Introduction
Public outcry for imposing death penalty in every case of murder, such as Sharon Raj murder case, is quite common nowadays.
But the law says that the death penalty should be imposes only in the rarest of rare cases of exceptional nature.
Punishment for murder under IPC / BNS
Murder, the gravest offence in India, shall be punished with either death, or imprisonment for life, and shall also be liable to fine, under Section 302 of the Indian Penal Code (IPC) or Section 101 of the Bhartiya Nyaya Sanhita (BNS).
The trial court can award either of the two punishments, depending on the gravity and other mitigating factors relating to the offence.
Bachan Sigh case prescribes the rarest of rare doctrine
The Supreme Court (SC), in Bachan Singh v State of Punjab [AIR 1980 SC 898], held that, the provision of death penalty as an alternative punishment for murder under section 302 of IPC is not unreasonable and is in the public interest.
In the case, the SC laid down the following propositions to be considered while granting death penalty: —
- Death penalty need not be inflicted except in the gravest cases of extreme culpability.
- Before opting for the death penalty, the circumstances of the offender need to be considered along with the circumstances of the crime.
- Life imprisonment is the rule but death sentence is the exception. That means, death sentence should be imposed only when life imprisonment appears to be an inadequate punishment in the circumstances of the crime and in the light of all other relevant considerations.
- A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be given full weightage and a just balance struck between the aggravating and the mitigating circumstances before the option is exercised.
The judge should record specific reasons, as prescribed under Section 354(3) of the IPC for imposing the death penalty after making careful consideration of all relevant factors, so as to prevent capricious or arbitrary imposition of the death sentence.
Examine aggravating and mitigating circumstances
To award death for the offence of murder, the aggravating circumstances have to be fully satisfied and there should be no mitigating circumstances that exist in favour of the accused.
The prosecution normally offers evidence of aggravating factors that would merit a harsh sentence during trial. A common aggravating factor is a prior record of similar convictions. The court may impose a harsher sentence if the victim is found to be vulnerable.
The defence would provide mitigating factors that would support leniency in sentencing. Mitigating factors that demand a lenient sentencing are lack of a prior criminal record, minor role in the offence, culpability of the victim, past circumstances that resulted in criminal activity, circumstances at the time of the offence, such as provocation, stress, or emotional problems, mental or physical illness, genuine remorse etc.
In addition to both the tests, the court must finally apply the Rarest of Rare test and conclude whether there is something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence.
Murder is the gravest crime demanding highest punishment
Murder is the gravest form of culpable Homicide (punishable killing). It is the most serious crime having the highest punishment in the IPC or BNS.
Murder is an act of a person who is causing death of another person. A crime has four elements: an offender, mens rea (guilty mind), actus reus (guilty act) and the victim.
The courts would find it difficult to differentiate a case of Murder from a case of Culpable Homicide not amounting to Murder because the descriptions in both the cases are provided by using similar words or phrases.
Murder comes under Section 300 IPC
The Section 300 of the IPC states what murder is and what murder is not. To consider an act of a person as an offence of murder, it should come within the clauses 1, 2, 3 or 4 of the Section 300 of the IPC, but should not fall within any of the five Exceptions enlisted in the Section. Then it should be punished under Section 302 IPC.
If it falls within any of the Exceptions then it will become Culpable Homicide not amounting to Murder as defined under Section 299 IPC and will get a punishment for Culpable Homicide under Section 304 IPC.
The courts have to apply the provisions to the facts of the case in hand and find out whether the causing of death comes under murder or not, by applying the four clauses coming under the Section 300 of the IPC.
Ingredients of Murder
An act becomes murder, as provided under Section 300 IPC, when he does it for causing death of a human being with the intention of causing
- Death
- Bodily injury which the offender knows to be likely to cause death
- Bodily injury ordinarily sufficient to cause death
The act would also become murder when he does it for causing death with the knowledge that the act is imminently dangerous and it must in all probability cause death. That means, if a person does an act with the intention of causing death, it is murder.
A person can cause the death of another by endless variety of acts such as poisoning, striking, drowning, firing etc. If a person shoots another with the intention of killing him and he dies, then he is committing the offence of murder. If the death is caused without requisite intention to kill or knowledge of likelihood of causing death on his part, the offence committed would be hurt or its equivalent but not Murder. Absence or presence of intention is a determinant factor.
If he does the act with the knowledge that the act would likely to cause death because of some peculiar condition or state of poor health known to the offender then the act is obviously murder. Such an act need not cause death to a person who is not having such a peculiar condition, in the ordinary course of event.
Here intention to cause death is not an essential requirement but intention of causing bodily injury itself coupled with the knowledge that the injury is likely to cause death, is enough. For example, the offender causes a blow on the spleen of a person clearly knowing that the spleen is weak and if that blow in turn causes death, it becomes a case of murder. If he had absolutely no knowledge of the weak condition of the spleen such a blow, even if it causes death, should not come under murder.
Probability of death is a crucial factor in murder
If the person causes bodily injury ordinarily sufficient to cause death and it ends up in death, it is murder. A person intentionally gives a sword cut to cause the death of a person in the ordinary course of event then he is committing murder. If a person fires a loaded gun into the crowd without any excuse and kills a person then he is committing murder. Here the degree of probability in causing death is quite high. For such a bodily injury death will be the most probable result in normal course. Here in this case, the offender does not need to have intention to cause death but bodily injury that in all probability ends up in death will make the act a case of murder.
If the person does an act with the knowledge that the act is so imminently dangerous which in all probability will cause death, then that is murder. This will also apply to totally reckless and negligent actions having no intention to cause any specific injury: eg rash driving.
Exceptions lower a murderous act into Culpable Homicide
Some murders are not treated as murders if they come within the five exceptions described under Section 300.
So the Section 300 covers both “Culpable Homicide amounting to Murder’ and ‘Culpable Homicide not amounting to Murder’.
Distinguishing Murder from Culpable Homicide
To find out whether a homicide is murder or not, the court must first determine whether the accused has done an act (omission / negligence) by which he caused death of another.
In the second stage, the court should consider whether the act amounts to culpable Homicide under Section 299 IPC to find out whether it is a case of Culpable Homicide not amounting to Murder.
If the answer is yes, the court should consider whether the act of the accused come within the ambit of any of the four clauses of Section 300 IPC.
If the act falls within any of the four clauses, then the court should check whether the case comes within any of the five Exceptions described in the Section 300 IPC. If it comes then the offence would still be Culpable Homicide but not Murder punishable under Section 304 Para I.
If the case fits well within the four clauses in regard to intention to kill, knowledge of possibility of death and definitiveness of death, it is a clear case of murder.
Death penalty should be given in exceptional cases
In short, the punishment of death penalty should be imposed only in the rarest of rare cases of exceptional nature.