CONCEPT OF CRIME

UNIVERSAL CHARACTER OF CRIME

The concept of crime is essentially concerned with the conduct of individuals in society. It is as eternal as society and everywhere some human being have fallen outside the pattern of permitted crime. It is best to accept the fact that crime cannot be abolished except in non-existent utopia. Weakness, anger, greed, jealousy, some from the human aberration has come to the surface everywhere and human sanctions have vainly beaten against the irrational, the misguided impulsive and ill conditioned, A code of legal conduct is prescribed by the legislature in order to protect life and property and preservation of human tranquility. Some violations of law are bowed to occur by the members of society. The crime is inevitable and universal phenomenon. According to Durkheirn: There is no society that is not confronted with the problem of criminality. Its form changes the acts thus characterized are not the same everywhere but everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression ------- no doubt it is possible that crime itself will have abnormal forms as e.g. when its rate is unusually high this excess is indeed undoubtedly, morbid in nature. What is normal, simply is the existence of criminality, provided that it attains and does not exceed for each social type, a certain level ------- to classify crime among the phenomenon of normal sociology is not say merely that it is inevitable although

regrettable phenomenon, due to incorrigible wickedness of men, it is to affirm that it is factor in public health, an integral of all healthy societies.1 The reality of our brave new world cannot be ignored, where opportunities for crime abound and impunity is assured at a time when humanity, having lost its moorings, is still grouping for new methods of social control. Even a society, according to Durkheim possessing angelic qualities would not be free from some violation of the norms of that society which may be made unconsciously or consciously. S.Venugopai Rao, former Director of the Institute of Criminology and Forensic Science, gave a similar view when he says, when it is difficult to define crime or explain it coherently, it is equally difficult to find ways and mean of controlling it when criminologists make revolutionary suggestions to eliminate the prisons and reorient the concept of punishment, they are nearly expressing their continuous search of the ideal.2

CONCEPT OF CRIME
Concept:- Crime has been with us in varying degrees since time immemorial. It is a legal concept and has a sanction of law and is also known as a living concept. The changing concept of crime is dependent upon the social evolution of the human beings all ones in the world. What is a crime in one country may not be a crime in another. The microbe of crime seems to flourish as much as in the culture medium of poverty as of prosperity and also in all parts of our planet.

Sir Leon Radzinowicz, Director of Institute of Criminology, Cambridge observed No national characteristics, on political regime, no system of social welfare or criminal law of police or justice, of punishment or treatment has made any country exempt from crime in the modem world and scarcely any can claim to have saved its relentless increase.3

DEFINITION OF CRIME
Crime is a legal concept and has a sanction of law can not be disputed in a democratic society. Many attempts have been made to define crime, but it is not possible to discover the most scientific definition of crime. Many attempts have been made by Rossi, Kenny, Russel, Blackstone, Ramangnosi and several others, as: According to the old Utilitarian School the crime was an act which it is deemed necessary to forbid because of the harm which it produces or tends to produce or merely an act forbidden by law, or else some act which is detrimental to the public good or merely, an act forbidden by law. Sir William Blackstone 6 attempted to define at two different places in his work. At one place, he says that crime is an act committed in violation of public law forbidding or commanding it, The Public Law has several accepted meanings. Austin takes public law as identical with Constitutional Law. In this sense, definition covers only political offences, which are only a small portion of the whole field of crime, If we were to follow Austin and interpret the definition given by Blackstone as

violation of Constitutional Law,7 i.e. Guarantee of ones life, liberty and property, the definition of crime would remain too narrow. The Germans on the other hand, interpret, Public Law to mean both constitutional and criminal law. In this sense definition given by Blackstone ceases to define because, we shall be using criminal law in defining a crime. Others take positive law or municipal law, which would mean all laws made by the state. In this sense, definition given by Blackstone becomes too wide; crime would include every legal wrong or violation of law. So, definition given by Biackstone is not satisfactory. In second definition, Blackstone defines a crime as, A violation of the public rights and duties due to the whole community considered as community.8 This definition is slightly altered by learned editor of Blackstone, Sergeant Stephen, who expressed it thus, A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large. It introduces a new error, namely, it limits to violation of rights only, whereas Blackstone applied it to violation of both right and duty. Ramangnosi, a distinguished Italian writer stated that crime is the voluntary act of a person of sound mind, harmful to other and the same time unjust. Similarly Rossi, the founder of modern French school maintains that, the only thing which the social power can regard as crime is the violation of such

duties towards society and individuals as contribute to the maintenance of the social order and are capable of absolute legal enforcement.9 According to a standard French work on criminal law, every disturbance inflicted upon the social order is a moral crime, since such disturbance is the violation of a duty that of man to society. Hence, the acts with which primitive justice has to deal with are of two kinds; firstly, those which bear the imprint of an intrinsic immorality, and; secondly, those which are intrinsically free from immorality, but assume an immoral character because involving a breach of duty. In two cases social crime exists.10 Tappans definition of crime as an international act or omission in violation of criminal law needs explanation. The intention can be said to be guilty when a man desires to bring about an act which the society or state feels to be destructive of its own interest or to be dangerous for its stability, safety and comfort or to be harmful to its members and which is considered to be breach of duty to the public as a whole for which the offender is punished by the society or the state. So, it cannot be said that, mens rea or a guilty intention means knowledge, on the part of the accused that he is breaking law. It is clear from the definition that intention is an essential ingredient of a crime. The intention is to be gathered from all the circumstances appearing in the evidence. The intention is to be inferred from motive of the accused, the nature of the instrument of attack, the time and place of attack, the position and condition of the victim, number of injuries inflicted, the force used, previous enmity, relationship of the accused with

the victim, premeditation, nature of attack, opportunity to inflict injuries and opportunity to aim a particular blow act.11 Roman jurists called crimes Delicta Publica and the criminal trials Judicia Publica. Some jurists define crime according to the interference by the state in such acts. In civil acts the State does not interfere until actual wrong has been committed. In criminal matters the state maintains an elaborate police staff to prevent offences and if one is committed an action may be instituted by the state without the co operation of the party injured. To define crime in this way is only to bring out the contract between civil and criminal wrongs, which can not be the basis of a definition for two reasons; first, because civil proceedings are often taken to obtain injunction against some anticipated wrong which has not yet been committed while criminal acts are so trivial that the police do not interfere before hand to prevent; second, there are some crimes for which a prosecution can not be initiated by any private person without permission from the state, for example, printing or publishing, demoralizing indecent details of judicial proceedings. According to Austin crime is 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.12 The definition is not of substance but of procedure only. Moreover, under Indian Penal Code, 1860, there are several offences, which cannot be pursued except by the injured party.

Professor Kenny modified Austins definition and defines crime to be, Wrongs whose sanctions is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all.13 Professor Winfield points out that the word Sanction used in the definition must mean Punishment and the word Remissible must refer to Pardon by the Crown and observes that it is on the word Remissible that the definition breaks down, for the only way by which the crown can remit a punishment as by pardon. Under the English Common Law, crimes, which are pardonable, are only those, which are against the public laws and statutes of the realm. The definition falls when it is applied to our own law because there are many offenses under Indian Penal Code 1860 which are compoundable without even the intervention of the court, where the punishment can be remitted by the private individuals. Therefore, this definition of Kenny also breaks down. In recent edition of Kenny, Mr. J.W.Cecil has given the following description of a crime, It is broadly accurate description to say that nearly every instance of crime presents all the three following characteristics: (i) That it is harm, brought about by human conduct, which the sovereign power in state desired to prevent. (ii) That among the measure of prevention selected is the threat of punishment.

(iii)

That legal proceedings of a special kind are employed to decide whether the person accused did, in fact cause the harm and is according to the law to be held legally punishable for doing so. In British India, where the whole criminal law is codified, crime

means an act punishable by the Indian Penal Code, 1860 or other penal statutes. Miller defines crime, Crime be the commission or omission of an act which the law forbids or commands under the pain of punishment to be imposed by the state by a proceeding in its own name. Similarly Professor Keeton says, A crime today would seem to be undesirable act which the state funds it most convenient to correct by the institution of proceedings for the infliction of penalty, instead of leaving the remedy to the discretion of some injured person. In fact there is no satisfactory definition of crime which will embrace the many acts and omissions which are criminal and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong which effects the security, well being of the public generally so that the public has an interest in its suppression. A crime is frequently a moral in that it amounts to conduct which is inimical to the general moral source of the community.14 Sir, Walter Scout says, Treason arises from mistaken virtue, and therefore, however, highly criminal cannot be considered disgraceful. A view, which has been, required legislative approval. Again mere omission to keep

highway in repair shocks no body, yet it is a crime. On the other hand many grossly cruel and fraudulent breaches of trust are merely civil wrongs e.g. A man who stands by the river and watches a child drowning. He is a known swimmer, but does not plunge into river to save the child, He may be guilty of committing a grossly wicked, immoral act which may arouse universal indignation but he will not be guilty of committing a crime not even a civil wrong.15 Under section 40 of the Indian Penal Code, 1860, the word, offence denoted a thing made punishable by the Code. According to Professor Goodhart, Crime is a serious anti social action to which the state reacts consciously by inflicting pain. Russel says, Crime is the result of human conduct which the penal policy of the state seek to prevent. Dr. Wechler has said thus, The purposes of criminal law are to express a social condemnation of forbidden conduct. Firstly, there are offences in respect of which mens rea is undoubtedly required. Secondly, there are offences which, though requiring mens rea possess a special character of their own. Thirdly, there are offences, which can with a fair measure of accuracy, be described as offences of strict liability and, Fourthly, there are acts in respect of which their moral culpability is a matter of controversy.

The traditional concept of crime is different from the new concept of social and economic crimes. The traditional concept in criminal law is that no crime can be committed without a guilty mind, while the requirement of mens rea in case of social and economic crimes may be excluded either expressly or by necessary implication. According to Durkheim, Crime is to be found in all known societies. Because of this it seems difficult to regard criminal behaviours in the general sense as being anything abnormal. According to Elener Huber Johnson, Crime is an act which the group regards as sufficiently menacing to its fundamental interests, to justify formed reaction to restrain the violation. Aristotle regarded, Crime as one of the factors of the cycle of change.18 Refeale Garofals, formulated his theory of natural crime.

MENTAL ELEMENT IN CRIME Actus non facit reum nisi mens sit rea is a well maxim of English Criminal Law, which means that act itself does not make a man guilty unless his intentions were so, The maxim is generally supposed to mean that there cannot be such a thing as legal guilt when there is no moral guilt. In Criminal Law, there are two essential elements necessary to constitute a crime, namely

(a) (b)

the physical element i.e. actus reus. mental element i.e. mens reus. The physical element that constitutes a crime is obvious, because it

is externally manifested by the wrongful act committed by the accused. But the wrongful act did by the accused in all cases in not punished. What is the true meaning of mens rea has exercised the minds of the jurists for a very long time. Stephen says that this expression is meaningless. Dr. Stallybrass observes: It is not easy to arrive at a true meaning of mens rea at the present day. Justice Stephen said; Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds; it naturally suggests that a part from all particular definitions of crimes, Such a thing exists as a mens rea or guilty mind, which is always expressly or by implication involved in every definition. This is obviously not the truth, for the mental elements of different crimes differ widely. Mens rea means, in the case of murder, malice aforethought; in the case of theft an intention to steal; in case of rape, an intention to have forcible convection with a woman without her consent. So, it appears confusion to call so many dissimilar states of mind by one name. It seems contradictory indeed to describe a mere absence of mind as a mens rea or guilty mind. To non-legal mind, it suggests that by the law of England no act is a crime which is done from laudable motive, in other words that immorality is essential to crime.

There can be no crime large or small without an evil mind, says Bishop, It is therefore a principle of our legal system as probably it is of every other, that the essence of an offence is a wrongful intent without which it cannot exist. The original source of this maxim, actus non facit reurn mens sit rea, According to Coke in his 3 Institute 20, where it appears in the following form, Reum Linguam Non Facit N/SI Mens Sit Rea. Cokes maxim was repeated in several English decisions. Pollock and Maitland observed: Law in its earliest days tries to make men answer for all the ills of an obvious kind that their deeds bring upon their fellows. Until 12th Century although the modem notion of mens rea was nonexistent, but criminal intent was not entirely disregarded in some offenses where it was taken into account in awarding punishment. In 13th century, Roman law and its conceptions of Dolus and Culpa influenced the English law, common law, which emphasized moral guilt, was also influencing the English Courts. In 14th & 15th centuries the notion that mens rea is necessary to constitute a crime was will established. During 16th Century, this law was settled that if there is criminal intent, which is unaccompanied by an act, it will not be punishable.

By the second half of the 17 century, it was firmly established that to constitute a crime, an evil intent was a necessary as the act itself.

EXCEPTION TO MENS REA

Professor Kenny observes that in statutory crimes it is usually not necessary to establish more than that the accused committed the act, which was forbidden by the statute under which he is charged. Such crimes, better known as crimes of strict liability, are increasing both in number and importance in modem times. He gives three kinds of cases where the legislature tends to create offences where no mens rea is to be proved, they are (a) (b) where the penalty incurred is not great. The damage caused to the public by the offence is in comparison with the penalty is very great (c) The offence is such that there would usually be peculiar difficulty in obtaining adequate evidence of mens rea, if that degree of guilt was to be required. The master servant liability may be added for the acts of his servants e.g. in nuisance and libel cases.

REFERENCES
1. 2. 3. Emile Drukheim; Crime As a Normal Phenomenon--------Venugopal Rao, A Facets of Crime in India 1967 at P.18. Quoted from Mohmood Bid Muhammad Article Planning and Research for Crime Prevention Social Defence Journal XII, no.47, Jan.1966 at P.107. Bentham Traite de legislation Pepnale Beccaria Dei dellitir della pene Commentaries on the law of England. Vol. IV. P.15. Art.21&23. Blackstone, Commentaries on the law of England. Vol. TV, Ramagnosi, Genezi del diritt o penale 54 et. Seq. Chjauvean and Helia, Theorie du Code Penal. Shiv Kumar, Delhi Law Review, Doctrine of Mens Rea, Vol. 3, 1974, P.102.

4. 5. 6. 7. 8. 9. 10. 11.

12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Jurispridence, Lecture XXVII. Prof. Kenny, Articles of Criminal Law. Halsburys laws of England, 4 ed. Vol. II para 1. R Vs Russel (1933), R Vs white (1871), 1 CCR 311. Bonoger Introduction to Criminology. Elemer Hubert Johnson: Crime Correction & Society, p. 1. William Clifford-An Introduction to African Criminology. Bishop, Criminal Law (9th Ed.), 287. IN St. Augustines Sermons no. 118.C.2. See R.C.Nigam

CHAPTER-II

HISTORICAL BACKGROUND OF CRIME AND PUNISHMENT

HISTORICAL BACKGROUND OF CRIME AND PUNISHMENT

HINDU ERA
Kautiiya1 put the Principals of punishment well and he says that punishment, if too severe, alarm men, if too mild, it frustrates itself. Punishment, properly determined and awarded, makes the subjects conform to Dharrna (Right), Artha (wealth) and Karma (desire). When improperly awarded due to ignorance, under the influence of lust and anger, it enrages even hermits and (religious) mendicants, not to speak of householders, Punishment not awarded would verily foster the regime of the fish i.e. in the absence of the up holder of law the strong would swallow up the weak. Protected by up older they would prosper. A good summing up of the objects of punishment as conceived in the Hindu Period is found in a recent study by M.Dutta2 where he says If we analyse the implied and explicit purpose of punishment, we find that punishment was conceived, first, as a deterrent measures calculated to strike fear into the hearts of the criminal minded and to check their immoral and anti-social passions. This purpose was served particularly by disproportionately severe punishment and by branding, parading and publicising punishment. The second object was the prevention of the possibility of the culprits repeating their crime. So, the culprit was imprisoned, fettered, killed or exiled. Retribution may be said to be the third motive of punishment in two different senses; Retaliation and making the wrong doer suffer the fruits of his own Karma. The first is particularly noticed in the

mutilation of that very limb by which the wrong was done (e.g. cutting off fingers or hand of a thief, a tongue of a defamer). Punishments, fourthly, are conceived to be an educative & therefore, a reformative process also. Sukra points out that consistent with the Vedic teaching of non-injury to life, a culprit should be educated (Siksayet) & made to work, He takes a very modem socio psycho logical view when he says; Such persons were corrupted by bad company. The kind should punish them and always educate them back on the right path. But punishment was thought be, not only reformatory, but also purificatory in a moral sense. This is more evident in the fact that punishment also included in different forms of repentance, confession, prayer, penitential starvation and long periods of penance.

CLASSIFICATION OF PUINISHMENT
Dr. P.K.Sen.3 has elaborately explained the classification of punishment in Hindu Law The chapter headed by Dandhabhedah deals with the usual four fold classification based on the text of Brhaspati: \ Dhig danda, Dhana and Vadha Danda. Vag dhig dhanam vadhas caiva caturdha Kathito dameh, Purusam vibhavam dosam Jnatva tam parikalpayet; Brhaspati

Punishment is four fold namely, admonition, re-proof, fine and corporal. It should be meted out after the crime committed by him. The first-Vag-danda may be taken to mean punishing with words i.e. giving a solemn warning such as Thou hast acted most improperly. The second-Dhig-danda means punishing with strong censure such as shame on thee, thou miscreant ; if differs from first in intensity, not in kind. The third-Dhana-danda means punishing with fine, which may be of two kinds, fixed, and fluctuating. In certain cases the fixed fine may easily be imposed. Certain other cases dont admit of such easy handling. Allowance must be made in the latter class of the cases for some elasticity in view of repeated inclinations to offence and other circumstances such as violence attending it. When the offence is accompanied by violence the punishment is graded according to circumstances, to fit Prathama sahasa (violence of first order). Madhayama sahasa (violence of second order) & Uttam Sahasa (violence of last and extreme kind) Vadha requires detailed treatment. Vadha may be of three kinds, pidana angaccheda and pramapana. Pidana (afflicting) is sub divided into 4 modes: (i) (ii) (iii) tadana such as whipping or flogging. Avarodhana or restraint of liberty by means of imprisonment. Bandhana, restraint of liberty by chaining, fetters and the like without actual imprisonment.

(iv)

Vidambana i.e. exposing to ridicule and humiliation such as by shaving the head of the offender, making him ride on an ass, branding his person with a mark denoting his offence, proclaiming his offence with beat of drum, making him patrol the city etc.

ANGACCHEDA, mutilation may be of different limbs and organs of the body. Manu mention ten kinds of mutilation. Brahaspati prescribes fourteen, referring to fourteen parts of the body which may be mutilated namely, hand, leg, organ of generation, eye, tongue, ear, nose, half tongue, half leg, thumb and the index finger taken together, forehead, upper lip, rectum and waist. PRAMPANA: means capital punishment. It may be of the pure and the mixed variety i.e. in the latter case mutilation or some other form of punishment may be combined with the death sentence. The pure variety again is of two kinds, ordinary (avictram) and extra ordinary (vicitram), The ordinary form of execution is by means of ordinary weapons such pas sword and the like; the extra ordinary is by means of impaling, or other awe methods. It is noteworthy that according to Brahspati Vag-danda & dhig danda, were within the jurisdiction of Vipras or Pradvivakas, whereas artha danda and vadha danda were within the sole jurisdiction of the kind himself.6

KINDS OF PUNISHMENT
The different kinds of punishment prescribed by the Hindu Law, and some of the principles on which they were directed to be administrated, have been described by P.N,Sen.

Yajnavalkya speaks of four classes of punishment, viz. censure, rebuke, pecuniary punishment and corporal punishment, and says that these should be used either separately or jointly according to the nature of the crime. Of these, mere censure was the lightest form of punishment and rebuke came after it, pecuniary punishment included fine and forfeiture of property and corporal punishment included imprisonment, banishment, branding, cutting of offending limbs, and lastly death sentence, It goes without saying that the measure of punishment depended chiefly on the gravity of the offence; if the offence be not very serious, the punishment must be light, while if the offence be serious the punishment must be severe too.

MUSLIM ERA
For the present purpose it its unnecessary to give a detailed discussion of the theory of punishment in Muslim law. But the following brief extracts from an authoritative book will suffice to give a general picture.

CLASSIFICATION OF CRIME
According to Muslim jurisprudence crime falls into 3 groups, namely: 22. 23. 24. Offences against God, Offences against the state, and Offences against private individuals. Punishment for the first of these classes is the right of God (Haqq Allah) while for the other two classes of offences the injured party may forgive or

compound with the wrong doer. Thus, curiously enough, manslaughter is not a violation of Gods law nor of the kings peace, but only a damage to the family of the murdered man, which can be settled by paying money compensation (called the price of blood) to the next of kind of the victim, without the Executive Head of the state or the Judge of Canon Law having to take any further notice of it, It was only when the relatives of the murdered man refused to accept money damages and insisted on retaliation, that the quazi had to pronounce the sentence of death and the executive to enforce it. The institute of Timur puts the matter with great clearness and force. He writes, Robbers and thieves, in whatever place they might be found, or by whomsoever detected, I commanded to be put to death. And I ordained that if anyone seized by violence the property of another the value of that property should be taken from the oppressor, and be restored to the oppressed. Concerning other crimes the breaking of teeth, the putting out of eyes, the slitting and cutting of the ears and nose, wine drinking and adultery I ordained that whoever should be guilty of these, or other crimes, they should be brought into the courts of the ecclesiastical and lay judges (the exact terms being Qazi and Qazi ahdas meaning ritual impurity) that the ecclesiastical judge should decide on those causes which are determinable by the sacred laws (Shara) and that those which didnt fall under his cognizance (urfi bashad, i.e. pertain to the

customary or secular law) should be investigated and laid before me by the lay judge.

DESCRIPTION OF PUNISHMENTS UNDER MUHAMMADAN LAW

The punishments for crimes were of four classes:Hadd Tazir Qisas Tashhir Hadd means a punishment prescribed by Canon law and considered as the right of God, which, therefore, no human judge can alter. Hadd must take certain prescribed forms of punishment viz.; (i) (ii) (iii) Stoning to death for adultery; scourging for fornication (100 Stripes) Scourging for falsely accusing a married woman of adultery (80 Stripes) Scourging for drinking wine and other intoxicating liquors. For a free man the punishment was 80 Stripes for wine drinking. (iv) (v) Cutting of the right hand for theft. For simple robbery on the highway, the loss of hands and feet; for robbery with murder, death either by the sword or by crucifixion. Tazir is punishment intended to reform culprit tazir is inflicted for such transgression as have no hadd punishment and no expiation prescribed for

them. The kind and amount of tazir is left entirely to the discretion of the judges.... The judge can completely remit the tazir. The process of trial is simple in contrast to that for hadd. Hence attempt was often made to escape tazir by bribery.10 It was not the Right Of God. it could take one of these four forms: (1) (2) Public reprimand (tadib) Jirr or dragging the offender to the door (of the court house?) & exposing him to public scorn somewhat like putting a man in the pillory; (3) (4) Imprisonment or exile; Boxing on the ear; Scourging. The stripes must not be less than 3 and not more than 39. In the Hedaya, a Persian compilation of Islamic law according to the Hanafi school of jurists drawn up by Mulla Tajuddin, Mir Muhammad Hussain, & Muila Shariatullah about 1780, that the above punishments should be inflicted according to the offenders rank, & that imprisonment and scourging were to be confined to the 3 & 4 grades of people, the petty traders and common labourers, respectively ( or as Manu would have put it, the vaishyas and Shudras), while the lighter forms of punishment were reserved for the nobility and gentry.11 As for tazir-bil-mal or chastisement in property i.e. fine only Abu Hanifa pronounces it to be legal, but all other learned men reject it as opposed to the Quranic law. Aurangzeb, who was a strict Hanafl and himself well-read in canon law o& the literature of precedents (fatawa), issued an order to the Diwan of

Gujrat and also of other Subahs, in 1679, to the effect that as fine was not permitted by canon law, every civil official (amal), Zamindar or other person found guilty of an offence should, according to the nature of his act be imprisoned or dismissed or banished, but not punished with fine.12

PRIVATE VENGEANCE AND PUBLIC DEGRADATION ETC

Qisas or retaliation: This was the personal right of the victim or his next of kin, in the case of certain crimes notably murder. If he demanded the legal punishment, the Qazi was bound to inflict it, and neither he nor the kind could exercise the royal clemency by modification or abrogation of the sentence. If on the other hand, the next of the kind of the deceased was satisfied with the money damages, called price of the blood (Arabic diya) offered by the murderer, or pardoned him unconditionally, it was his look and neither the qazi nor the king was to take any further notice of the crime. For minor offences, the retaliation was laid down by the Mosaic Law, a tooth for tooth & an eye for eye with certain exceptions.13 Tashhr or public degradation was a popularly devised punishment of universal currency throughout the Muslim world and even Hindu India and medieval Europe. It is neither recognized nor condemned in the law books of Islam but was inflicted by all Muslim qazis and kings, and even by the lay public, as it was a mild form of lynching: In India, the offenders head was shaven, and he was mounted on as ass with his face turned towards its tail, covered with dust,

sometimes a garland of old shoes placed round his neck, paraded through the streets with noisy music and turned out of the city. The Judge may blacken the face of the culprit, cut his hair or have him led through the streets, etc. This last refers to Arabians practice.14 As for offenses against the state, such as rebellion, peculation and default in the payment of revenue, the sovereign inflicted punishment at his pleasure, because the Quranic law gives no guidance here. Among the prevalent modes of putting an offender to death were having him trodden to death (the last being also sanctioned by medieval English law). Tortures of various degrees of ingenuity were resorted to. Theft (Sarqa) is punishable with the cutting of one hand, one foot. But if the offender has robbed and killed, he is to be put to death and his body publicly exposed for three days on a cross or in some other way. The punishment of death is here considered a haqq Allah and blood money is out of question. All accomplices are punished in the same way. The judge can inflict the above punishments, as hadd, only when all the legal conditions are fulfilled. The legal inquiry has to be conducted; witnesses are necessary, or a confession. If the thief has given back the article stolen before the charge is made, he is immune from punishment.15 The capital sentence (qatl) is inflicted, after the offence has been legally proved, in the following cases:-

(i)

When the next of kin of a murdered person demands the life of the murdered and refuses to accept the alternative of money compensation (Diya or price of blood)

(ii)

In certain cases of immorality; the women sinner is stoned to death by public.16

(iii)

On highway robbery... The Muslim Criminal Law compared more favorably with the

English Criminal Law as it was in force at that time, The English Law still prescribed barbarous punishment and contained some glaring anomalies, while as Hastings had declared; the Muslim law was founded on the most lenient principal and an abhorrence of blood-shed.17 A brief summary of Muslim law of homicide is quoted below from one study18 The law of the murder e.g. needed radical alteration if life was to be made secure. Abu Hanifa, whose opinions were generally accepted by the Bengal Judges, had drawn a sharp distinction between the two kinds of homicide known by the terms Amd (willful murder) and Shahib (culpable homicide not amounting to murder) although such distinction was not recognized by the Quran. The distinction was based on the method by which the crime was committed. If a man killed another by striking him with his fists throwing him from the upper floors of a house, throwing him down a well or into a river, strangling him or with a stick, stone, club or any other weapon on which there was no iron and which would not

draw blood, he was guilty only of shabih-amd, not of murder, and he could not be capitally punished. A man was guilty of murder only if he used a dah (knife) or some other blood drawing instrument and was liable to sentenced to death. Persons guilty of Shabih-amd were merely sentenced to pay the blood-fine to their victims relatives if those relatives chose to accept it. Abu Hanifa however, declared that if a man repeatedly committed murder by strangling, he might be executed. Abu Hanifa, however, had declared who was boron in the eightieth year of Jeijira, had never taken part in the administration of justice, though he had been greatly revered as a virtuous and scholarly theologian. It was said of him that he left his writings and opinions open to the correction of his disciples in so for as those opinions might be found to differ to the holy tradition; but although these disciples, Abu Yusuf and Muhammad, the former being Chief Justice at Bhagdad, did, it was said, help to bring their masters doctrines into great renown, yet nevertheless they entirely differed with him regarding punishment of homicide, laying down the more rational doctrine that if the intention of murder be proved, no distinction should be drawn with regard to the method employed.22 Abu Yusufs opinion, however never came to supersede that of Abu Hanifa, and the important point we have to notice is that the latters view was generally accepted and acted upon in Bengal at this time. In several other cases the Mohammedan law which was administrated in Bengal did not permit murders to be executed. Provided they were Muslims, neither fathers nor mothers suffered death for the murder of their children, but were fined, they were liable to be

hanged only for murdering other peoples children. Grandfathers and grandmothers enjoyed a similar immunity with respect to their grand children so did a master for the murder of his slave, or a man for the murder of a son-in-law provided that his daughter was actually living with her husband at that time. Patricide or matricide however might be punished with death.24 Homicide was justifiable in the following cases: A woman might kill a man who persisted in carrying on an indecent conversation with violence and ill-will a man using a dangerous weapons in the streets of the town during the night or outside the town during the day, might legally be killed. Under certain circumstances a man might kill his wife if caught her in the act of adultery and also her paramour; and he might slay a man who attempted to rape his wife or his slave girl. The authorities who were followed in the Courts of Justice in Bengal differed somewhat on this matter. One law book lay down that a man might kill another who attempted to rape his wife or slave girl. Another authority maintained than an adulterer might be slain provided that, if he made a noise who give the offender a chance to desist; second the adulterer neither fled nor desisted on hearing the noise; third the offender was a Mussulman; and fourth the offender was seen in the very act. The third authority asked, A man finding another with his wife, it is law full to kill him, should be known that the fornicator will cease his attempt at his carrying out, or frightening him with weapons nor mortal his not to slay him. Should be known that his death only will restrain him; it is permitted to slay him.

A fourth authority emphasizes the necessity of producing witnesses to prove the act of fornication if a murder shall state that he has slain anyone on account of fornication, and the heirs of slain shall deny his allegation, the murderer having no witnesses, his assertion being without testimony, shall be deemed inadmissible. A man might be slaying a person caught in the act of robbing his house. But by far the most important reason why murderers frequently escaped the death penalty was that provision of Mohammedan Law, which gave to the sons or next of kin the privilege of pardoning the murderer of their parents or kinsman. This misplaced power of life and death made the fate of a murdered largely depend on the caprice, venality or indifference of the deceaseds main relatives.

BRITISH ERA
The Policy of the British being to interfere as little as possible with Muslim Penal law, only such modifications were made as were required to remove its glaring defects. In 1772 for suppressing robbery a provision was made that dacoits were to be executed in their villages, the villagers were to be fined and the families of the dacoits were to become the slaves of the state. The provision penalizing the villagers and the family, however, very shortly ceased to be in forced.27 The letter of Warren Hastings, President of the Council dated 10th July 1973,28 recorded on proceeding of council and discussed principles of Muslim criminal law as

expounded in theory and as applied in practice, and made several suggestion as to severe punishment and for dacoits, irrelevance of instrument used for committing homicide, the requirement of two witnesses in case of positive capital offense, etc. It also throws considerable light as to the origin of sentence of transportation of life in respect of every convicted felon and murder not condemned to death by the sentence of the Adawlat. 29 Regarding homicide, by Bengal Regulation of 179330 (a) Nature of the instrument as signifying the intention was made immaterial in homicide, the intention was to the gathered from the general circumstances and the evidence, and (b) The discretion left to the next kind of the murdered person to remit the death penalty was taken away. Thus the motive, not the method should determine the sentence. In 1791, the punishment of mutilation was abolished. All criminals adjudged in accordance with the fatwa of law officers to lose two limbs were to suffer, in stead of imprisonment with hard labour for seven years.32 Cornwallis introduced a number of changes in criminal law by Cornwaliis Code. A Bengal Regulation of 1797 provided that in the cases of willful murder, judgment was to be given on the assumption that retaliation had been claimed. The sentence could extend to death if that was prescribed sentence under Mohammedan law. As regards fine of blood the judges were directed to commute the punishment to imprisonment, which could extend to life imprisonment.33

By Bengal Regulation 53 of 1803, regarding escape by convicts, i.e. convicts escaping from their places of transportation if apprehended, were directed to be tried, and on conviction, were to be sentenced to death,34 if no circumstances appear to the court to render such convict an object of mercy. By Sec. 15 of Bengal Regulation of XVII of 1817, exemption of Brahmins of Benaras from capital punishment was abolished.35 By Act 11 of 1857 (36) waging war, and other offences against the state or instigating the same was made punishable with death or transportation for life or rigorous imprisonment up to 14 years in addition to forfeiture of property. By the Act 14 of 1849 regarding Mutiny, it was provided that every person who, maliciously and advisedly endeavored to seduce any person or persons, in the Military or Naval Forces etc. of East India Company from allegiance to Her Majesty or duty to the said company, or endeavored to stir up any person or persons to commit mutiny etc. was on conviction to be transported for life or imprisoned up to 7 years. By Act 14 of 1857, the offence of intentionally seducing or endeavoring to seduce any offence or soldier form his allegiance to the British Govt. or duty to East India Company exciting or causing others to excite mutiny or sedition in army was made liable to be punishment of death or transportation for life or imprisonment with hard labour up to 14 years, besides forfeiture etc.

By Act 5 of 1858, it was passed to deal with the persons, who escaped from jails during mutiny for which punishment was transportation for lifeSections 1 &2. The waging war, the offence was dealt by Act 11 of 1857, preamble and section 1 of which may be quoted.37 Whereas it is necessary to make due provision for the prevention, trial and punishment of offences against the State, it is enacted as follows: All persons owing allegiance to the British Govt. who after passing of this Act, shall rebel, or wage was against the Queen or the Govt. of East India Company, or shall attempt to wage such war, or shall instigate or abet any such rebellion or the waging of such war, shall be liable upon conviction, to the punishment of death, or to the punishment of transportation for life or of imprisonment with hard labour for any term not exceeding 14 years; and shall also forfeit all their property and effects of every description. Regarding the offence of preparing to wage war we may refer to Act 26 of 1858 (corresponding to 122 of Indian Penal Code, 1860), under which the collection of men, arms, ammunition or other wise preparing to buy, war against the Queen or the East India Company or instigating any other person to commit such offence, was punishable with death or transportation of life or imprisonment for life or imprisonment with hard labor unto 14 years and also forfeiture of all property and

effects of every description. There is a proviso to this, Provided that nothing contained in this section shall extend to any place subject to Regulation 14 of 1827 of the Bombay Code. Regarding the offence of preparing to wage war, we may refer to Act 26 of 1858 (corresponding to Sec.122 of the Indian Penal Code, 1860) under which the collection of men, arms, ammunition or otherwise preparing to levy war against the Queen or the East India Company or instigating any other person to commit such offence was punishable with death or transportation for life or life imprisonment or imprisonment with hard labour up to 14 years and also forfeiture of all property and effects of every description. An Act of 1857 should also be referred to, which made provisions for trial of heinous offences in which martial law has been established. Section 1 and 2 of Act 16 of o1857 may be quoted: I. Whoever shall commit or attempt to commit any heinous offence in any District or place in which Martial law has been or shall be established, had or in any district or place to which this Act shall be extended by order of Governor General of India in Council shall be liable, on conviction for punishment of death or to the punishment for transportation for life, or imprisonment with hard labour for any term not exceeding 14 years and shall forfeit all his property and effects of every description.

II.

The words heinous offence shall be deemed to include an attempt to murder, rape, maiming, dacoity, robbery, burglary, knowingly receiving property obtained by dacoity, robbery or burglary, breaking and entering a dwelling house or stealing therein intentionally setting fire to a village, house or any public building, stealing or destroying any property provided for the conveyance or subsistence of troupes, and all crimes against person or property attended with great personal violence, and all crimes committed with the intention of assisting those who are waging war against the state or forwarding their designs. Muslim Criminal Laws, broad features as altered by Regulations on

the subject, before Indian Penal Code, 1860 was enacted may be indicated. Regarding sentences,39 it was felt that discretion which the Muslim criminal law left for heinous crimes was rather unlimited, and its administration became arbitrary and uncertain. In the adjudication of punishment under the discretion thus allowed, the position regarding sentence was often governed by a consideration of the degree of proof rather that the degree of guilt and criminality of the act established against the accused. It was considered necessary to amend the law on these points, and Bengal Regulation did that. Before this position was that the sentence of the court was to be regulated by Muslim Law except in cases in which a deviation from it was expressly directed by any Regulation. The operation of the law may be illustrated with reference to an actual case. Four persons were charged with murder. The principal was sentenced

to death, one convicted of being an accessory before the fact and of bringing a false accusation of murder against an innocent person was sentenced to Life imprisonment; the remaining two convicted of privity of crime, were sentenced to imprisonment of 3 years. It was recognized that there was a great difference between an offence entered upon with deliberation and a criminal intent and one committed with premeditation and unprovoked by previous enmity and malice Intoxication was considered as a ground of mitigation for punishment in certain cases, unless willful.40 In cases where the Sessions court condemns a prisoner to suffer death penalty or imprisonment for life, it was to transmit a copy of the sentence to Nizamut Adawlut, and to execute the sentence till the final sentence of that court. There seems to have been controversy as to whether a person, who is compelled by another by a menace of death to murder a 3 person, could be excused for murder. One view was that in such cases the person compelled, as the instrument rather than the author of homicide, and therefore, subject to discretionary punishment only if the circumstances of the case so required. Another view was, that both the parties were liable to murder.41

PUNISHMENT
The mode by which the state enforces its laws is forbidding the doing of something or omission to do something. Punishments are of various

types. It may be mere reprimand, it may be fine, may be whipping; it may be imprisonment-simple or rigorous; it may be even extended to death. But whatever the form, punishment is always co related to a low of the start forbidding the doing or the omission to the do something. Punishment is the suffering in person or property inflicted on the offender under the sanction of law. Punishment is the retribution due for violation of the rules of society, which are made for its preservation and peace. Bentham regarded the prevention, the punishment of mischief as the sole aim of punishment. Other writers regard retribution as its chief mission, but it is evident that so long as punishment was the concern of the person aggrieved, retribution was the sole object. The true doctrine of punishment in modern civilized state is, therefore, now based on the prevention of crime, but it is only its main, though not its sole object. According to Plato, both personal as well as public sentiments demand that the person who has made others suffer unjustly should himself be made to suffer in return. It is distinct from the moral side of an act with such properly the courts are not concerned. They are concerned solely with the nature of the act viewed as a crime or breach of the law. The law indicates the gravity of the act by the maximum penalty for its punishment and the courts have to judge whether the act committed falls short of the maximum degree of gravity or not. The main object of punishment is the prevention of crime and the measure of punishment vary from time to time according to the prevalence of a particular

form of crime and other circumstances. To shut a man up in prison longer than is really necessary is only bad for the man himself, but also it is a piece of cruelty and economically wasteful and a source of loss as to the community. The sentence must be such as to serve as a deterrent to other.45 What should be an adequate punishment with the maximum provided for an offence is primarily for the convicting Court to decide, but that discretion should exhibit that a reasonable proportion has been maintained between the seriousness of crime and the punishment imposed. While courts should not pass a sentence disproportionately severe as compared with the of offence committed, they should also be careful not to award a sentence that on account of its manifest inadequacy would produce the deterring effect on the offender and serve as an eye- opener to the rest. Although no hard and fast rule can be laid down for measuring what in a particular case would be proper sentence, yet courts are expected to observe a desirable proportion between the gravity of the offence and the punishment for it.46 It is an elementary proposition in criminal jurisprudence that should be proportionate to the nature & gravity of crime.47 A court in passing a sentence should inflict such sentence as the gravity or otherwise of the crime of which the accused has been convicted warrants and merits, irrespective of whether the sentence inflicted will involve a right of appeal or not. The court cannot take into account the prayer of the accused that an appeal able sentence should be passed. The court should weigh the

sentence with reference to crime committed and the circumstances of the case and not with reference to anything which may happen subsequently. Punishment is in itself an evil and can be justified only by its effects in deterring the offender from committing the offence in future and in deterring others by the example from the commission of it, so, in each case punishment must by minimum that will produce both these effects. Greater discretion should be exercised in making the penalty fit the crime, and that the practice of committing petty offenders to the Sessions Courts after 3 or 4 convictions should cease.50 In case of habitual offenders: - where a man from his past conduct shows that he intends to adopt a criminal character, three things should by borne in mind.. (i) It is necessary to pass a sentence upon him, which will make him realize that a life of crime becomes increasingly hard and doesnt pay. (ii) The sentence should serve as a warning to others who may be thinking of adopting a criminal career. (iii) The public must be protected against people who show that they are going to ignore the rules framed for the protection of the society.51 Principles of punishment fall broadly into two classes: (1) Those in which the Courts have favoured the passing of lenient sentences and the observance of moderation. 2) Those to which the courts have encouraged the passing of heavy or deterrent sentences53.

From the above classes of cases the following principles emerge: The twin objects of punishment are to prevent a person who has committed a crime repeating it and to prevent others from committing similar crimes. The sentence passed must achieve these objects. The prevalence of a particular crime in a particular area or during a particular period should also be taking into account. Ones political, sentimental or religious pre-conceptions should by strictly disregard. No sentence should ever appear to be vindictive. An excessive sentence defeats its own object and tends to further undermine the respect for law. The jails should be reserved for the reception of those who perform criminal acts of not merely a technical but of criminal character. If the law permits a sentence of fine as an alternative, there is no need of the sentence of imprisonment, unless of course of the offender demand it. First and/or youthful offenders should invariably be treated leniently, and in applying provisions of law like the first offenders Probation Act or Sec.360 (Sec-562, old), Code of Criminal Procedure, 1973. It wont be better for the court to err on the side of liberality. On the other hand, a person who has taken to a life of crime or who has refused to take a lesson from his previous conviction should be meted out severe punishment. A deterrent sentence is wholly justifiable when the offence is the result of deliberation and pre-planning is committed for the sake of personal gain at the expense of the innocent, is a menace to the safety, health or moral well

being of the community, or is difficult to detect or ::ace. Unlike those acts which are universally acknowledged to be of a minal nature, an act which has only recently been made an offence or which is not unlawful in other parts of the country or state not essentially criminal in character deserves leniency except in the case of persistent offenders. The dictionary meaning of punishment is that which is inflicted as a penalty. Chambers Twentieth Chambers Dictionary gives the meaning of punishment, as an act or method of punishing, penalty imposed for an offence and punishing is defined as causing, suffering or retribution. Under the dictionary meaning, therefore, disqualification would be included in a punishment. In this connection it would be useful to refer GARANAND SING Vs EMPEROR.54 It was a case where there was an orderinflicting fine and suspension under Motor Vehicles Act as follows; In the case of convictions under the Motor Vehicles Act, in many cases an order of suspension of a driving licence is a much more serious part of the punishment than a sentence of a fine. It was argued that the order of suspension of the driving licence was merely an execution act and not a part of the judicial punishment, because the suspension of a licence is not mentioned as one of the punishments, which can be inflicted under the Penal Code. This may well be, but the list of punishments given in Section-53, Penal Code, is not exhaustive. Other punishments, besides those mentioned in the section can be inflicted by Criminal

Court in certain cases e.g. whipping, detention in a Borstal institute or a Training School, etc. The word sentence given in Law Lexicon55, is as follows: Sentence as a term is used Criminal Law, is the appropriate word to denote the action of the court before which the trial is had to declare the consequences to the convict of the fact thus ascertained. In Strouds judicial Dictionary, 4 Edition, sentence is defined as follows: Sentence is defined in criminal Appeal Act, 1907, section 21 as amended by Criminal Justice Act, 1967, schedule 4, para 8. It includes any order of the Court made on conviction. It does not include a sentence of imprisonment for failure to surrender to bail56 The natural meaning of the word sentence therefore, would show that disqualification of suspension of the driving licence, which is consequence upon the conclusion of the guilt, and an order passed on conviction should amount to sentence. Besides the forms of punishment here prescribed two other forms, namely, dismissal from the office and pillory or exhibition of the offender on a donkey. They considered the first as unfit for executive action, and the second as unequal. To employ a punishment which is more bitter than the bitterness of death by a man who has still some remains of virtuous and honourable feelings,

and which is a mere matter of justice to the utterly abandoned villain, appears to us most unreasonable. Flogging is not included in the list of punishments provided by the Code. This punishment was also passed in review by the draftsmen and condemned for the same reason as pillory and donkey-riding on the ground that, to a person in decent station in life, it adds disgrace to the severity which could not be justified except when inflicted upon juvenile offenders. The draftsmen, however, admitted that their remarks did not apply to juvenile offenders in whose case that form of sentence is both deterrent as well as unexceptionable. In 1864, a Whipping Act was passed and it introduced the sentence of flogging as a punishment for certain crimes, This Act was replaced by the Whipping Act, 1909 (Act 4 of 1909) which modified the rigour of the old act and confined the sentence of flogging to old and juvenile offenders only. Then Abolition of Whipping Act, 1955 (44 of 1955), has abolished whipping and repealed the Whipping Act, 1909 (Act 4 of 1909). There was an element of brutality in the sentence of flogging and it was a stain on civilization. The Indian Parliament has removed this blot disfiguring the statute book. The list of punishments given in section 53, Indian Penal Code is not exhaustive. Other punishments besides those mentioned in the section can be inflicted by Criminal Courts in certain cases e.g. whipping, detention in a borstal schools or institute, an order under section 356 Code of Criminal Procedure, 1973. An order passed under Section 25, of Burma Prevention of Crime (young

offenders) Act, is a punishment with in the meaning section 3, Whipping Act. But an order under Section 360 of Code of Criminal Procedure directing release on probation is not a punishment. In the Madras Presidency the punishment of stocks is prescribed for offenders of lower castes.

MEASURE OF PUNISHMENT
General Principles:- Broadly saying the general principles of measure of punishment have been laid down by various authors on the basis of decided case on this point, which are as under: 1. The quantum of punishment to be awarded in each case is a matter with in the discretion of the court and should not exceed the interests of justice. 2. In awarding punishment, the court must bear in mind the objects for which the law provides for punishment for offences. The court must pass such sentence as fits the crime in each case.59 3. 4. The punishment must not be too severe and too lenient. There must be proper proportion between the gravity of the offence and the punishment imposed.60 5. In fixing the punishment for any particular crime the court should take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender, the provocation, if any, which he had received, the antecedents of the offender,

his age & character and so on. All these factors must be established by the evidence and not by mere impressions formed on the spur of the moment.61 6. Except in cases where a minimum period of imprisonment has been prescribed, as for instance of sections 397 & 398, the court has a discretion to adjust the period of imprisonment according to the requirements of the justice in each case subject to the maximum mentioned in the punishment section.62 7. In case of fine, where a maximum amount is fixed by the punishment section, the court ought not to impose the maximum amount as fine unless the offence is of a serious character.63 8. The punishment to be awarded must be the least that will achieve the double object of deterring the accused from repeating his offence and other persons from committing a similar offence. 9. When the court imposes the maximum sentence allowed under the law, it should record its reasons for doing so. 10. The real object of punishment being prevention of crime, the measure of punishment naturally varies according to the prevalence of a particular form of offence at a given time.65 11. The court cannot take into consideration the request of the accused that an appeal able sentence should be passed.66 12. Justice should be even-handed. Other things being equal, same offence should receive the same punishment.67

By laying down standards it is meant that murder should be categorized according to the degree of its culpability and all the aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion. According to Cessare Beccaria, Crimes are only to be measured by the injury done to society But according to Von Hirsch, Seriousness of a crime depends both on the harm done by the act and degree of the actors culpability. So, the measurement of the degree of culpability of a crime is a serious and intricate problem. Criminal cases do not fall into set-behaviouristic patterns. Even with in a single category offence there are infinite, unpredictable and unforeseeable variations. There are countless permutations and combinations, which are beyond the anticipatory capacity of human calculus. A standardization of sentencing process, which leaves little room for judicial discretion to take account of variations in culpability within single-offence category, ceases to be judicial. Legislatures highest judicial duty is to recognize the limits on judicial power and to permit the democratic process to deal with matters falling outside of those limits. So, the courts should not formulate rigid standards in an area in which the legislative so warily treads. Only broad guidelines consistent with the

policy indicated by the legislative in Sec.354 (3) of Code of Criminal Procedure can be laid down. From Sec.354 (3) and 235(2) and other related provisions of the Code of Criminal Procedure, 1973, it is quite clear that for making the choice of punishment or for ascertaining the existence or absence of special reasons in that context, the court must pay regard both to the crime and the criminal, relative weight to be given to the aggravating and mitigating factors, depending on the facts and circumstances of the particular case. These two factors are so intertwined that it is difficult to give a separate treatment to each of them. In many cases cruel and beastly manner of the commission of the murder is itself a demonstrated index of the depraved character of the perpetrator. Thats why; its not desirable to consider the circumstances of the crime and criminal in two separate water tight compartments. In several countries which have retained death penalty, pre planned murder for monetary gain, or by an assassin hired for monetary reward is, also considered a capital offence of first degree which in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorization would dangerously overlap the domain of legislative policy. So, in order to qualify for inclusion in the category of aggravating circumstances which may form the basis of special reasons under Sec,354 (3), circumstances found on facts of a particular case, must evidence aggravation of an abnormal special degree.

Dr. Chitaley has suggested these mitigating factors:- i.e. In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:1. That the offence was committed under the influence of extreme mental or emotional disturbance. 2. The age of the accused if the accused is young or old he shall not be sentenced to death or life imprisonment. 3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. 4. The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove that the accused does not satisfy the condition 3 & 4 above, 5. That in the facts and circumstances of the cases the accused believed that he was morally justified in committing the offence. 6. 7. That the accused acted under the duress or domination of another person. That the condition of accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. These are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several states of India there are in force special enactments, according to which a child i.e. person who at the

date of murder was less than 16 years of age can not be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special acts provide for a reformatory procedure for such juvenile offences or children. Death Sentence is to be awarded in rarest of rare cases and life imprisonment is the rule and death sentence is an exception. The chief arguments of the abolitionists, which have been substantially adopted by the learned counsel for the petitioners, are as under: (a) The death penalty is irreversible. Decided upon according to fallible processes of law by fallible human beings, it can be-and actually has beeninflicted upon people innocent of any crime. (b) There is no convincing evidence to show that death penalty serves any penological purpose: (i) Its deterrent effect remains unproven; as it has not been shown that incidence of murder has increased in countries where death penalty has been abolished, after its abolition. (ii) Retribution in the sense of vengeance is no longer an acceptable end of punishment. (iii) On the contrary, reformation of the criminal and his rehabilitation is the primary purpose of punishment. Imposition of death penalty nullifies that purpose.

(c)

Execution by whatever means and for whatever offence is a cruel, inhuman and degrading punishment. The Law Commission of India in its report after carefully sifting all

the materials collected by them, recorded their views regarding the deterrent effect of deterrent effect of Death sentence as compared to life imprisonment: Capital punishment does not act as a deterrent. The main points that weighed in arriving at this conclusion is: (a) (b) Basically, every human being dreads death. Death, as a penalty, stands on a totally different level from imprisonment for life. The difference is one of quality and not merely of degree. (c) Those who are specially qualified to express an opinion on the subject including particularly the majority of the replies received from state governments, Judges, Members of Parliament and Legislatures and Members of the Bar and police officers are definitely of the view that the different object of capital punishment is achieved in a fair measure in India. (d) As to conduct of prisoners released from jail (after undergoing Imprisonment for life), it would be difficult to come to a long period of years. (e) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt. (f) Statistics of other countries are inconclusive as proving the different effect; neither can they be regarded as conclusively disproving it.

Some of the penologists justify capital penalty and life imprisonment. According to them, the isolation theory of crime and punishment is that the criminal law is a device for identifying persons dangerous to society who are then punished by being isolated from society as a whole, so that they cannot commit anti-social acts. The isolation theory is used to justify the death penalty and long-term imprisonment. Obviously, this theory is effective in preventing criminal acts by those executed or permanently incarcerated. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.69 Before opting for Death Sentence the circumstances of the offender also require to be taken into consideration along with circumstances of the crime. Life Imprisonment is The Rule and, Death Sentence is An Exception. In other words Death Sentence must be imposed only when Life Imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.70 Protagonists of the an eye for an eye philosophy demand death for death. The humanists on the other hand press for the other extreme viz., rarest

of rare cases formula for imposing death sentence has been evolved by Court. The crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the antisocial or abhorrent nature of the crime, such as for instance:

I.

MANNER OF COMMISSION OF MURDER

When the murder is committed in an extremely brutal, grotesque,

diabolical revolting, or dastardly manner so as to arouse intense and extreme indignation e.g. (1) When the house of the victim is set aflame with the end in view to roast him alive in the house. (2) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his/her death. (3) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II.

MOTIVE FOR COMMISSION OF CRIME

When the murder is committed for a motive, which evinces total

depravity and meanness, e.g. when (a) (b) a hired assassin commits murder for the sake of money or reward. a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under

the control of the murderer or vis--vis whom the murderer is in a dominating position. (c) a murder is committed in the course of the motherland.

III. ANTI-SOCIAL OR SOCIALLY ABHORRENT NATURE OF CRIME

(a) When murder of a person is committed not for personal reasons but in circumstances which arouse social wrath. For instance when a crime is committed in order to terrorize such persons and frighten them into feeling from place-or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of bride burning and what are known as dowry- deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV.

MAGNITUDE OF CRIME
When the crime is enormous in proportion

V.

PERSONALAITY OF VICTIM OF MURDER:

When the victim of murder is:

(a)

an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder.

(b) (c)

a helpless woman or a person rendered helpless by old age or infirmity. When the victim is a person vis--vis whom the murderer is in a position of domination or trust.

(d)

When the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. Life imprisonment is the rule and death sentence is an exception. In

other to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and the option to impose life imprisonment cannot be conscientiously exercised having regard to the nature and circumstances of the crime.

NECESSITY OF ADMINISTRATION OF PUNISHMENT

A herd of wolves it has been said, is quieter and more at one then so many men, unless they had one reason in them, or have one power over them. According to philosopher Hobbes, Man is by nature a fighting animal and force is the ultimate ratio not of kings alone, but of all mankind, Without a common power to keep them all in aware, it is impossible for men to cohere in any but the primitive forms of society. Without doing so, civilization is

unattainable, injustice is unchecked and the life of man is, as the author of Leviathan tells solitary, poor, nasty, brutish, short and us. Men being what they are, each keen to see his own interest and passionate to follow it. Society can exist only under the shelter of state, and the law and justice of the state is a permanent and necessary condition of peace, order and civilization.

ORIGIN OF ADMINISTRATION OF PUNISHMENT

In the beginning a man redressed his wrongs and avenged himself upon his enemies by his own hand, and aided if needed, by the hands of his friends and kinsmen; but presently, the sword of state defends him. All early codes, shows us traces of the hesitating and gradual method in which the voice and force of the state became the instruments of the declaration and enforcement of justice. In the laws of the Saxon kings, Alfred, for instance, there is no prohibition of private vengeance, but merely is regulation and restriction. In due measure and in fitting manner it was the right of every man to do for himself that which modern times is done for him by the state. As the royal justice grew in strength, however, the law began to speak in another tone and we see the establishment of the modern theory of the exclusive administration of justice by the tribunals of the state. An interesting stage in the transition was trail by battle, which was a straggly regularized judicial combat introduced into England by the Normans.

The administration of justice has been already defined as the maintenance of right with in a political community by means of the physical force of the state. It is by the application by the State of the sanction of force to the rule of right.

THE PURPOSES OF CRIMINAL JUSTICE AND PREVENTIVE PUNISHMENT

The ends of criminal justice are four in number, and in respect of the purposes so served by it, punishment may by distinguished as: 1. 2. 3. 4. 1. Deterrent. Preventive. Reformative, and Retributive. Of all these aspects first is the essential and all-important one, the others being merely accessory. Punishment is before all things DETERRENT and the chief end of the law of crime is make the evil doer an example and a warning to all that are like-minded with him. As offences are committed by reason of conflict between the interests, real or apparent, of the wrongdoer and those of society at large, punishment prevents offences by destroying this conflict. In the words of Locke, an ill bargain to the offender. Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of doer of it. The purpose of criminal law

is to supply by art the motives, which are thus wanting in the nature of things. 2. PREVENTIVE OR DISABLING is at 2nd place. Its primary and general purpose is to deter by fear. And its secondary & special purpose is to prevent a repetition of wrong doing by the disablement of the offender. The most effective mode of disablement is the death penalty, which in practice, in the time of peace, is confined to the crime of murder, though it is legally possible also for treason & treason forms of piracy and arson. The opposition to the death sentence is based partly on religions & partly on social grounds; A similar secondary purpose exists in such penalties as imprisonment, and forfeiture of office, the suspension of driving licenses, and the old penalty of exile. 3. RETRIBUTIVE PUNISHMENT It gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are well extant in human nature. Although in their lawless & unregulated exercise and expression they are full of evil, there is in them none the less an element of good. The emotion of retributive indignation in its self-regarding and its sympathetic forms is even yet the mainspring of the criminal law. Did we punish criminals merely from an intellectual appreciation of expediency of so doing & not because their crimes arouse in

us the emotion of anger and the instinct of retribution, the criminal law would be but a feeble instrument. It is a very widely held opinion that retribution is in it, apart altogether from any deterrent or reformative influences exercised by it, a right and reasonable thing, and the gist reward of iniquity. Kant e.g. expresses the opinion that punishment cant rightly by inflicted for the sake of benefit to be derived from it either by the criminal himself or by society, and the sole and sufficient reason & justification of it lies in the fact that evil has been done by him who suffers it. Punishment is in itself an evil and can be justified only as the means of attaining greater good. Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. A more definite form of idea of purely retributive punishment is that of expiation. In this view, crime is done away with, cancelled, blotted out, or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence. According to Lilley, Whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated... This is the first object of punishment to make satisfaction to outraged law. Revenge is the right of the injured person. The penalty of wrongdoing is a debt, which the offender owes to his victim, and when the punishment has been endured the debt is paid, the liability is extinguished,

innocence is substituted for guilt. The object of true redress is to restore the position demanded by the rule of right, to substitute justice for injustice to compel the wrongdoer to restore to the injured person that which is his own. The fact that in the expiatory theory satisfaction is conceived as due rather to the outraged majesty of the law, than to the victim of the offence, merely marks a further stage in the refinement and purification of the primitive conception. 4. REFORMATIVE PUNISHMENT: Offences are committed

through the influence of motives upon character and may be prevented either by a change of motives or by a change of character punishment; Punishment as deterrent acts in the former method, punishment as reformative in the latter. This curative or medicinal function is practically limited to two particular species of penalty, namely, imprisonment and probation. It would seem that this aspect of criminal law is destined to increasing prominence. The new science of criminology would go for towards identifiying crime with disease, and would willingly deliver many classes of criminal out of the hands of the men of medicine. The purely reformative theory admits only such forms of punishment as subservient to the education and discipline of the criminal, & rejects all those, which are profitable only as deterrent or disabling. Death in this view is no fitting penalty; we must cure our criminals, not kill them. Flogging and other corporal inflections have already been exercised from the law as they are degrading and brutalizing both to those who suffer and to those who inflict them, & so fail in the

central purpose of criminal justice. Imprisonment and probation, indeed, as already indicated, are the only important instruments available for the purpose of a purely reformative system. Imprisonment, however, to be fitted for such a purpose, requires alleviation to a degree quite inadmissible in the alternative system. If the criminals are sent to prison in order to transform into good citizens by physical intellectual and moral training, prisons must be turned into dwelling houses for too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn, It is also not effect in case of incorrigible offenders. The perfect system of criminal justice is based on the neither the reformative nor deterrent principle exclusively, but is the result of a compromise between them. In this compromise it is the deterrent principle, which possess predominant influence. It is an important truth, unduly neglected in times past, that to a very large extent criminals are not normal and healthy human beings, and that crime is in great measure product of physical and mental abnormality and degeneracy. Too much attention has been paid to the crime, and too little to the criminal. The more efficient the coercive action of the state becomes, the more successful it is in restraining all normal human beings from the dangerous paths of crime, and the higher becomes the proportion of degeneracy among those who break the law. The reformative element must not be overlooked, but neither must it be allowed to assume undue prominence. In the case of youthful criminals and

first offenders the chances of effective reformation are greater than that of adults who have fallen into crime more than once, and the rightful importance of the reformative principle is therefore, greater also. Sexual offenses admit more readily of reformative treatment than others. In orderly and law-abiding communities concessions may be safely made in the interests of reformation, which is more turbulent societies would be fatal to the public welfare.

PUNISHMENTS UNDER IPC

The punishments are provided under Sections 53 to 75 of the Indian Penal Code, 1860 out of which five sections (56, 58, 59, 61 & 62) have been repealed. The offenders are liable to following punishments: 1. 2. 3. 4. 5. Death. Imprisonment of life. Solitary Confinement. Forfeiture of property. Transportation. It is the duty of the Court to direct in the sentence that the Imprisonment awarded by it is either rigorous or simple or partly rigorous or partly simple.72 The maximum term of Imprisonment that can be awarded should not exceed 14 years73 and should not be less than 24 hours.74

It the accused is charged under Sec. 397 & 398, the Imprisonment awarded shall not be less than 7 years. In case of rigorous imprisonment, the prisoner is put to hard labour while in the case of simple imprisonment he is confined to Jail only. There is third type of confinement known as solitary confinement. This can be awarded to persons punished with rigorous sentence with the condition that whole period of Solitary Confinement should not exceed 3 months. According to Sec.74 (a) (b) (c) Solitary Confinement shall not exceed 3 months in alleviation; 14 days at a time with intervals of not less than 14 days; 7 days in a month with inter vales of at least 7 days if the term of imprisonment exceeds 3 months; The Punishment as provided for certain offenses can be enhanced in case of old offenders. According to Sec.75 if a person having been convicted of an offence against coins or stamps, punishable with imprisonment 3 years or more is again found guilty of the same offence, he shall be punished with imprisonment for life or for a period of 10 years. Forfeiture of property under the Code was provided in sections 61 & 62, which have been repealed in 1921. But under Sections have 126, 127 & 169, forfeiture of property can be ordered. FINE - Where no specific amount of fine is to be imposed is mentioned, it shall be discretionary but not excessive.

The law of cumulative Punishment is contained in Sections 71 & 72 of Indian Penal Code, 1860.

CONCEPT OF LIFE IMPRISONMENT UNDER DIFFERENT STATUTES (A) THE PREPVENTION OF FOOD ADULTERATION ACT, 1954
Proviso to Sec. 16 of the Act provides that:-If such article of food or adulterant, when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt with the meaning of Sec.320 of Indian Penal Code, 1860, he shall be punishable with imprisonment for a term which shall not be less than 3 years but may extend to term of life and with fine which shall not be less than 5,000 Rupees.

(B)

COMMISSION OF SAT! PREVENTION ACT, 1987

Sec.4 of the Act, which deals with abetment of Sati, mandates that: (1) notwithstanding anything contained in the Indian Penal Code,

1860, if any person commits sati, who ever abets the commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life and also liable to fine; (2) If any person attempts to commit sati, whoever abets either

directly or indirectly, shall be punishable with imprisonment for life and also liable to fine;

(C)

ARMS ACT, 1959

Sec.25 (1-AA) of this Act provides that: Whoever manufactures, sells, transfers, tests or proves or exposes

or offers for sale or transfer or has in his possession for sale, trainer conversion, repairs text or proof, any prohibited arms shall be punishable with imprisonment for a term which shall not be less than 7 years may extend to imprisonment for life and also liable for fine. Similarly Sec.27 (2) provides that: Whoever uses any prohibited arms or prohibited ammunition in contravention of Sec.7 shall be punishable with imprisonment for a term which shall not be less then 7 years but which may extend to life imprisonment & shall also be liable to fine.

(D) THE DRUGS & COSMETICS ACT, 194075

Sec.27 of the Act, which deal with penalty for manufacture, sale, etc. of drugs in contravention of this Act, provides that: Whoever himself or by any other person on his behalf, manufacturers for sale or for distribution, or sells, any drugs deemed to or by adulterated under Sec. 17-A or spurious under Sec. 1 7B or which when used by

any person or in the diagnosis, treatment mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt with the meaning of Sec.320 of Indian Penal Code, 1860, solely on of such drug being adulterated or spurious or not of standard quality, as the case may be shall be punishable with imprisonment for a term which shall not be less then 5 years may extend to life imprisonment and Rs. 10,000 as fine.

REFERENCES
1. Kautilya cited in Dr. P.K,Sen, Penology old and new (Tagore Law Lectures 1929), (1943 Edn.), p.104. 2. M.Dutta, Political, legal and Economic Thought in Indian Perspective, in Moore (Editor) Philosophy & Culture-East and West, University of Hawaii, 1962), p.569, 591. 3. 4. 5. 6. 7. SupraNote 1, p.126-128. Dandaviveka Gaekwads Oriental Series, Vol.52, p-20. Supra Note 4, p. Supra Note 4, p.12. Dr. P.N.Sen, Hindu Jurisprudence,((Tagore Law lectures, 1909) (1918) Edn.). pp.342-243. 8. 9. Jadunath Sarkar, Mughal Administration, (1952), page 101 to 109. Davy Institutes of Timur, p-2Sl & 253, corrected by reference to the Persian text. 10. 11. 12. 13. 14. 15. 16. Encyciopida. Islam iv 710. Hedaya, 203-204; full details in Hughes, 632-634. Mirat-t-Ahmadi, i.293. Hughes, 481, Encyc. 1st. ii. 1038. Encyclopedia, Islam.i.132. Supra Note 14 iv. 173-174. Ency. 1st, S.V.Zina iv 1227.

17.

Monckton Jones, Hastings in Bengal, p.331 cited by Aspinall, Cornwallis in Bangal, (Manchestar University Press), 1931, p.61.

18. 19. 20. 21. 22.

Aspinall, Cornwallis in Bengal (1931) p.53-56. Bengal Reve. Cons.28 Nov. 1788; 30-12-1789. Ibid. Supra Note 19,21 July, 1790. Supra Note 19; 19 Aug 1789. This information was given to Janathan Duncan, the companys Resident at Benaras, by Mohammadan Judges of the Benaras Courts.

23. 24. 25.

SupraNote 19; 28 Nov. 1789; 30 Dec. 1789. Supra Note 19; 30 Dec. 1789; 20 June 1792. Art. 35 of the Plan for Admn. of Justice in Bengal framed by Committee of Circuit Prescribed by Hastings.

26.

Aspinall, Cornwallis in Bengal (1931), p.65 f.n. 4, citing Bengal letter to court dated Nov 3, 1772

27. 28. 29. 30.

Bengal Revenue Consultations, Dec 29, 1785 Cole brook digest, supplement, Calcutta (1807), p 114 SupraNotel9,p115 (Sections 50,52,55,76 Bengal Regulations 9, 1793 substituted by Regulation 4, 1797)

31. 32.

Harrington, Vol 1 pages 312, 313 SupraNote28,p 159

33. 34. 35. 36

Bengal Regulation 4 of 1797 ( March, 1797), Sec 3 Bengal Regulation 53, 1803, Sec 3, Clause second BengalRegulationl7ofl8l7,Sec 15 An Act for the prevention, trial and punishment of offences against State (30 May, 1857)

37 38 39 40 41 42 43 44 45 46 47 48. 49. 50. 51. 52.

Ibid Act 26 of 1858 (Sec 1) Beaufort, Digest of Criminal Law, (1846), p 16, para 43 Ibid,p33,parall7 Supra Note 39, p 29, para 93 Principles of Penal Law, Pt-2 Chapter III, p 396 (Vol I, Coil , Ed) Mercers Criminal Responsibility, p-i9 Benthams Principles of Penal Law, Pt 2, Bk I pp 406 State Vs Baichandra Waman Pethe, AIR 1966 Bom 122 at p 126 StateVs KapurSinghAlRl953Pepsull8atp 119 Emperor Vs Maiku AIR 1930 All 279 Emperor Vs. Yar Mohd. AIR 1931 Cal. 448 atp. 450. Mst. Nanhi Gand Vs. Emperor AIR 1972 Nag. 221. Kind - Emperor Vs. Gala Mana AIR 1924 Born. 453. Mohd Hanif Vs. Emperor AIR 1942 Born, 215 at p. 216. Jainarain Shah Vs. Emperor; AIR 1944 Pat. 16, Emperor Vs. Sakinbar Badrviding, AIR Born. 70.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74.

Mohd. Hanif Vs. Emperor AIR 1942 Born. 215. AIR 1965 M.P. 122. Law Lexicon by P.R.Aiyar. R. Vs. Harman (1959) 2 Q.B. 134. Mohd. Shabir Maulamaiya vs. State of Maharasthra, 1977 Mah. U 338. SCR 1091. AIR Manual, IPC, 1860 p. 780. AIR 1944 Pat. 16 (16). Pat. 1820. SC 392, 1983 Raj. LR 854. Cri.LJ415D.B. All. 919, 924. Lab. 239(2). Pepsu9(21). cri. U 1181 (DB). Report of Law commission of Indian on capital Punishment, Bachan Singh Vs. State of Punjab AIR 1980 SC 898. Machhi Singh Vs. State of Punjab. AIR 1983 SC 957. Jeremy Taylor, Works-XII, 306 Sec.6OofIPc. Sec.55 of IPc. Sec.5lOofIPC.

75.

Sec.27 Substituted by Act 68 of 1982, w.e.f 1-2-1983.