Section 302 of Indian Penal Code, 1860

Detailed Presentation on Section 302 of Indian Penal Code, 1860

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Edited By: Ayush Patria, Sangam University, Bhilwara

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1. INDIAN PENAL CODE’s SECTION 302 PUNISHMENT FOR MURDER

2. SECTION 302 Section 302 states that, “Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine”. Punishment for murder is : Life imprisonment, or Death; and Fine, if court deem necessary ,in addition to both the above punishment.

3. Murder is defined under section 300 of the Indian Penal Code, 1860. The section enumerates four points under which if the act by which the death is caused falls it will constitute murder that are :      1.  Mens rea      2. Actus Reus 3. Concurrence 4. Causation

4. MURDER Under section 300 , Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or If it is done with the intention of causing such bodily injury as

5. the offender knows to be likely to cause the death of the person to whom the harm is caused, or If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or If the person committing the act knows that it is so imminently

6. dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury aforesaid. Murder is; Cognizable Non-bailable 3. Trial by session court

7. EXCEPTION UNDER SECTION 300 Section 300 also provides exceptions to situations where the culpable homicide is not considered as the murder. They are as follow : 1. Act is due to grave and sudden provocation 2. Act done public servant who is authorized to do the act in order to

8. promote public justice; 3. Act is done for defending himself; 4. Act is done with the consent of the victim; 5. When the act is a result of a sudden fight.

9. JUDGEMENTS Hardyal and Prem  vs. State of Rajasthan [ (1991) Cr LJ 345 (SC)] , In case where facts and circumstances from which conclusion of guilt was sought to be drawn by prosecution was not established beyond reasonable doubt the conviction under section302 read with section 34 and under section 392 had to be quashed.

10. Ashok Kumar vs. State of Rajasthan [ (1991) 1 Crimes 116 (SC) ] , In dowry deaths, motive for murder exists and what is required of Courts is to examine as to who translated it into action as motive viz., whether individual or family.

11. Wazir Singh vs. State of Haryana [AIE 1992 SC 1429] , Fatal injury caused by the accused in broad day light, evidence of the eye witness and medical evidence being corroborative, conviction under section 302, held, sustainable.

12. BACKGROUND The Code of Criminal Procedure 1898 under section 367(5) stated, death as an punishment for the offence of murder and if any other punishment is to be awarded ,then judge has to give reason in writing .

13. In the case of  Dalip Singh v. the State of Punjab [AIR 1977 PH 109] Supreme Court held that “in a case of murder, the death sentence should ordinarily be imposed unless the trying judge, for reasons which should normally be recorded, considers it proper to award the lesser penalty

14. The Amendment Act 28 of 1955, removed the above provision and court got power to give death or life imprisonment as a punishment for murder .

15. The old code of Cr. P.C. was repealed in 1973 and a new code was enacted. Section 354(3) of this Code of Criminal Procedure, 1973 states that “the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence”.

16. CHOICE OF SENTENCE Section 302 does not specify in which case life imprisonment or death is to be given as punishment . Mode of punishment can be decided after proper investigation and when crime is proved beyond reasonable doubt . In the  STATE OF MADHYA PRADESH VS. BABLU NATT case, it was said that the choice of sentences depends on the facts and circumstances of case.

17. DISCRETION OF JUDGE The bench has discretion to award life imprisonment or death penalty as a punishment for murder Section 352 (3) provides for statement of reason for death penalty is to check upon the rationale behind giving the particular punishment.

18. Section 374 of the Cr.P.C . ― when the Court of Session [trial court] passes sentences of death, the proceedings shall be submitted to the HCD and the sentence shall not be executed unless it is confirmed by the High court division.

19. Following mitigating factors are considered before pronouncing death sentence: Age Previous crime record Mental an physical health Long stay in condemned cell, etc.

20. DEATH SENTENCE Death penalty is given only in rarest of rare cases , court adopts a liberal and expansive view when dealing with the dilemna of choosing death penalty as punishment. In B achan S ingh’s case [ (1980) (2 SCC 687) ], appellant has killed three children and supreme court upheld the decision of death sentence given by lower court .

21. Few illustration of Rarest of rare case can be as follow : 1. Murder was done in brutal, grosque manner 2. It shocks the concise of community 3. Committed for motive which evinces total depravity and meanness. 4. Victim is innocent chid , helpless women 5. Murder of minority community which arouses social wrath like dowry death.

22. DEATH SENTENCE : VIOLATIVE OF RIGHTS In Jagmohan S ingh vs. state of up [AIR 1973 SC 947] , death penalty was challenged on the ground of being violative of article 14, 19 and 20. But it was held completely constitutional . In Bachhan Singh vs. State of Punjab [ (1980) (2 SCC 687 ] , Supreme C ourt held it constitutional. It was observed that the

23. provision of death penalty as an alternative punishment for murder in section 302 is not unreasonable and it is in the public interest. Therefore, section 302 does not have to stand the test of Article 19 (1) of the Constitution

24. Inclusion of entries 1 and 2 in the Concurrent List specifically referring to the Indian Penal Code and the Code of Criminal Procedure, which show that the Constitution makers were fully congnizant of the existence of death penalty. In Deena alias Deen Dayal vs. State [(1983)4 SCC 645] , the Supreme Court reiterated that execution of death sentence by

25. hanging as provided by section 354 (5), Code of Criminal Procedure, 1973 does not violate Article 21 of the Constitution as the system of hanging is as painless as possible in the circumstances and causes no greater. In Shashi Nayar vs. Union of India [ (1991) 275 SC] , the Supreme Court observed that the procedure provided by the law

26. for awarding death sentence is reasonable as It provides for death penalty as an alternative punishment which is completely valid. The Law Commission had opined in 1967 that the country should not take the risk of abolishing the death sentence.

27. INTERNATIONAL CONVENTION FOR CIVIL AND POLITICAL RIGHTS Article 6 of the International Covenant on Civil and Political Rights to which India acceded in 1979 requires that death penalty shall not be arbitrarily inflicted and it shall be imposed only for most serious crimes in accordance with a law which shall not be an ex post facto legislation.

28. These requirements are similar to the guarantees provided by Articles 20 and 21 of the Constitution of India. Section 352 (3) provides for statement of reason to be given in writing by a judge for death penalty, and Section 235 (2) IPC , provides for hearing of accused for sentence are proof of I ndian legislative being cautious of inflicting death penalty on anyone and protecting their rights.

29. DELAY IN EXECUTION OF DEATH SENTENCE Delay in execution of death sentence is violative of article 21 of the Indian constitution . In the case of T riveniben vs. state of Gujarat [AIR 1989 SC 142] , the honourable supreme court held that only executive delay can be considered violative of Article 21 of the Indian constitution .

30. In the case of T.V. Vaitheeswaran vs. State of T amil N adu [ (1983) 2SCC 68 ] , the Court held that a delay in the execution of the sentence that exceeded two years would be a violation of procedure guaranteed by Article 21.

31. In the case of Sher singh vs. state of Punjab, the court held that execution of delay can be violative of article 21 but ant be used as an ground for quashing of execution the death sentence .

32. CONVICTION OF PREGNANT WOMEN Section 412 Cr. P.C. provide for postponement of conviction of pregnant women. According to this section , high court is empowered to : Postponement of conviction of a pregnant women ,or Reduce it to life imprisonment

33. Reason: The main aim of this section is to protect the innocent child. He/she should not be killed/suffer because of their mother’s criminal act.

34. CONVICTION OF MINOR In Narayan Chetanram Chaudhary vs. State of M aharashtra , supreme court held that capital punishment can never be imposed in a juvenile. After the heinous D elhi gang rape case, juvenile age for heinous crimes like rape was reduced from 18 to 16. In this case, One of the accused was minor ,who got three year of imprisonment only. This has raised a lot of controversy and discussion on the mode of punishment for heinous crime committed by the minor .

35. LIFE IMPRISONMENT There are three types of imprisonment - Solitary Rigorous Simple

36. According to section 53 IPC, there can be cases where life imprisonment is an acceptable form of permission . According to section 55 IPC, the term for imprisonment can’t be less than 14 years. Even after the completion of fourteen year, government approval is required to remit his sentence and release.

37. PUNISHMENT FOR A LIFE CONVICT According to section 303 of the Indian Penal Code ,any person who is sentenced with life imprisonment commits murder, shall be punished to death. In Mithu S ingh vs. State of Punjab [AIR 1983 SCC 473] , section 303 was challenged as unreasonable, arbitrary and no intelligible

38. differentia for prescribing a mandatory death sentence. Therefore, the supreme court held section 303 as unconstitutional and void. Thus, if a life convict commits murder his punishment will be decided as per the law and facts, circumstances of his case and no mandatory death sentence shall be provided.

39. EXECUTION OF INSANE PERSON In the case of Amrit Bhushan Gupta vs. Union of India [(1977) 1 SCC 180]. Facts: the appellant has murdered three innocent children and burnt them. He had also killed the father of those three children after a year, subsequently, he was given death penalty. He filed

40. n umerous writ petition and special leave petition in supreme court and mercy petition to the president. Held: The Supreme Court, while rejecting the contention of the appellant petitioner that anyone becoming insane after his conviction and sentence could not be executed until he regained sanity, with respect, rather strangely uphold his sentence and

41. observed that he has become threat to society and might commit similar crimes again.

42. IMPOSITION OF FINE Section 302 provides for imposition of fine in addition to life imprisonment or death sentence. Imposition of fine highly depends on facts and circumstances of the case. Most of the times impositions of fine is set aside, or reduced, or in a large number of cases, it is directed to be paid to the next of kin of the victim, more as a relief from economic hardship than being compensatory in nature.

43. CONCLUSION Section 302 is an important section of IPC, providing for punishment of crime like murder but it provides for alternative mode of punishments i.e. life imprisonment or death penalty. There is no uniform guideline to choose mode of punishment.

44. Indian judiciary follows the rule of rarest of rare doctrine to impose capital punishment. Reformative theory of punishment is followed in India. Thus, courts have been very careful while inflicting death penalty on any criminal.