Judgment

KRISHNA IYER, J. (for himself and on behalf of Desai J. - Majority view):- THE DEADLY QUANDARY: To be or not to be: that is the question of lethal import and legal moment, in each of these three appeals where leave is confined to the issue of the propriety of the impost of capital penalty against which the brutal culprits desparately beseech that their dear life be spared by the Summit Court and the incarceratory alternative be awarded instead. There is, as here, a judicial dimension to the quasi-Hamletian dilemma when "a murder most foul" demands of sentencing justice punitive infliction of death or the lesser punishment of life imprisonment, since the Penal Code leaves the critical choice between physical liquidation and life-long incarceration to the enlightened conscience and sensitized judgment of the Court.

2. A narration of facts is normally necessary at this early stage but we relegate it to a later part, assuming for the none the monstrosity of the murder in each case. Is mere shock at the horrendous killing sufficient alibi to extinguish one more life, de hors circumstances, individual an social, motivational and psychical? The crime and the criminal, contemporary societal crises, opinions of builders and moulders of the nation, cultural winds of world change and other profound factors, spiritual and secular, and above all, constitutional, inarticulately guide the Courts faculty in reading the meaning of meanings in preference to a mechanistic interpretation of Section 302, I.P.C. projected in petrified print from Macaulays vintage mint.

3. We banish possible confusion about the precise issue before us - it is not the constitutionality of the provision for death penalty, but only the canalisation of the sentencing discretion in a competing situation. The former problem is now beyond forensic doubt after Jagmohan Singh, (1973) 1 SCC 20: and the latter is in critical need of tangible guidelines, at once constitutional and functional. The law reports reveal the impressionistic and unpredictable notes struck by some decisions and the occasional vocabulary of horror and terror, of extenuation and misericordia, used in the sentencing tail-piece of judgments. Therefore, this jurisprudential exploration, within the framework of S. 302 I. P. C., has become necessitous, both because the awesome either/or of the section spells out no specific indicators and law in this fatal area cannot afford to be conjectural. Guided missiles, with lethal potential, in unguided hands, even judicial, is a grave risk where the peril is mortal though tempered by the appellate process. The core question - the only question - that occupies our attention, within the confines of the Code, is as to when and why shall capital sentence be pronounced on a murderer and why not in other cases.

4. The penological poignancy and urgency of the solution is obvious since the human stakes are high, and error, even judicial error, silences for ever a living being and despatches him to that undiscovered country from whose bourn no traveller returns: nor once executed, can storied urn or animated bust back to its mansion call the fleeting breath. The macabre irrevocability of the extreme penalty makes the sombre issue before us too important to be relegated, as often happens, to a farewell paragraph with focus on frightful features of the crime and less stress on the crime-doer and related factors. When human rights jurisprudence and constitutional protections have escalated to sublime levels in our country and heightened awareness of the gravity of death penalty is growing all over the civilised globe in our half-century, is it right to leave S. 302 I. P. C. in vague duality and value-free neutrality? Any academic who has monitored Indian sentencing precedents on murder may awaken to the overt ambivalence and covert conflict among judges concerning continued resort to the death sentence which,according to Prof. Blackshield, *1 seems to mirror the uncertainti