JUDGMENT

Kurian, J.:

1. Death and if not life, death or life, life and if not death, is the swinging progression of the criminal jurisprudence in India as far as capital punishment is concerned. The Code of Criminal Procedure, 1898, under Section 367(5) reads: “If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.” (Emphasis supplied)

This provision making death the rule was omitted by Act 26 of 1955.

2. There have been extensive discussions and studies on abolition of capital punishment during the first decade of our Constitution and the Parliament itself, at one stage had desired to have the views of the Law Commission of India and, accordingly, the Commission submitted a detailed report, Report No. 35 on 19.12.1967. A reference to the introduction to the 35th Report of the Law Commission will be relevant for our discussion. To quote:

“A resolution was moved in the Lok Sabha on 21st April, 1962, for the abolition of Capital Punishment. In the course of the debate on the resolution, suggestions were made that a commissi