HARNAM versus STATE OF U.P.

Citation: [1976] 2 S.C.R. 274 · Decided: 10-10-1975 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

0 
Ill 
274 
HARN AM 
v. 
STATE OF U.P. 
October IO, 1975 
[P. N. BHAGWATI AND R. S. SARKARIA, JJ.] 
Penal 
Code-Murder-Sentence 
to 
be 
imposed-Life 
imprisonme1•~ 
Capital. punishment-When could be imposed. 
The legislative history in regard to the subject of ·~apital punishment shows 
tha.t there has been a significant change in thinking and approach since India 
became free. 
Prior to the amendment of s. 367(5) of the Code of Crimmal 
Procedure by Act 26 of 1955, the normal rule was to impose sentence of 
death on a person convicted for murder and if a lesser sentence was to be 
imposed, the Court was required to record reasons in writing. 
But by Act 26 
of 1955, this provision in s. 367 (5) was omitted with the result that the Court 
became free to award either death sentence or life imprisonment, and no 
longer was death sentence the rule and life imprisonm~nt the exception. Then 
again a further progress was made in the same direction by s. 354 (3) of the 
Criminal Procedure Code, 1973. That section provides that when the convic-
tion is for an offence punishable 
with 
death or in the 
alternative 
with 
imprisonment for life or imprisonment for a term of years, the judgment shall 
state the reasons for the sentence awarded. and, in the case of senten~e of 
death, the special reasons for such sentence. The unmistakable shift in the 
legislative emphasis is that for murder, life. imprisonment should be the rule 
and capital punishment the exception to be resorted to only for special redsons. 
lt is only where, in view of the peculiar facts and circumstances, there are 
spe~ial reasons that the death sentence may be awarded : otherwise life sentence 
offence would certinly be "too young." [277G; E, Fl 
The seminal trends in current sociological thinking and penal strategy, 
tempered as they are by humanistic attitude and deep concern for the worth 
of the human person, frown upon death penalty and regard it as cruel a11d 
savage punishment to be inflicted only in exceptional cases. [276G] 
In the instant case the appellant was charged with an offence of murder 
by severing the head of the 
de~eased from the body and then carrying it 
away in a most brutal and inhuman manner. The trial conrt convicted and 
sentenced him to death. 
Both the conviction and sentence were upheld by the 
High Court. 
· 
On the question of sentence, 
Allowing the appeal to this Court, 
HELD : The appellant was just around 16 years of age at the time when 
he committed the offence and, therefore, he would be entitled to the clemency 
of penal justice. It would not be appropriate to impose the extreme penalty 
of death. 
Taking into account the current sociological and juristic thinking 
as could be seen from the recommendation of the Law Commission which 
appears to have been incorporated in the Indian Penal Code (Amendment) 
Bill. J 972, it would be legitimate for the Court to refuse to impose death 
sentence on an accused convicted of murder, if it finds that at the 
~ime 
of the commission of the offence the appellant was under 18 
years 
of 
age. 
A murderer who is below 18 years of a.ge at the time of commission of the 
offence would certainly be "too young." [277G; E, Fl 
E. Anamma v. State of Andhra Pradesh, A.I.R. 1974 S.C. 799, followed. 
. ._,. 
"' 
·; 
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HARNAM v. U.P. STATE (Bhagwati, J.) 
275 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 277 of 
1974. 
Appeal by Special Leave from ·the Judgment and Order dated the 
22nd February, 1974 of the Allahabad High Court Lucknow Bench in 
Criminal Appeal No, 498 of 1973 and Capital Sentence No. 13 of 
1973. 
A. N. MuUa and N. S. Das Behal for the appellant. 
0. P. Rana for the respondent. 
The Judgment of the Court was delivered by 
BHAGWATI, J.-This appeal, by special leave, is limited only 
to 
the question of sentence. 
The appellant has been 
sentenced 
l:o 
death for an offence under s. 302 of the Penal Code. The question 
is : Should the extreme penalty of death be commuted to one of 
life imprisonment ? To answer the question it is necessary to state 
a few facts. 
The appellant and a few others were tried in the Court of the 
Sessions Judge, Unnao for offences under s. 148 and s. ·302 read 
with s. 149 of the Indian Penal Code. 
The learned Sessions Judge, 
on an appreciation of the evidence, found that the appellant, Sheo 
Dayal, Mihi Lal, Dularey and Mewa Lal had formed 
an 
unlaw-
ful assembly and in pursuance of its common object, the appellant 
had intentio

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