Ediga Anamma, Appellant V. State Of Andhra Pradesh, Respondent.
DATE OF DECISION: 11-02-1974
CITATION(S) : 1974-(080)-CRLJ -0683 -SC
Guilt once established, the punitive dilemma begins. The choice between death penalty and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision not adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence. However, in the Criminal Procedure Code, 1973, about to come into force, Parliament has wisely written into the law a post-conviction stage when the Judges shall “hear the accused on the question of sentence and then pass sentence on him according to law.” (Section 235 and Section 248).
The Apex Court held that “The case in hand has to be disposed of under present Code and we have to fall back upon the method of judicial hunch in imposing or avoiding capital sentence, aided by such circumstances as are present on the record introduced for the purpose of proving guilt. We are aware that in Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 = (AIR 1973 SC 947 = 1973 Cri LJ 370), there was an argument about the absence of procedure laid down by the law for determining whether the sentence of death or something less is appropriate in the case. The Court viewed this criticism from the constitutional angle and observed :
“The Court is primarily concerned with all the facts and circumstances in so far as they are relevant to the crime and how it was committed and since at the end of the trial he is liable to be sentenced, all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Apart from the cross-examination of the witnesses, the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material facts. Again he and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence. In important cases like murder the court always gives a chance to the accused to address the court on the question of sentence.”
“The sentence follows the conviction, and it is true that no formal procedure for producing evidence with reference to the sentence is specifically provided. The reason is that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the Court.”
In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined.
The prisoner is a young woman of 24 flogged out of her husband’s house by the father-in-law, living with her parents with her only child, sex-starved and single. The ethos of the rural area where the episode occurred does not appear to have been too strict on inhibitive in matters of sex, for the deceased and the accused were both married and still philandered out of wedlock with P.W. 16, a middle-aged widower who made no bones about playing the free-lance romancer simultaneously with them. Therefore, the accused incautiously slipped down into the sex net spread by P.W. 16, and while entangled and infatuated, discovered in the deceased a nascent rival, with the reckless passion of a jealous mistress she planned to liquidate her competitor and crudely performed the double murder, most foul. Perhaps it may be a feeble extenuation to remember that the accused is a young woman who attended routinely to the chores of domestic drudgery and allowed her flesh to assert itself salaciously when invited by uncensured opportunity for lonely meetings with P.W. 16. It may also be worth mentioning that, apart from her youth and womanhood, she has a young boy to look after. What may perhaps be an extrinsic factor but recognised by the court as of human significance in the sentencing context is the brooding horror of hanging which has been haunting the prisoner in her condemned cell for over two years. The Sessions Judge pronounced the death, penalty on December 31, 1971, and we are now is February 1974. This prolonged agony has ameliorative impact according to the rulings of this Court. The leading case in Piare Dusadh v. Emperor, AIR 1944 FC 1 = (45 Cri LJ 413) was relied upon by this Court in N. Sreeramulu v. State of Andhra Pradesh, 1973 Cri LJ 1775 = (AIR 1973 SC 2551). The following passage from the Federal Court decision is telling :
“In committing the offence the appellant must have actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death.”
The decision in State of Bihar v. Pashupati Singh, AIR 1973 SC 2699 = (1973 Cri LJ 1832) strikes a similar note. Although this consideration is vulnerable to the criticism made by counsel for the State that as between two capital sentence cases that which is delayed in its ultimate disposal by the courts receives the less terrible punishment while the other heard with quick despatch, for that very reason, fails to relieve the victim from condemnation to death.
In this unclear situation it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being left to ad hoc forensic impressionism to decide for life or for death. Even so, such sentencing materials as we have been able to salvage from the guilt material in the paper book persuades us to award life imprisonment to the prisoner and modify to that extent the death sentence imposed by the courts below.
It behaves us to indicate why we have chosen this course. In the twilight of law in this area, we have been influenced by the seminal trends present in the current sociological thinking and penal strategy in regard to murder. We have also given thought to the legal changes wrought into the penal code in free India. We confess to the impact made on us by legislative and judicial approaches made in other countries although we have warned ourselves against transplanting into our country concepts and experiences valid in the west.
It cannot be emphasized too often that crime and punishment are functionally related to the society in which they occur, and Indian conditions and stages of progress must dominate the exercise of judicial discretion in this case.
In India the subject of capital punishment has abortively come before Parliament earlier, although our social scientists have not made any sociological or statistical study in depth yet. On the statutory side there has been a significant change since India became free. Under Section 367(5) of the Criminal Procedure Code, as it stood before its amendment by Act 26 of 1955, the normal rule was to sentence to death a person convicted for murder and to impose the lesser sentence for reasons to be recorded in writing. By amendment, this provision was deleted with the result that the court is now free to award either death sentence or life imprisonment, unlike formerly when death was the rule and life term the exception, for recorded reasons. In the new Criminal Procedure Code, 1973 a great change has overtaken the law. Section 354(3) reads :
“354(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated. In this context it may not be out of place to indicate – not that it is conclusive since it is now tentative – that under the Indian Penal Code (Amendment) Bill, 1972, Section 302 of the Penal Code has been substituted by a less harsh provision limiting death penalty to a few special cases (vide Section 122 of the new bill).
It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautions, partial abolition and a retreat from total retention.
Jagmohan Singh (1973) 1 SCC 20 = (AIR 1973 SC 947 = 1973 Cri LJ 370) has adjudged capital sentence constitutional and whatever our view of the social invalidity of the death penalty, personal predilections must bow to the law as by this Court declared, adopting the noble words of Justice Stanley Mosk of California uttered in a death sentence case : “As a Judge, I am bound to the law as I find it to be and not as I fervently wish it to be”. (The Yale Law Journal, Vol. 82, No. 6, p. 1138). Even so, when a wise discretion vests in the Court, what are the guidelines in this life and death choice ? The humanism of our Constitution, echoing the concern of the Universal Declaration of Human Rights, is deeply concerned about the worth of the human person. Ignoring the constitutional content of Anderson, 100 California Reporter 152 and Furman, (1972) 408 US 238 the humanist thrust of the judicial vote against cruel or unusual punishment cannot be lost on the Indian judiciary. The deterrence strategists argue that social defence is served only by its retention, – Thanks to the strong association between murder and capital punishment in the public imagination. – while the correctional therapists urge the reform of even murderers and not to extinguish them by execution. History hopefully reflects the march of civilization from terrorism to humanism and the geography of death penalty depicts retreat from country after country. The U.K. and the U.S.A. are notable instances. Among the socialist nations it has been restricted to very aggravated forms of murder. The lex talionis principle of life for life services in some States still, only to highlight that in punitive practice, as in other matters, we do not live in ‘one world’, but do move zigzag forward to the view that the uniquely deterrent effect of death penalty is, in part, challenged by jurists, commissions and statistics. But as a counterweight we have what an outstanding justice of the Ontario appeal court said some years ago (Capital Punishment – Thorsten Sellin p. 83) :
“The irrevocable character of the death penalty is a reason why all possible measures should be taken against injustice – not for its abolition. Nowadays, with the advent of armed criminals and the substantial increases in armed robberies, criminals of long standing if arrested, must except long sentences. However, if they run no risk of hanging, when found guilty of murder, they will kill policeman and witnesses with the prospect of a future no more unhappy, as one of them put it, than being fed, lodged, and clothed for the rest of their lives.”
The final position, as we see it, is neither with the absolute abolitionist not with the Mosaic retributionist. It is relativist, and humanist, conditioned by the sense of justice and prevailing situation of the given society. In England, men once believed it to be just that a thief should lose, his life (as some Arab Chieftains do today) but the British have gone abolitionist now without regrets. In contemporary Indian, the via media of legal deprivation of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws.
While deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime, to espouse a monolithic theory of its deterrent efficacy is unscientific and so we think it right to shift the emphasis, to accept composite factors of penal strategy and not to put all the punitive eggs in the ‘hanging’ basket but hopefully to try the humane mix.
We assume that a better world is one without legal knifing of life, given propitious social changes. Even so, to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values, socio-economic conditions and legislative judgment have a role. Judicial activism can only be a signpose, a weather-vane no more. We think the penal direction in this jurisprudential journey points to life prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangman’s rope. “Thou shalt not kill’ is a slow commandment in law as in life, addressed to citizens as well as to States, in peace as in war. We make this survey to justify our general preference where Sec. 302 keeps two options open and the question is of great moment.
Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 read with Section 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectively to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life.
Here, the criminal’s social and personal factors are less harsh, her femininity and youth, her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy – these individually inconclusive and cumulatively marginal facts and circumstances – tend towards award of life imprisonment. We realise the speculative nature of the correlation between crime and punishment in this case, as in many others, and conscious of fallibility dilute the death penalty. The larger thought that quick punishment, though only a life term, is more deterrent than leisurely judicial death award with liberal interposition of executive clemency, and that stricter checking on illicit weapons by the police deters better as social defence against murderous violence than a distant death sentence, is not an extraneous component in a court verdict on form of punishment.
We have indicated enough to hold that, marginal vaccilation notwithstanding, the death sentence must be dissolved and life sentence substituted. To this extent the appeal is allowed, but otherwise the conviction is confirmed.
Ediga Anamma, Appellant V. State Of Andhra Pradesh, Respondent.