers.’
The above three principles clarify the needs for retributive justice even further. We may
understand retributive justice in this manner. The place where both Criminal Law as
well as Moral Law meet, is the place where mostly the retributive punishments are
generated.
In fact, although people may classify punishments into seven different types, but in
reality, every punishment, indeed, is retributive in nature. It is very interesting to see
that the damages claimed under Torts, or the remedies sort for environmental
violations, maybe compensatory, but at their hearts, are retributive in nature. Then
why aren’t they labelled as retributive, instead? Well, the answer to the question is
simple. Retributive punishments are somewhat vengeful in their nature
(an eye for an eye). They may not be vengeful always, but maybe merely morally
vengeful. When we say this, it means that although the punishment is not literally the
thing that was originally done by the perpetrator, it still acts as a vengeance by virtue
of its seriousness.
E.g: If a person rapes someone, capital punishment maybe given as a retributive
measure. If we literally give the person back what he did, i.e., sex, then it would be
pleasurable rather than torturing for him.
Retributive Theory and the Hindu Scriptures:
The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga
Saptashati, are primarily based on Retributive Theories but also, depict the ways in
which one should proceed while applying them.
Ramayana- In the Ramayana the whole story began from retribution itself. Lakshmana
cut the nose of Raavan’s sister, because of which he kidnapped Sita. In order to rescue
her and also to avenge her kidnapping, Ram went to kill Raavan. But, the major
difference between the application of the retributive punishment between the two was
that Raavan did not even give Ram a chance to repent for his younger brother’s act,
but, Ram gave several chances to Raavan to correct his act.
Mahabharata– Mahabharata, once again, is a very good example of how retributive
punishment should be inflicted. The Pandavas had not started-off with the war right
away. They had sent Shri Krishna as their messenger of peace a number of times to
the Kauravas, but they did not give in. Mahabharata, especially Shrimad Bhagvad
Geeta, talks about the time when the retributive mode should be used. As we all know
that Arjun was about to leave the battlefield as he was too scared to go against his
own relatives, it was Krishna who said that ‘when all other paths close down, only
then war is to be resorted to. Because if then the person refuses to fight, then it will
inflict gross injustice upon the society at-large.’
Durga Saptashati– In this too, Goddess Durga warns the various demons, i.e.
Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree upon
them.
Case Laws:
a) Nirbhaya Judgement– This case is indeed the first and foremost case to be
mentioned, while talking about retributive justice in India. In this Judgement, the
Supreme Court sentenced four out of six felons involved in the extremely heinous
Delhi gang rape case to death, much to the delight of the society, as they had
committed an extremely gruesome, as well as morally unimaginable crime.
b) Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted had
already undergone a six month imprisonment term, before being officially convicted by
the Court. The Court held that since the convict had been convicted and also, the
required ‘blemish’ had also been imposed upon him, it was not necessary to sentence
him again in the name of ‘retributive punishment’, as it would inflict a very big loss
upon the family as well.
c) Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was observed
that both deterrent and retributive punishment aim at prevention of the recurrences of
the offences by others passing exemplary punishment for a particular offence. But the
civilization and the societies are progressing rapidly. There is advancement of science
and technology. The literate people and the experts in different branches of knowledge
started thinking in a different way. Eye for an eye, and tooth for a tooth are no more
considered as the correct approach towards the criminals. Such principle may
perpetuate the rule of the Jungle but cannot ensure the rule of law.
Pros and Cons:
Pros-
1. Acts as a strong deterrent.
2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary.
Cons-
1. Sometimes, may become disproportionate with the seriousness of the crime.
2. Society develops feelings of vengeance and destructive tendencies follow.
3.The State may become autocratic in its functioning, using the punishment to
torment people.
2) DETERRENT THEORY OF PUNISHMENT
In Deterrent theory of punishment, the term “DETER” means to abstain from doing
any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals
from attempting any crime or repeating the same crime in future. So, it states that
deterring crime by creating a fear is the objective; to set or establish an example for
the individuals or the whole society by punishing the criminal. That simply means,
according to this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it may result maybe that the people of the society will be or
may be aware of the severe punishments for certain kinds of crimes and because of
this fear in the minds of the people of the society, the people may stop from
committing any kind of crime or wrongful act.
Jurisprudential School of Thought:
The deterrent theory can be related to the sociological school of Jurisprudence. The
sociological school creates a relationship between society and law. It indicates law to
be a social phenomenon, with a direct and/or indirect connection to society. One of
the main aim of the deterrence is to establish an example for the individuals in the
society by creating a fear of punishment.
“Who established this deterrent theory of punishment?”
The concept of deterrent theory:-
Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy Bentham
(1748-1832).
These social contract thinkers provided the foundation of modern deterrence in
criminology.
According to J. Bentham, who is known as the founder of this theory, a hedonistic
conception of man and that man as such would be deterred from crime if punishment
were applied swiftly, certainly, and severely. But being aware that punishment is an
evil, he says, if the evil of punishment exceeds the evil of the offence, the punishment
will be unprofitable; he would have purchased exemption from one evil at the expense
of another.
Theory of deterrence consists of 3 major components. They are as follows:
a) Severity: It indicates the degree of punishment. To prevent crime, criminal law
must emphasise penalties to encourage citizen to obey the law. Excessively severe
punishments are unjust. If the punishment is too severe it may stop individuals from
committing any crime. And if the punishment is not severe enough, it will not deter
criminals from committing a crime.
b) Certainty: It means making sure that punishments must happen whenever a
criminal act is committed. Philosopher Beccaria believed that if individuals know that
their undesirable acts will be punished, then they will refrain from offending in the
future.
c) Celerity: The punishment for any crime must be swift in order to deter crime. The
faster the punishment is awarded and imposed, it has more effect to deter crime.
Therefore, deterrence theorists believed that if punishment is severe, certain and swift,
then a rational person will measure the gain or loss before committing any crime and
as a result the person will be deterred or stopped from violating the law, if the loss is
greater than the gain.
Deterrent Theory and the Hindu Scriptures:
Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that
there were several punishments like public hanging, not only that but also people were
immersed in hot oil or water. Most penal systems made use of deterrent theory as the
basis of sentencing mechanism till early 19th century.
• In England, punishments were more severe and barbaric in nature to restrict same
crime
in the future. At the time of ‘Queen Elizabeth I’, deterrent theory of punishment was
applied for restricting future crimes, even for too little crimes like ‘pickpocketing’.
• In India also, inhuman punishments are granted.
But, if we discuss or follow this theory in today’s context, then, it will be very clear
that “deterrent theory” is not applicable at all or it may not be useful enough to
prevent or to deter crimes by creating a fear in the minds of people. We have a very
recent example of why deterrent theory is not successful in the case of “Nirbhaya Rape
Case, 2012”. This case is the foremost case to be mentioned while talking about
deterrent theory of punishment. In this judgement, the Supreme Court sentenced four
out of six offenders involved in the extremely heinous Delhi gang rape case to death.
Now, the most important questions are-
• Whether the death sentence to the culprits will act as a deterrent?
• Will the number of crimes against women in our society drop down permanently?
• Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled?
The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter
crime, by creating a fear or establishing an example to the society.’ Now, death penalty
is a severe punishment. In the Nirbhaya case, the Court gave death sentence to the
four convicts for committing gang rape. We can say that it is a great example for future
offenders who will think about committing a crime like rape in future. So, according to
this theory, after Nirbhaya judgement crimes like rape should not happen. But they
are happening till now. Day-by-day, rape cases are increasing in our society.
In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been
served to “India’s Daughter” and though the decision came after a staggering seven
years, it will help to secure the safety of women and prevent rape cases in the future.
But it seems to further, as starting of the year 2020 has seen a slew of rape cases
continue unabated. As an example, we can see for a recent gang rape case which was
happened at Hathras, Balrampur, on 1st October 2020. So, simply we can see that
there is no improvement through severe punishments also. “Death penalty does not
act as a deter to rape cases”- This is the actual message we have understood. So that’s
why we can say that in today’s generation there is no major implication of ‘Deterrent
Theory of Punishment’.
3) PREVENTIVE THEORY OF PUNISHMENT
Preventive theory of punishment seeks to prevent prospective crimes by disabling the
criminals.Main object of the preventive theory is transforming the criminal, either
permanently or temporarily. Under this theory the criminals are punished by death
sentence or life imprisonment etc.
Philosophical View of Preventive Theory:
Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive
theory of punishment due to its humanising nature. Philosophy of preventive theory
affirms that the preventive theory serves as an effective deterrent and also a
successful preventive theory depends on the factors of promptness. The profounder of
this theory held that the aim of punishment is to prevent the crimes. The crimes can
be prevented when the criminal and his notorious activities are checked. The check is
possible by disablement. The disablement may be of different types.
Confining inside the prison is a limited form of disablement, that is temporary and
when it is an unlimited form of disablement, that is permanent. It suggests that
imprisonment is the best mode of crime prevention, as it seeks to eliminate offenders
from society, thus disabling them from repeating the crime. The death penalty is also
based on this theory. This theory is another form of deterrent theory. One is to deter
the society while another is to prevent the offender from committing the crime. From
an overall study, we came to know that there are three most important ways of
preventive punishment, they are as follows:
• By creating the fear of punishment.
• By disabling the criminal permanently or temporarily from committing any other
crime.
• By way of reformation or making them a sober citizen of the society.
Case Laws:
1. Dr. Jacob George v State of Kerala: In this case, the Supreme Court held that the
aim of punishment should be deterrent, reformative, preventive, retributive &
compensatory. One theory preferred over the other is not a sound policy of
punishment. Each theory of punishment should be used independently or
incorporated on the basis of merit of the case. It is also stated that “every saint has a
past & every sinner has a fortune”.
Criminals are very much a part of the society so it is a responsibility of the society also
to reform & correct them and make them sober citizens of the society. Because the
prevention of crime is the major goal of the society and law, both of which cannot be
ignored.
2. Surjit Singh v State of Punjab: In this case, one of the accused, a policeman
entered the house of the deceased with the intention to commit rape but failed to do so
as the as sons of the deceased shouted for help. Another accused suggested the
policeman to kill the deceased. The accused was held liable under section 450 of the
Indian Penal Code. While on the contrary, the death penalty or capital punishment is
more of a temporary form of disablement.

4) REFORMATIVE THEORY OF PUNISHMENT

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object of
discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way, an
exertion ought to be made to change him/her during the time of his/her detainment.
For example, he may have executed bad behaviour under conditions which may never
happen again. Hence an effort should be made to transform him during the hour of
his
confinement. The object of order should be to accomplish the moral difference in the
liable party. He ought to be told and perform some craftsmanship or industry during
the hour of his confinement with the objective that he may have the alternative to start
his life again after his conveyance from jail.
History of the Reformative Theory:
The human development has consistently been administered under the standard of an
incomparable force. The job and type of pre-eminent force has changed throughout a
long term. Beginning from the primitive type of Government to the present just,
republican and different types of Governments, the obligation of the incomparable
authority has changed a lot. The idea of discipline has additionally changed like the
idea of State duty throughout the long term. The idea of discipline relied upon the
premise of religion and the organisation of the Kings. During old occasions, the idea of
discipline was retributive premise, where the hoodlums were given uncouth type of
discipline. Afterward, over the entry of ages, the significance of common liberties
expanded which in essence cleared path for the replacement of Retributive hypothesis
by Reformatory and Rehabilitative hypotheses. Under the Reformative and
Rehabilitative hypotheses, the blamed are given such structures for discipline which
would change them and keep them from perpetrating such wrongdoings.
The theory of punishment being followed in India with the goal to change the crooks as
opposed to rebuffing them isn’t that compelling in avoidance of the event of violations
in India. The essential idea of law isn’t to be static, but to be dynamic in nature. At
exactly that point the law will have the option to be successful in all fields of the
general public.
The Main Purpose Reformative Theory:
The reason for this hypothesis of discipline is to make the criminal languish over his
bad behaviour. Here the motivation behind the discipline is profoundly customised
and rotates around the mental outlet of the person in question or his family. The
primary reason might be accomplished to parole and probation, which have been
acknowledged as current procedures of improving the guilty
parties all around the globe. Consequently, the backers of this hypothesis legitimise
imprisonment not exclusively to separate hoodlums and kill them from society. Not
many of the advanced reformative procedures of discipline are essentially concocted
for the treatment of guilty parties as per their mental attributes, for example,
probation, parole, uncertain sentence, exhortation and pardon. The reformative
techniques have demonstrated to be valuable in the event of adolescent misconduct,
first wrongdoers and ladies. Sex cases additionally appear to react well to the
reformative strategy for discipline. All the more as of late, the reformative hypothesis is
in effect widely utilised as a technique for treatment of intellectually denied
wrongdoers.
Criticism:
1. Reformative theory anticipates better framework and offices in jail, legitimate
co-appointment between various control and diligent exertion on their part to shape
criminals. It requires gigantic ventures which poor nation can’t bear the cost of.
2. A great many guiltless individuals who have high respects for law are finding hard
to get fundamental courtesies hypothesizes moral avocation for giving better offices
inside jail.
3. Also, the soundness of the hypothesis is more towards motivators for the
commission of wrongdoing instead of counteraction.
4. Transformation can work out on those individuals who can be improved, there are
individuals who can’t be changed like bad-to-the-bone lawbreaker, profoundly
instructed and proficient hoodlums.
5. This theory disregards possible wrongdoers and people who have submitted
wrongdoing however not inside the arms of law. Further, it ignores the cases of
survivors of violations.
6. Degenerate social ecological is liable for wrongdoing yet not person duty, is the way
of thinking of reformative which is difficult to process. In any case, it is out of line to
excuse the honourable idea of reconstruction as a complete disappointment. All know
about the occasions where untalented, uninformed and evidently hopeless
lawbreakers have created aptitudes in jail, which have changed them into profoundly
valuable people.
5) COMPENSATORY THEORY OF PUNISHMENT
Definition:
The main look out in the law of crimes is to penalise the criminal, and/or to seek his
reformation and rehabilitation with all the resources and goodwill available through
the Courts and other Governmental and non-Governmental organisations. It must be
seen that the criminals should get proper judgement for their crimes so caused and
the harassment caused to the victim and towards their family members and property.
The victims in a crime can be compensated on mainly two grounds, namely:-
1. A criminal who had inflicted an injury against the person (or group of persons), or
the
property must be compensated for the loss caused that has caused to the victim, and
2. The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.
Compensation is the true essence of deterrent, reformative and a necessary
contribution of retribution.
Case Laws:
a) In the landmark case of DK Basu v. State of West Bengal the Apex Court held that a
victim who is under the custodial right, has every right to get compensated as her
Right to Life, which is under Article 21 of the Constitution, has been breached by the
officer of the State.
b) In State of Gujarat and Anr. v. Hon’ble High Court of Gujarat, Justice Thomas had
held that, “The Reformative and reparative theories deserve serious consideration,
where the victim(s) of crime or his family members should get compensated from the
wages that is earned in prison by the criminal.” The Court suggested that the
particular State should enact a comprehensive legislation in respect of his
compensation payable to the victim of a crime.
5) EXPIATORY THEORY OF PUNISHMENT
MEANING
Expiation” means “the act of expiating; reparation; amends; compensation; atonement.
According to Expiation Theory, compensation is awarded to the victim from the
wrong-doer.
ANCIENT PERIOD
The expiatory theory was based on moral principles, had little to do with law or legal
concepts. This theory is more related to ancient religious perceptions regarding crime
and punishment when prisoners were placed in isolated cells to repent or expiate for
their crime or guilt from the core of their heart and resolve to shun crime. It was
believed that anyone who sincerely repents for his misdeeds or crimes, deserves to be
forgiven and let off. The ancient Hindu law commentator Manu was a great admirer of
expiation as a form of punishment for the rehabilitation of the criminal in society. The
expiatory theory, being based on ethical considerations, has lost its relevance in the
modern system of punishment. In the present age of materialism and declining moral
values, expiration can hardly be effective in bringing about a change in the criminal
mentality of offenders and therefore, expiatory theory as a punishment is not suited in
the present context of rationalised penal policies but now it has come with broader
aspect with the different retributive concept in tortious liability and in some penal
provision of Indian Criminal justice as in compoundable offence reference section 320
of criminal procedure code.
MODERN PERIOD
According to the Modern Expiation Theory, compensation is awarded to the victim
from the wrongdoer. By crimes awarding compensation from the pocket of the
wrong-doer, he is punished and is prevented from doing such offences in his
remaining life. This also becomes a lesson to the remaining public. Generally, in other
systems of punishment, the victim is not taken into consideration. The present
criminal justice system concentrates only on punishing the criminal.
The Courts are not in a position to point out the grievance of the victim or his family
members. They only have the aim to prevent the crimes. They only know to’ punish
criminals. Recently by the efforts of the sociologist’s criminologists, penologists, etc.
The criminals are also not punished severely, and there are certain rehabilitative and
reformative steps taken to reform the criminals. It is a good and welcome measure.
Then what about the real victims, who suffered in the hands of such criminals? In
majority cases, the real victim also becomes a criminal and wants to take revenge
against the wrong-doer or his family. Psychologically, economically, socially, etc., the
victim is not satisfied by mere punishment on the criminal. The jurisprudents, jurists,
criminologists, penologists, sociologists, etc., too are not concentrating.
CONCEPT OF VICTIMOLOGY AND EXPIATORY THEORY
Recently separate researchers, scientists under the name of “Victimologists” are
propounding to give certain remedies to the aggrieved victims and their families. This
separate science is called “Victimology”. This theory supports the Expiation Theory.
According to the Victimologists, the chain reactions of personal revenge can be
decreased in society by awarding compensation to the victims from the property of the
criminals. It can prevent criminal behaviour in society. Because it stops the chain
reaction. It subsides the personal revenge. Economically too, the victim or his family
members satisfy with the money and can lead their remaining life safely. It also
creates repentance in the minds of the criminals. Thus considerable sects of modern
criminologists, jurists, penologists, jurisprudents, sociologists, etc. support the idea of
victimology and expiation theory.
Case Laws
a)
State
Vs.
Sayyaduddin
1996 AP
Justice Motilal Naik of Andhra Pradesh High Court gave a sensational judgement on
25-11-1996 covering this expiation theory. The case particulars are: Sayyaduddin and
his brother raided Maslehuddin due to personal grudges. As a result, Maslehuddin
was killed. The High Court imposed three years imprisonment to the accused and
awarded Rs. 60,000/- as compensation payable by the accused to the family members
of Maslehuddin. Delivering the judgement, Justice Motilal Naik observed:
“By imposing imprisonment on the accused could not be helpful to the family
members of the victim. In my opinion, it is better to help the victim’s family members,
as there is no one to look after them after the death of the bread-earner. Therefore, it
is justified to impose a penalty/fine of Rs. 60,000/- on the accused besides sending
him to prison for three years.”
According To J.G. Riddal
The theory is linked with the retributive theory and is, sometimes, considered to be
part of it. Hagel and Kohler are the main supporters of this theory. Hagel says that the
punishment makes the criminal to expiate for the wrong done. This theory is based on
morals. This theory is now obsolete. The principles of morality can’t wholly and solely
come under the domain of law. At present, the organisation of the state, its functions,
human habits, attitudes have all developed to a great extent. According to Paton, this
theory is based on moral doctrine and, therefore is beyond the limits of
modern law and jurisprudence.
KINDS OF PUNISHMENT
(INCLUDES IPC CHAPTER III: SECTIONS 53 TO 75)
Introduction
Under the sanction of the law, punishment is retribution on the offender to the
suffering in person or property which is inflicted by the offender. Punishment is the
way through which an offender
can be stopped from doing offences against person, property, and government.
Therefore, punishments can be of various types like deterrent, rehabilitative,
restorative and retributive.
Sentencing Policy
Under the Indian Penal Code, the sentencing policy is measured on the following
factors:
• The gravity of the violation;
• The seriousness of the crime; and
• Its general effect upon public tranquillity.
There is a correlation between measures of punishment and the measure of guilt.
Accordingly, the sentencing policy in a particular offence is standardised.
In March 2003, a body was established by the Ministry of Home Affairs, the Malimath
Committee (the Committee on Reforms of Criminal Justice System) in India. The
purpose of the committee was to give recommendations on the sentencing guidelines
for the Indian Judiciary. The aforesaid committee had issued its report in which it
stated that there is a need to introduce guidelines on sentencing to minimise the
uncertainty of awarding sentences. The committee observed that “for many offences,
only the maximum punishment is prescribed and for some offences, the minimum
may be prescribed” and thereby there is a lack of uniformity. This results in wide
discretionary powers to the Judges to decide the sentencing duration, which leads to
uncertainty in the sentencing policy. In 2008, the Madhava Menon Committee (the
Committee on Draft National Policy on Criminal Justice), again reaffirmed the need for
statutory sentencing guidelines.
As per the white paper introduced by the British Parliament, the aim of having a
sentencing policy should be “deterrence and protection of society from evils”. The lack
of sentencing policy will not only affect the judicial system but it will also substantially
harm society.
Fundamental Principles for Imposition of Different Types of Punishments
As per the United States Institute of Peace, the principle of the imposition of
punishment can be based on:
1. The necessity for criminal justice compulsion; and
2. The proportionality of punishment based on the nature and degree of the danger
which is present against the fundamental freedoms, human rights, social values,
rights guaranteed and protected under the Constitution or international law.
In the case of Soman v. Kerala, the Supreme Court of India cited a number of
principles while exercising discretionary powers by the Court. The general principles
are proportionality, deterrence, and rehabilitation. In the proportionality principle
aggravating and mitigating factors should be considered. Mitigating circumstances are
related to the criminal and aggravating circumstances are related to the crime.
In para 12 of the Soman’s case, the Supreme Court pronounced that “Giving
punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our
country, it is the weakest part of the administration of criminal justice. There are no
legislative or judicially laid down guidelines to assist the trial court in meting out just
punishment to the accused facing trial before it after he is held guilty of the charges.”
Further, the court acknowledged and opined the observation made in the case of State
of Punjab v. Prem Sagar, wherein the Court stated that “In our judicial system, we
have not been able to develop legal principles as regards sentencing. The superior
courts except making observations with regard to the purport and object for which
punishment is imposed upon an offender have not issued any guidelines.” Therefore,
there is a necessity to have a sentencing policy with due consideration to the
recommendations made by the Madhava Menon Committee and Malimath Committee.
SCOPE OF SECTION 53
In the Indian Penal Code, 1803 (“Code”), Section 53, specifically deals with different
types of
punishments which can be given by the Criminal Courts if the person is held liable
under the Code.
There are five kinds of punishments recognized under Section 53 of the Code:
1. Death;
2. Imprisonment for life;
3. Imprisonment:
a. Rigorous Imprisonment; or
b. Simple Imprisonment.
4. Forfeiture of property;
5. Fine.
Considering the above punishments, the courts are supposed to follow the procedures
and provisions which are prescribed under other adjective and substantive laws.
As per the scheme of the Code the maximum punishment is prescribed, leaving the
minimum to the discretion of the Judge. The Judge has all the means to form an
opinion on the sentence which would meet the end of justice in a particular case. If
the offence is grave in nature then the Code had prescribed the maximum and the
minimum duration of the punishment.
Principles for Sentencing
The principle for sentencing developed through court decisions and legislation. And
these principles form the sentencing decisions. The principles which are generally
followed by the court are as follows:
• Excessiveness/Parsimony– the punishment which is given shall not be severe
unless
required.
• Proportionality– the sentencing shall fit to the overall gravity of the crime.
• Parity– the punishment should be similar for similar types of offences committed by
offenders under similar situations.
• Totality– when an offender is punished with more than one sentence, the overall
sentence must be just and appropriate which shall proportional to the offending
behaviour.
• Purpose– the sentencing shall achieve the purpose of the punishment. The purpose
of punishment can be a deterrent, rehabilitative, protection of the public, etc.
• Simplicity and predictability– sentencing shall not be depending on the bias or
personality of the judge. There shall be a clear and definite scheme of sentencing.
• Truthfulness- the sentencing shall reflect the actual term to be served by the
prisoner in prison, so there shall be no place for ambiguity.
Aggravating Circumstances
The aggravating circumstances to which the Judges consider are as follows:
1. The surrounding of the crime itself;
2. The circumstances relating to the criminal’s background;
3. The circumstances relating to the criminal’s conduct;
4. The criminal’s future dangerousness;
The other factors which are considered under aggravating circumstances are as
follows:
• Professionalism and premeditation;
• Prevalence of offence;
• Offences committed in the group;
• Breach of trust.
In the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach
which was laid down in the case of Bachan Singh was subsequently not fully adopted
by the courts. The mitigating factors and aggravating factors both need to be
considered and balanced while sentencing a punishment to the accused.
1. DEATH SENTENCE
The death sentence is a punishment which is sanctioned by the government and
ordered by the court where a person is put to death for a crime committed by him. It is
also referred to as ‘Capital Punishment’. The act of carrying out such practice is called
execution. As per the Amnesty International survey, the report as of July 2018 is 56
countries retain capital punishment and 106 countries have completely abolished
capital punishment for all crimes. In India, the death penalty is given by the method of
hanging. The other ways through which death sentences executed at world scenarios
are stoning, sawing, blowing from a gun, lethal injection, electrocution, etc.
The subject of the death sentence has always been a matter of controversy. While
considering the Constitution as the supreme, the validity of death sentence v/s
fundamental rights constantly came forward for the debates. However, the death
sentences are rarely given in the Indian criminal courts.
In the case of Bachan Singh vs State Of Punjab, the Supreme Court held that
capital punishment shall be given in the “rarest of the rare” case. However, what
constitutes the “rarest of the rare cases” is not prescribed by the Supreme Court or by
the legislature.
In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC ruled that the
approach towards imposing capital punishment shall be balanced on mitigating and
aggravating factors of the crime. However, in the case of Bachan Singh, for the first
time, this approach was called into question due to the amendments in the Cr.P.C. As
per the amendment in the Cr.P.C. in the offence of murder the offender shall be
punished with the sentence of life imprisonment. After taking due consideration of the
amendment, the Court stated that capital punishment shall be given in special cases
only. However, in the case of Sangeet & Anr. v. State of Haryana, the court noted that
the approach laid down in Bachan Singh’s case is not fully adopted. The courts still
give primacy to the crime and not to the circumstances of the criminal. The balance of
the mitigating and aggravating factors have taken a bit of a back seat in ordering
punishment.
The provisions under which the death penalty is given as punishment under IPC are
as follows:
• Section 115– Abetment for an offence punishable with death or imprisonment for life
(if offence not committed);
• Section 118– Concealing design to commit an offence punishable with death or
imprisonment for life.
• Section 121– When armed rebellion (i.e. waging, abetting to waging of war or
attempting to wage war) is made against the constitutionally and legally established
government;
• Section 132– Uprising, supporting and encouraging the formation of the mutinous
group of people in the nations armed forces;
• Section 194- With the intent to obtain a death sentence to an innocent by presenting
concocted vexatious proof;
• Section 302– Causing murder of another;
• Section 305– Abetting suicide to an insane or minor person;
• Section 303– When a life convict person murders another person;
• Section 396– Causing dacoity with murder;
• Section 364A– Kidnapping;
• Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape
Some other Acts under which the death penalty covered as punishment are:
1. Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of sati.
2. Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug
trafficking
in cases of repeat offences.
However, the death penalty as a punishment is an exception to certain persons like
intellectually disabled, pregnant women and minors.
Procedure When Death Penalty is Imposed
The death sentence is executed by two modes in India:
1. Hanging by the neck till death (this is mostly ordered by the Courts);
2. Being shot to death.
The various states of India have jail manuals that provide a method for the execution
of death sentences. In accordance with Section 354(5) of the Code of Criminal
Procedure Act, 1950 hanging by neck till death is the mode of the execution. After the
death sentence is awarded by the court, the accused have the right to appeal the
order. After exhausting all remedies and confirmation of the order, the execution is
made as per procedure under Section 354(5) of Cr.P.C.
The process of execution is provided separately under the Air Force Act, 1950, the
Army Act, 1950 and the Navy Act, 1957. However, the procedure under the
above-mentioned defence acts is applicable to defence officers only.
The Prison manual of different states of India gives detailed instructions about the
execution particulars. Some are as follows:
1. The prisoner who is convicted for death sentence shall be given a proper diet,
examined
twice a day. The officers shall satisfy that the prisoner has no article by which he can
attempt for suicide.
2. The description of the rope and testing of rope.
3. Regulation of the drop while executing the hanging.
4. Time of executions.
Constitutional Validity of Death Penalty
The issue of the death penalty is not a recent issue. It has been discussed, studied
and debated for a prolonged time. However, till today no conclusion is drawn about the
abolition or retention of the provision. The death penalty has been the mode of
punishment from the British era. Various countries have abolished this practice.
However, in Arab countries the principle of retributive punishment i.e. “an eye for an
eye” is practised. In the list of retentionist countries as mentioned above, India is one
of them which have retained to give death penalty unless some ‘special reasons’
or ‘rarest of rare case’ conditions arise.
Under Article 21 of the Constitution of India, the right to life and liberty is guaranteed,
including the right to live with human dignity. There are certain exceptions that are
recognized by the law wherein in the name of law and public order the state can
restrict the rights. In Maneka Gandhi v. Union of India, the SC laid down the principle
of “due process” through which a state can restrict
the citizens from enjoying their rights. In the case of the death penalty the due process
can be as
follows:
• Death penalty to be given in ‘rarest of the rare’ cases;
• The accused shall be given the ‘right to heard’;
• As per Article 136, the death penalty shall be confirmed by the High Court;
• Under Section 379 of the Cr.P.C., the accused have the right to appeal in the
Supreme
Court;
• Under Section 433 and 434 Cr.P.C., the accused may pray for commutation,
forgiveness, etc. of the sentence.
In various cases, the constitutional validity of the death penalty was challenged. In the
case of Jagmohan Singh v. State of U.P, the argument was that the death penalty is in
violation of Article 14 (Right to Equality), Article 19 (Right to Freedom) and “right to
life” i.e. Article 21, which has been unanimously rejected by the five-judge bench of
the Supreme Court. Further, it was contended that as per Cr.P.C. the procedure is
confined to findings of guilt and not awarding death sentence. However, the Supreme
Court held that the death sentence is a choice by the court made according to the
procedure established by law and the choice between capital sentence or
imprisonment of life is based on the circumstances, nature and facts of the case
brought during the trial.
In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer had empathetically
stressed
that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer
said two
conditions under which the death penalty can be given:
• While giving the death penalty the court shall record special reasons.
• Only in extraordinary cases the death penalty to be imposed.
However, in the case of Bachan Singh vs. State of Punjab, within one year the
five-judge bench (4:1- Bhagwati J. dissenting) overruled the decision of Rajendra
Prasad’s case. The judgement expressed that the death penalty is not violative of
Article 14,19 and 21 of the Constitution of India
and pronounced that in the “rare of the rarest case” i.e. those cases in which the
collective conscience of the community is so shocked that it will expect the judiciary to
deliver the death penalty on the accused the death penalty can be ordered. Justice
Bhagwati in his dissenting judgement stated that the death penalty is not only being
violative to Article 14 and 21 but also undesirable because of several other reasons.
Further, in the case of Machhi Singh vs. State of Punjab, the Supreme Court laid
down the broad outlines of the circumstances under which the death sentence can be
imposed. The court pointed out that under five categories of cases the extreme penalty
can be given.
Those points are as follows:
1. Manner of commission of murder;
2. Motive;
3. The magnitude of the crime;
4. Anti-social abhorrent nature of the crime;
5. The personality of the victim of murder.
Similarly, in the case of Sher Singh v. State of Punjab and Triveniben vs. State of
Gujarat, the Apex court asserted affirmatively that the death penalty does not
invalidate the rights enriched under the Constitution of India.
In the case of Mithu v. State of Punjab, the Supreme Court held that the mandatory
death penalty is invalid and unconstitutional in nature. However, no comments were
made on the consequent legislation for drug and criminal offences wherein the death
penalty is considered mandatory. But at the same time, Indian courts actually applied
the mandatory death penalty for these crimes.
However, recently in the case of Channu Lal Verma v. State of Chattisgarh, the
question of the constitutional validity of the death penalty came to the three-judge
bench. The Bench Constituted of Justice Kurian Joseph, Justice Deepak Gupta, and
Justice Hemant Gupta. The bench upheld the decision of the Bachan Singh case.
However, Justice Kurian Joseph had a different view, he said that “there is no
substantial proof for the death penalty as a deterrent to crime”.
Sentencing Procedure:
Mandatory Provision of Section 235(2), Code of Criminal Procedure 1973
In the ‘41st report of Law Commission’, it recommended for the insertion of new
provision which made a significant contribution in acknowledging the cardinal feature
of procedural fairness and natural justice. Under the old code, there was no statutory
opportunity given to the accused to explain the mitigating factor which is relevant to
decide the nature of the punishment. However, after the recommendation of the
Commission introduction of Section 235(2) and Section 248(2) of the Cr.P.C. was
made.
The new provisions provided an opportunity for the convict to place necessary
information to the court to determine the mitigating factors and decide the case
accordingly. Therefore, the choice of sentence shall be made after following the
procedure under section 235(2) duly followed by the court. In the cases of death
sentence the importance of “right of hearing” has been overemphasised.
In 1976, in the case of Santa Singh v. State of Punjab, the Supreme Court explained
the nature and scope of Section 235(2). The Bench remarked that “The provision is an
acknowledgement of the fact that sentencing is an important stage in the criminal
justice administration as the adjudication of guilt. And in no case, it should be
consigned to a subsidiary position. It seeks to personalise the punishment so that the
reformist component remains as much operative as the deterrent element.
It is, for this reason, the facts of social and personal nature, maybe irrelevant for guilt
determination, should be brought to the notice of the court at the time of actual
determination of sentence”.
Further, the court also opined about the meaning of the word ‘hearing’. The hearing is
not only limited to the oral submissions but it is wider than that. It gives both parties
the right to put facts and materials which can be essential for the questions of
sentencing. The Court stressed on the
point that it is mandatory for the lower courts to comply with this provision. Not
complying with Section 235(2) will not only be considered as mere irregularity, but
that shall vitiate the sentence.
In the case of Allauddin Mian v. State of Bihar, Justice Ahmadi emphasised the
purpose of Section
235(2):
1. It gives the accused an opportunity of being heard, which satisfies the rule of
natural
justice;
2. To determine the sentence of the award it assists the court.
Case laws on Death Sentence
(When the death sentence is confirmed)
(1) State of Tamil Nadu v Nalini
In this case, the case was filed as an appeal against the judgement of the High Court
of Tamil Nadu. This case is popularly known as Rajiv Gandhi’s assassination case. The
offenders were accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy
Act, 1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959, Explosive
Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules, The Terrorist And
Disruptive Activities (Prevention) Act, 1987. In the case, there were 26 accused out of
which four accused were punished death penalty by the Apex Court. The accused were
from the LTTE (Liberation Tigers of Tamil Eelam) group and were seeking revenge for
the Indian government’s decision for sending army troops in Sri Lanka. However, as
per recent update Nalini Sriharan, V Sriharan, and Murghan
have applied plea for mercy killing as there is no response to their mercy petition till
date.
(2) Jai Kumar v State of Madhya Pradesh
In this case, an appeal by the grant of special leave against the order of the Division
bench of the High Court of Madhya Pradesh was made. In this case, the accused
brutally murdered sister-in-law and 7-year-old niece. The Court considered the factual
matrix of the case and observed that the act of murder was not done in the rage and
the accused himself under Section 313 of the Cr.P.C admitted the murder. Thereby,
the Supreme Court upheld the verdict of the Sessions Court and the High Court of
Madhya Pradesh.
Case laws on Death Sentence (When Death Sentence has been Commuted to Life
Imprisonment)
(1) Om Prakash v State of Haryana
In the case of Om Prakash v State of Haryana, the accused named Om Prakash was
guilty of seven murders, thereby the Sessions court held him guilty under Section 302
of IPC, which was upheld by the High Court of Punjab and Haryana. There were two
other accused but they were given life
imprisonment and a fine of Rs.2000.
During the appeal to the Apex Court, the court observed that mitigating factors of the
case and considering other circumstances of the case, this cannot be counted under
the rarest of rare cases. The court considering the background of the case found that
the murder was acted due to constant harassment of the family members (deceased
ones).
Further, the court observed that this is not the case which was committed to fulfil the
lust for women or wealth, neither it is for money, the act does not include any
anti-social element like kidnapping or trafficking, the act does not include any dealing
in dangerous drugs, nor any act committed for political or power ambitions. And
further, the accused was working in BSF at the age of 23 with no criminal
antecedents. Thereby, the Apex Court converted the death penalty to the sentence of
imprisonment for life.
(2) Rajendra Rai v. State of Bihar
In the case of Rajendra Rai v. State of Bihar, the accused were held guilty of the
murder of Krishnandan (deceased no.1) and Sir Bahadur (the son of deceased no. 1),
as the accused and deceased, had a dispute over the land situated between their
houses. The Trial court-ordered death penalty and the High Court confirmed the
order.
However, the Apex Court was of the view that the case cannot be regarded under the
rarest of rare cases. Thereby the death penalty was reduced to life imprisonment.
Commutation of Death Sentence by the State or Central Government Scope
The powers of commutation of the death sentence by the State and Central
government is provided under the following provisions of the Constitution:
1. Article 72– gives pardoning power to the President.
2. Article 161– gives pardoning power to the Governor.
The difference between Article 161 and Article 72 are:
1. Article 161 is narrower than Article 72.
2. Article 72 covers the punishment sentenced by a Court Martial, however, Governor
is not entitled with such powers.
3. Article 72 covers all death sentences, however, under the ambit of Article 161 death
sentences are not covered.
2) IMPRISONMENT FOR LIFE
Life imprisonment is one of the types of punishment which is recognized under Section
53 of the
IPC. Earlier this was also known as transportation for life. This punishment is given
for serious
crimes wherein the convicted remains in prison until his/her last breath.
Scope of Section 57
Section 57 of the IPC is used when fractions of terms of punishment need to be
calculated.
However, it is important to understand that this section does not give any implied or
explicit right to the prisoner to reduce his life imprisonment to 20 years of the
sentence.
Under some sections like Section 116, 119, 120 and 511 of the Code, the prisoners
can ask for relief under this section.
Is Life Sentence for Period of 14 Years?
In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex Court clearly
stated that reading Section 55 of the Code and Section 433 and 433A of Cr.P.C, life
imprisonment is not confined to 14 years of imprisonment, only the appropriate
government can commute the life imprisonment of the prisoner.
The government can commute the punishment of life imprisonment to the
imprisonment of a term equal to or less than 14 years, or if the prisoner exceeds 14
years of imprisonment then he can be released.
In 1961 in Gopal Vinayak Godse vs. The State of Maharashtra & Ors., the
question ‘whether there is any section in the law wherein the life imprisonment
without formal remission by the appropriate government can be automatically treated
as one for a definite period?’ came to the Apex Court as a question of law.
Answering the question the Apex court pointed out the observation made by the
judicial committee which stated that, the transportation for life shall be deemed to be
transportation for 20 years, however, this does not say that it shall be deemed to be
considered the same for all purposes. Further, the provisions under which
transportation for life has been amended to imprisonment for life can also not be put
under Section 57 IPC.
Therefore, a sentence of imprisonment for life or transportation for life must prima
facie need to be considered as
imprisonment or transportation for the whole life of the prisoner till his natural death.
The distinction between ‘Commutation’ under Section 55, Indian Penal Code 1860,
and Section 433, Code of Criminal Procedure 1973
There is a thin line difference between Section 55, IPC and Section 433, Cr.P.C.
Section 55 of IPC covers only the commutation of life imprisonment for a term not
exceeding 14 years.
Whereas Section 433 of Cr.P.C. covers the following powers of commutation of the
appropriate government:
1. Death sentence- to any other punishment can be given which is recognised under
the
IPC.
2.Life imprisonment - imprisonment not exceeding 14 years or fine.
3. Sentence of rigorous imprisonment- to any term of simple imprisonment (within
the
term he is convicted ) or fine.
4. Sentence of simple imprisonment- Fine.
However, both provisions give power to the appropriate government to commute the
sentencing
of the offender without the consent of the offender. For the understanding of the
section, the appropriate government can be either State or Central Government. If the
order is passed under the matter which is exclusively covered by the Union List, then
the central government will be
considered as an appropriate government.
Otherwise, in all other cases, the State Government will have the power to commute
the sentence.
In the case of Harishankar, Gayaprasad Jaiswal vs State Of Gujarat, the Gujarat
High Court observed that Section 55 of IPC is independent of Section 433 (b) of Cr.P.C.
3) IMPRISONMENT
The general meaning of imprisonment means captivity or to put someone in prison.
Under Section 53 of IPC, imprisonment can be of two types. One is simple and the
other is rigorous.
As per Section 60 of the IPC, the competent court has the discretion to decide the
description of sentencing. It can be of various types, like:
1. Wholly or partly rigorous; or
2. Wholly or partly simple; or
3. Any term to be rigorous and the rest simple.
Minimum Wages for Prisoners
The prisoners who are prisoned in jail get wages for doing work inside the jail. The
work done by them either can be voluntary or it can be part of their punishment. The
wages of the prisoners are fixed as per their skills. Their classification is based on:-
a) skilled,
b) semi-skilled and
c) unskilled.
Kerala High Court was the first High Court which took the initiative of giving minimum
wages to the prisoners.
The National Human Rights Commission (NHRC) after taking into the recommendation
of the Mulla Committee proposed Indian Prisons Bill 1996.
As per the Bill, it was prescribed that the wages should be fair, adequate and equitable
wage rates. While considering the minimum wage rate it shall be prevalent to each
State and Union territory agricultural, industry,
etc. wage rate. Units of work shall also be prescribed for such minimum wages. The
average per capita cost of the food and clothing shall be reduced from the wages and
the remaining wages shall be paid to the prisoners.
The wages are given on per day basis. The idea of the prisoner’s wage is to compensate
the victim
or the relative of the victim from the fund made by the prisoner’s wage. As per Prison
Statistics
India 2015 of National Crime Records Bureau (NCRB), the highest wages were paid in
Puducherry, followed by Delhi’s Tihar and Rajasthan.
The wages for skilled varied from Rs.180-Rs.150, for semiskilled Rs.160-Rs.112 and
for unskilled Rs.150-Rs.103 as per the top three high waged states.
4) FORFEITURE OF PROPERTY
Forfeiture generally means the loss of property without any compensation in return,
which is the result of the default caused by the person in terms of contractual
obligation, or in paying penalty for illegal conduct.
In two provisions the forfeiture of the property has been abolished:
1. Under Section 126 for committing depredation on territories of Power at peace with
the Government of India.
2. Under Section 127 for receiving property taken during war or depredation
mentioned in sections 126 and 126 of IPC.
5) FINE
The court may impose a fine as an alternative for imprisonment or can add it is an
addition to the imprisonment.
In certain cases the fine is added along with imprisonment. Section 63 to 69 covers
various fines under the IPC. However, as per Section 64 of the Code, when there is a
default in the
payment of a fine, the court may order for imprisonment.
Amount of Fine should not be Excessive
As per Section 63 of the IPC, when the sum is not expressed under the provisions of
the Code, the amount of fine to which the offender is liable is unlimited, however, the
fine shall not be excessive.
In the case of Palaniappa Gounder v. State of Tamil Nadu, the Apex Court stated
that the sentence given by the court shall be proportionate to the nature of the offence
which includes the sentence of fine. And the punishment shall not be unduly
excessive.
Sentence of Imprisonment for Non-payment of Fine
Under IPC Section 64, the following offences are covered:
1. Imprisonment with fine;
2. Imprisonment or fine;
3. Fine only and where the offender is sentenced to:
(i) imprisonment; or
(ii) fine or both.
In such cases, the court of competence shall direct the sentence to the offender for a
certain term.
Under Section 66 of the IPC, the court has the discretion to provide any description for
the imprisonment.
In the case of H.M Treasury (1957), the court said that in the case if the death of the
convict has occurred then also the fine will be recovered from his property.
Scope of Section 65
As per Section 65 of IPC, the court shall limit the imprisonment when the offender is
sentenced to imprisonment and fine because of non-payment of fine. The limit of
imprisonment shall not exceed (¼) one-fourth of the term of imprisonment which is
the maximum period of the particular offence.
Scope of Section 67
Under Section 67 of IPC, the offences for which this section will be applicable is the
offence which
is punishable with fine only.
1. The imprisonment so awarded shall be simple only;
2. However, the term shall not exceed the following scale:
• If fine does not exceed Rs. 50- the term shall not exceed two months;
• If fine does not exceed Rs. 100- the term shall not exceed four months;
• If fine exceeding of Rs. 100 to any amount- term shall not exceed six months.
Recovery of Fine
Under Section 421 of the Cr.P.C., the Court after passing the sentence can take the
action for the recovery of the fine in two ways:
1. The court can issue a warrant to levy the amount by attaching and selling any
movable
property which belongs to the offender; or
2. Can issue a warrant to the collector of the district at the place of living of the
offender,
authorising him to take the money from the immovable property or movable property
or both.
3. Provided that such actions shall not be ordered by the court if the offender has
undergone imprisonment due to the default he made for the payment of the fine.
Further, if the court gives any such order as after the offender has undergone
imprisonment, then the court shall give special reasons for the same.
Further, in the case of Raju Tiwari v. State of Chhattisgarh, the Chhattisgarh High
Court stated that without giving a proper ‘special reason’ the court can not order for
the levy of money under Section 421 of CrPC when the offender already had
undergone imprisonment for non-payment.
Conviction for Doubtful Offences
As per Section 72 of the IPC, when there is doubt regarding which offence has been
committed by the offender and there is a problem to get evidence for the offences
committed by the offender, in such circumstances the court can give the lowest
punishment if the same punishment provided for
all.
SOLITARY CONFINEMENT
Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The Code gives the
description of the way punishment to be ordered by the Court. While giving solitary
confinement the court shall keep in mind not to exceed three months in total. The
scale is as follows:
• If the term does nota exceeds more than six months-> Solitary Confinement not
exceeding one month;
• If the term exceeds more than six months but not exceed one year-> Solitary
Confinement not exceeding two months;
• If the term exceeds one year-> Solitary Confinement not exceeding three months.
Section 74 of the IPC gives the limit of Solitary Confinement while executing the
Solitary Confinement the duration shall not exceed fourteen days.
And further, if the solitary confinement given is three months, then confinement shall
not exceed 7 days in one month.
Scope of the Sections Providing Solitary Confinement
In the case of Sunil Batra vs Delhi Administration And Ors. the court observed
that the Solitary Confinement should not be ordered unless it is deemed to be required
as per the offence committed by the
offender. The offence shall be extreme violence or the commission of the offence shall
be brutally committed by the offender. However, the court felt that Solitary
Confinement inhumane and horrendous.
In the case of Smt. Triveniben & Ors vs State Of Gujarat & Ors, the court had a
similar view and held that under Section 30(2) of the Prisons Act, the jail authorities
do not have right to Solitary Confinement the prisoner who is under sentence of death.
Enhanced Punishment
Scope of Section 75
Under Section 75 of the Code when a person is convicted for the second time of an
offence which
is punishable under Chapter XII (Offences Relating to Coin and Government Stamps)
or Chapter XVII (Offences Against Property), if sentenced for more than three years
imprisonment, they are liable to a greatly enhanced sentence.
However, even when it seems like under Section 348 of the Cr.P.C. the magistrate is
competent, the magistrate is not competent to award sentence under this provision
when viewed with the amendment in Section 30 of Cr.P.C. wherein the Session Judge
has the power to adjudicate such matters.
Even though Section 75 makes certain classes of cases liable to be enhanced, it is not
obligatory to the Court to do so while sentencing generally this provision is used to
give a deterrent
effect. Further, it needs to be noted that the previous convictions for the attempt to
commit an offence not covered under the ambit of this section.
Compensation to Victims of Crime
The purpose of the criminal justice system is to protect the rights of the individuals
and give punishment to the offenders. In such cases, the accused is caught and he is
punished.
However, an essential part is left over i.e. the ‘victim’. Earlier no one used to consider
the losses of the victim.
Thereby compensation is the method to provide justice to the victim.
Compensation to Victims of Crime with Fine
The IPC provided various provisions under which a fine is given as a mode of
punishment.
However, the fine sometimes is not sufficient enough to realise the actual loss of the
victim. And the amount
prescribed under IPC is minimal which need to be amended as per the current
requirements.
Compensation to Victims of Crime from Victim Compensation Scheme
In 2009, the Central Government ordered the State to prepare a scheme for the
compensation of victims. The main objective of the scheme was to support the
dependents of the victims who suffered the loss or injury due to offence. Under this
scheme, rehabilitation can also be made.
Compensation to Victims of Crime from Wages of Prisoners
Under this, from the wages of the prisoners, a certain percentage of money is deducted
and the saved money is converted into a fund for the welfare of the victims. However,
recently a PIL was filed in the High Court of Delhi wherein the deduction of the wage of
the Prisoners was considered to be arbitrary in nature and asked for repealing such
provisions. Another interesting fact is as per the records of 2006 around Rs.15 crore
was collected out of which only Rs.14 Crore is lying unutilised. However, the Delhi
High Court held that deduction in prison wages not wrong if allowed under the law.
PROPOSALS FOR REFORM
The proposals for reform in sentencing can be as follows:
• Reclassification of criminal offences: There is a huge increase in the types of
offences, therefore to classify offences into different classes or separating them into
different codes will make the Code more understandable and lucid. Further under the
different codes the procedure and nature of the trial can also be explained.
• The punishments need to be deterrent at the same time it shall not be severe.
Therefore, it is time for Indian Judiciary to have a sentencing policy, so there is no
space for ambiguity and bias of the Judge which creates a barrier while sentencing.
And this step will also reduce the appeals for enhancing or reducing punishment
which will be a great
relief for the judiciary.
• A proper victim compensation fund can be created under the Code, wherein the
confiscated assets from organised crime can also be included.