This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article discusses about Section 302 of the Indian Penal Code which deals with punishment for murder.

This article has been published by Shoronya Banerjee.

Introduction 

Killing someone is one of the worst things that a person can do. To ensure that such an act is not spared and is met with serious consequences, there are stringent legal provisions in place. One such provision is Section 302 of the Indian Penal Code, 1860 which talks about the punishment for murder.

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Punishment for murder  

Section 300 of the Indian Penal Code 1860 talks about the offence of murder. However, the offender is punished under Section 302 of the Code. This Section states that a person committing a murder shall be punished with a death sentence or life imprisonment, and also be liable to pay a fine. This Section extends to everyone irrespective of their sex. It even applies to a public servant who due to selfish intentions kills someone. The IPC does not exempt anyone from the offence of murder. Section 302 clearly states, “Whoever commits murder.” Further, the offence of murder is non-bailable and non-compoundable.

This Section talks about two kinds of punishment: death sentence and life imprisonment. If one of these punishments is imposed, then the offender shall also be liable to pay a fine. The death sentence, imprisonment, and fine are also mentioned in Section 53 of the IPC which talks about the kinds of punishment.

Death sentence

Section 302 of the IPC talks about punishing the person who commits murder with the death penalty. The object of punishing an offender is to ensure that he/she doesn’t repeat the offence and transforms into a good human being. However, there are certain heinous crimes for which death is the only alternative. This is known as capital punishment. Capital punishment is one of the oldest forms of punishment. It is the execution of an offender under due process of the law. Section 367(5) of the 1898 Code of Criminal Procedure made it necessary for the courts to pass a death sentence in cases of murder. After the amendment in 1955, this Section was deleted and the court was not obliged to give any reasons for imposing the death penalty.  

Death sentence under the IPC is given according to the principle of ‘rarest of rare cases.’ This principle was first introduced in the case of Bachan Singh v. State of Punjab (1980), in which the accused was guilty of murdering three people. Section 354(3) of the Code of Criminal Procedure 1973 states that if an offence is to be punished with death, then the court must give special reasons for the same. Hence the court by a majority observed that the death penalty is an exception to the punishments mentioned under the Indian Penal Code, and should be given only in rarest of rare cases. However, which offence shall come under this principle has not yet been clarified. This is the reason why capital punishment has been a highly contested debate, with critics arguing that the states and the judiciary should not have the right to execute someone. The main concern of the courts has been in figuring out whether a death sentence should be imposed based on the crime or actions of the criminal. It is up to the judge to decide a case of a death sentence. 

Life imprisonment

Imprisonment is like an instant reaction to a crime committed. It is one of the simplest forms of punishment. Section 53 of the IPC mentions three kinds of imprisonment including simple imprisonment, life imprisonment, and rigorous imprisonment. Life imprisonment means that the person stays in prison for the rest of his/her life or until pardoned. Life imprisonment is imposed on crimes of great magnitude like murder. Life imprisonment is not as gruesome as a death sentence but still has a drastic impact on the accused.

Fine

Section 302 of the IPC punishes the offence of murder with death or life imprisonment along with a fine. Hence, a fine is used as an additional form of punishment. Fine is also used as the main form of punishment for small crimes like embezzlement, fraud, gambling, etc. The amount to be paid as a fine varies according to the magnitude of the offence committed. So it is left with the courts to decide the quantum of the fine.

Essential ingredients of murder

Section 302 of the IPC doesn’t clarify when these three above-mentioned punishments shall be imposed. However, Section 300 of the IPC mentions three instances if fulfilled, shall be termed as murder. They are:

  • The act must be done with the intention to kill someone and cause death. An intentional omission is also included here. For example, A stabs B with a knife, with an intention to kill him. B dies, A has committed murder.
  • The act is done with the intention to cause bodily injury and such bodily injury is likely to result in death.
  • If the act is done having proper knowledge that it will cause death, such an act shall be termed as murder.

When is Section 302 IPC not applicable?

Punishment under Section 302 of the IPC shall not apply if any of the conditions mentioned above are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the IPC mentions certain exceptions for the offence of murder, which are as follows:

  • If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won’t amount to murder.
  • When a person under the right of private defence causes the death of the person against whom he has exercised this right without any intention, Section 302 will not be applicable.
  • If a public servant, while discharging his duty and having lawful intention, causes the death of a person this Section will not be applicable.

All these three exceptions mentioned above shall come under Section 304 and will be termed as culpable homicide not amounting to murder.

Constitutional validity of Section 302 IPC

The Jagmohan Singh case

The legality of the death sentence punishment under Section 302 of the IPC was challenged for the first time in the case of Jagmohan Singh v. State of U.P (1972). Family quarrels between cousins led to the death of one Chottey Singh. The appellant (Jagmohan Singh) was charged with the murder and sentenced to death under Section 302 of the IPC. The Allahabad High Court had confirmed the conviction. The appeal went to the Supreme Court and the main contention before the Court was that the punishment of death sentence under Section 302, is violative of certain fundamental rights including Article 14 and Article 21 of the Indian Constitution. It was argued that the judges’ discretion to grant the death penalty or life imprisonment, is violative of Article 14. Section 302 does not provide for a choice between the death penalty and life imprisonment, so it was violative of Article 21. The Court while rejecting these contentions raised by the appellant, laid down the following observations:

  • The general policy under the Indian Penal Code and the Code of Criminal Procedure is to impose maximum punishment for an offence, so to decide the degree of punishment the Judges are allowed wide discretion. The view taken by the Judges should be after considering all the circumstances of the crime.
  • Any decision taken by the subordinate Courts is corrected by the Higher Courts. So there won’t be any discrimination since the circumstances arising in every crime are different. So Section 302 is not violative of Article 14.
  • Further, while answering the question of whether the current provision is violative of Article 21, the Court observed that every case is proved depending on the facts and circumstances. The trial does not come to an end until all the facts are proved and both parties to the case have addressed their point of view. Hence there is a due process of the law and unless proven invalid, the provisions shall be valid. Hence, the provision of death penalty is not constitutionally invalid, so is not violative of Article 21. Hence the Court held that Section 302 is not constitutionally violative of any fundamental rights.

After this landmark judgment, the Code of Criminal Procedure 1898 was replaced by the Code of Criminal Procedure 1973. This Code regulates the punishment of death sentences under Section 354(3) and Section 235(2).

The Bachan Singh case

In the case of Bachan Singh v. State of Punjab (1980), apart from introducing the doctrine of rarest of rare cases, the constitutional validity of Section 302 IPC was also tested. It was observed that the Jagmohan Singh case has to be reconsidered. The focus has to be shifted from the criminal to the crime. It was observed that Section 354(3) of the Code of Criminal Procedure 1973, and Section 302 of the IPC, are not constitutionally invalid because if the sentencing discretion granted to the judges is taken away, then it would result in unfair delivery of justice. It was held that the death penalty as an alternative punishment is not unreasonable and does not have to pass the test of Article 19(1), Article 21, and Article 14 of the Indian Constitution. The Bachan Singh verdict still holds the truth and the death penalty is given in the rarest of rare cases.

Death penalty scenario post the Bachan Singh verdict

Apart from these two landmark verdicts, there are certain entries including entries 1 and 2 (Criminal law and criminal procedure) in the Concurrent List that show the existence of the punishment of the death penalty. Hence the makers of our Constitution were fully aware of the punishment of the death penalty. So it cannot be said that this provision violates the Indian Constitution. In the case of Kehar Singh v. Union of India (1988), the constitutional validity of imposing the death sentence was tested. The Court relied upon the Bacchan Singh case and observed that this provision was constitutionally valid. In the case of Shashi Nayar v. Union of India (1991), the Court observed that the punishment of death sentence is reasonable and not violative of Article 14 of the Indian Constitution.

After the Bachan Singh landmark verdict, the death penalty under Section 302 is strictly awarded according to the doctrine of rarest of rare cases. In the case of Macchi Singh v. State of Punjab (1983), the court went a little deeper to determine the rarest of the rare cases. It laid down certain guidelines relating to how the murder was committed, the motive for murder, the intensity of the crime, and the anti-social nature of the crime. In a recent judgment in 2018 (Channulal v State of Chattisgarh), the Court observed that as the punishment of the death penalty was upheld in the Bachan Singh case in 1980, there is no need to re-visit or re-examine it. It is necessary to use the death sentence as a form of punishment.

Another path-breaking verdict was given in the case of Mukesh and Anr. v State of N.C.T Delhi (2012) also known as the Nirbhaya Gang Rape Case. A young girl was brutally gang-raped in 2012. The Court awarded the death penalty to the four accused eight years after the incident took place. Hence this case became a classic example of the phrase “justice delayed is justice denied” and brought a change in the provision of the death penalty under Section 302 as the death penalty is now given in cases where the offence of rape leads to the death of the victim. Since 2000, eight people have been sentenced to death and hanged, the recent ones being the four convicts in the Nirbhaya case. Since the Nirbhaya verdict around 50% of the death penalties is related to sexual offences. Hence despite strong efforts from the United Nations and other international institutions in abolishing the punishment of the death penalty across the globe, the recent trend in India shows that the imposition of the death penalty is still very much valid. It is one of the 56 countries to continue the practice of the death sentence while 142 countries have abolished it.

Applicability of Section 302 with other offences under IPC

The offence of murder has stringent and gruesome provisions under the Indian criminal law. Despite being one of the most important sections of the IPC, Section 302 is also very technical. Punishment under Section 302 is not imposed just by establishing the fact that someone has killed a person. There are various other factors involved like intention, motive, bodily injuries leading to death, a murder weapon, etc. Another significant feature of this Section is its applicability with certain offences mentioned under the IPC, which are as follows:

Section 34 IPC read with Section 302 IPC

Section 34 of the IPC talks about common intention. When a criminal act is done by two or more persons with a common intention, then all those persons shall be liable for the act. Here the question arises as to what happens if the criminal act is murder? Who will be liable? So the accused person charged under Section 34, can be held liable under Section 302. Let’s say two out of the three accused have been charged under Section 302 read with Section 34. Now for the third person to be charged under this provision his individual liability has to be established.

In the case of State of U.P v. Kapil Deo & Anr. (1991), the respondents (Kapil Deo & Anr.) were charged under Section 302 read with Section 34 of the IPC for causing the death of their domestic help. There were four accused of which one of them was convicted under Section 302 and the three others were convicted under Section 302 read with Section 34. The main accused who was convicted under Section 302 filed an appeal against his conviction in the High Court. The Court observed that the main accused was not the only person present during the crime scene and hence he is not solely responsible for the murder. Another appeal was filed against the conviction of the other three accused under Section 302 read with Section 34. To this, the Court opined that there was no evidence to show the three accused had committed the murder in furtherance of common intention. Hence, the High Court acquitted the main accused from the charge of section 302 and also acquitted the remaining three persons who were accused under Section 302 read with Section 34.

In the case of Krishna Govind Patil v. State of Maharashtra (1963), an important observation is that all the accused in a murder case except one can be acquitted under Section 302 read with Section 34 of the IPC was laid down by the Court. In this case, four people were charged under Section 302 read with Section 34. Three of the accused were acquitted by the High Court, but one of them was charged under this Section. The trial went to the Supreme Court who observed that if there was any other person involved in the act, then it could have been said that he shared common intention with the main accused and hence could have been acquitted but in this case, no one else was involved. Hence the Supreme Court upheld the acquittal of the three accused.

Section 149 IPC read with Section 302 IPC

Section 149 of the IPC talks about unlawful assembly. If any member of an unlawful assembly commits an offence as a result of a common object of the assembly, and every person involved from that assembly who was present at the time of the offence, shall be guilty under this Section. Once the common object of an unlawful assembly is proved, all members shall automatically be guilty. Vicarious liability created on the other members of the assembly depends on the fact whether they knew that the offence was likely to be committed.  If an injury is caused to the victim when provoked by one of the members of the assembly, the rest of the members cannot be charged under Section 302. Section 302 read with Section 149 shall be applicable only when the injury is caused in pursuance of a common object to kill the victim.

In the case of Mohd. Shoaib @ Chutwa v. State (2022), the petitioner (Mohd. Shoaib) is seeking bail in the FIR filed against him. During the protests against the Citizenship Amendment Act 2019, the rioters burned down a sweet shop. When the witness (Himanshu) arrived at the scene, he saw a dead body who was identified as a waiter in the sweet shop. Hence the petitioner’s name was implicated in the charge sheet for the murder of the waiter. The petitioner argued that he was falsely accused and so is seeking bail. The Court observed that in order to charge a person under Section 302 read with Section 149 of the IPC, the unlawful common object must be proved with sufficient facts and circumstances. If there is no proper evidence, then the offence cannot be charged. Hence the Court held that Section 302 read with Section 149 cannot be imposed on allegations and assumptions.

Miscellaneous provisions of Section 302 IPC

Let us discuss some of the other issues that people might confront while dealing with Section 302 of the IPC.

Can a minor be convicted under Section 302 IPC

Almost every legal enactment in India has a provision for minors. It is important to take due care while dealing with a case involving a minor. So can minors be punished for murder? According to Section 82 of the IPC, a child below the age of seven years cannot be charged for any offence.

The Juvenile Justice (Care and Protection of Children) Act 2015, treated children aged 16 to 18 years as adults when charged with heinous crimes. This Act further mentions that no child can be sentenced to life imprisonment or death penalty under the Indian Penal Code or any other law which prescribes this punishment without the possibility of him/her getting released. The juvenile can be sentenced to a maximum term of 14 years.

In the case Shivam(minor) v. State of U.P and Anr. (2019), the appellant Shivam was charged with murder under Section 302 of the IPC. The appellant argued that he is a juvenile and the Juvenile Justice Board has determined his age as below 18 years. So he argued that he was falsely implicated and hence sought bail. The Court referred to Section 15 of the Juvenile Justice (Care and Protection) Act 2015, which states that the Juvenile Justice Board must conduct an inquiry examining the circumstances of the offence committed by the child who has attained 16 years and is charged with a heinous crime. Further, the grant for bail must show that it is against the interest of the child. In the present case, the appellant-accused does not have any specific role in the offence. Hence the Court granted bail to the appellant.

Conviction of a public servant under Section 302 IPC

A public servant cannot be tried under Section 302 of the IPC without the sanction for prosecution mentioned under Section 197 of the Code of Criminal Procedure 1973. This provision states that if a public servant has committed an offence while discharging his duties, then he can get prosecuted only when a sanction is granted by a higher authority.

Bail application under Section 302 IPC

Murder is one of the worst crimes that a person can commit. So murder is a non-bailable and non-compoundable offence, which means it can be punished with death or life imprisonment. Hence granting bail under this Section is very difficult. However, the accused can file a bail application but if the facts and circumstances are proving against him, then bail cannot be granted. The time limit for filing a bail application for an offence punishable with a death sentence or life imprisonment is 90 days. If the bail application is rejected, the accused can file a review petition before the Judge to review the application. A person who has surrendered for committing murder cannot be exempted from this section. He can file for bail but it is unlikely to get accepted as he himself has surrendered to the offence.

Conclusion

Section 302 of the IPC is a very detailed provision. Punishing an offender for murder might sound straightforward, but there are a lot of aspects to be considered. The most important of them is the problem of deciding whether to award a death sentence or life imprisonment. Further, as murder is a non-bailable offence, pleading not guilty and hoping for the bail application to be accepted also becomes difficult. So it is important for the Courts to rely on and examine the facts and circumstances of each case thoroughly while dealing with Section 302.

References

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