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Evolution Of Sentencing Policy Of India Post-Independence

In 1955 Amendment in Code of Criminal Procedure there was introduced amendment by Section 66 of the Code of Criminal Procedure (Amendment) Act, 1955 (XXVI of 1955) which deleted old sub-section (5) of Section 367 with effect from January 1, 1956. Thus, for capital offences, it was left to the Court, on the facts of each case, to pass, in its discretion, for reasons to be recorded, the sentence of death or the lesser sentence. Different High Courts, however, took different view, prominent amongst those were that the Bombay High Court in the State v. Vali Mohammad, AIR 1969 Bombay 294 (299) (FB), held that death is not a normal penalty for murder. As against this, the Division Bench of the Madras High Court in Valuchami Thevar, AIR 1965 Madras 48 held that death was the normal punishment where there were no extenuating circumstances.

35th Law Commission Report on Capital punishment- 1967:

Based on its analysis of the existing socio-economic cultural structures (including education levels and crime rates) and the absence of any Indian empirical research to the contrary, it concluded that the death penalty should be retained.

In Jagmohan Singh v. State of U.P., AIR 1973 SC 947 - Larger Bench Hon'ble Supreme Court held that -

The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefor, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. It was only in section 303 where death was prescribed as the only punishment for murder by person under sentence of imprisonment for life. There are several other sections in which death sentence could be imposed, but that sentence is not mandatory. Under two sections ie Section 302-murder and Section 121-waging war against the Government of India, alternative punishments of death or imprisonment for life are leviable. Two other sections in the IPC i.e. Section 397 which provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years and Section 398(2) which provides that if at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment shall not be less than seven years. As regards the rest of the offences, even those cases where the maximum punishment is the death penalty, a wide discretion to punish is given to the Judge.

Law Commission in its 48th Report (submitted on 25.7.1972) had pointed out deficiency in the sentencing procedure :

"45. It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.

The aims of sentencing:- Themselves obscure become all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about judicial approach in this regard.

We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process."

Pursuant to recommendations of the Law Commission, Section 235(2) was amended to the following effect:-

235. Judgment of acquittal or conviction. - (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."

Murlidhar Meghraj Loya v. State of Maharashtra, (SC) : AIR 1976 SC 1929

Krishna Iyer, J.- Judicial fluctuations in sentencing and societal seriousness in punishing have combined to persuade Parliament to prescribe inflexible, judge-proof, sentencing minim in the Food Adulteration law. This deprivatory punitive strategy sometimes inflicts harsher-than-deserved compulsory imprisonment on lighter offenders, the situation being beyond judicial discretion even if prosecution and accused consent to an ameliorative course.

Denouncing the policy of leaving no discretion with the court it was emphasized that the sentencing policy has a punitive and a correctional role and we are sure that what is the need of the appellants will be meted out to them if they deserve any activist administrative sympathy at all.

In Santa Singh v State of Punjab - AIR 1976 SC 2386

Hon'ble Apex Court referred to recommendation of 48th Report the Law Commission that the accused must have a right to make a representation against the sentence to be imposed after the judgment of conviction had been passed on the basis of which Section 235(2) was amended in 1973 to the following effect:-

"235 (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."

It was held that the statute, in my view, seeks to achieve a socio-economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society.

In Shiv Mohan Singh v State of Delhi - AIR 1977 SC 949 Hon'ble Apex Court held that the heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, especially social pressures which induce the crime which we may epitiomised as a 'just sentence in an unjust society' are another consideration. The criminal, not the crime, must figure prominently in shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weightily factors.

In Satto v State of Pb. AIR 1979 SC 1519 Hon'ble Supreme Court while dealing with a rape case by a juvenile held that

"....the current Indian ethos and standards of punitive deterrence make rape a heinous offence. The offenders, however, are children and the dilemmantic issue is to fix the sentencing guidelines when juvenile delinquents come before the court. 'Justice and the Child' is a distinct jurisprudential-criminological branch of socio-legal speciality which is still in its infant status in India and many other countries. The Children Act is a preliminary exercise; the Borstal School is an experiment in reformation and even Section 360, Criminal Procedure Code, 1973 tends in the same direction. Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of criminal justice. Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental concern of the State for its child-citizens including juvenile delinqents. The penal pharmacopoea of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment. This is the central problem of sentencing policy when juveniles are found guilty of delinquency....."

In a landmark judicial pronouncement in case reported as Bachan Singh v. State of Punjab, (SC) AIR 1980 SC 898 (Larger Bench), Hon'ble Supreme Court dealt with the issue -

"whether this Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders....."

Hon'ble Supreme Court held that it was not possible to categorise types of murder and to lay down standards. However, some of aggravating circumstances and mitigating circumstances were laid down as an indication for imposition of extreme penalty.

Hon'ble Supreme Court referred to Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, and the "aggravating circumstances" set out by Dr. Chitale were broadly accepted with the observation that there is no fetters on judicial discretion:

"Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion :

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."

Dr. Chitaley had suggested these mitigating factors :

"Mitigating circumstances :- 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. It the accused is young or old, he shall not be sentenced to death.

(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 conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."

In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, Hon'ble Supreme Court formulated the following two questions to be considered as a test to determine the rarest of the rare cases in which the death sentence can be inflicted:

"(a) Is there something uncommon, which renders sentence for imprisonment for life inadequate calls for death sentence?

(b) Rather the circumstances of the crime such that there is no alternative, but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender?"

The circumstances in which death sentence may be imposed for the crime of murder and held as follows:-

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 of the community.

II. Motive for commission of murder

When the murder is committed for a motive which evinces total depravity and meanness.

III. Anti-social or socially abhorrent nature of the crime

When murder of a member of a Scheduled Caste or minority community or bride burning etc., is committed which arouse social wrath.

IV. Magnitude of crime

When multiple murders are committed and the crime is enormous in proportion.

V. Personality 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) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-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 ....."

It was thus held that the extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability. Such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability.

Similarly in case reported as Govind Ramji Jadhav v State of Maharashtra - 1990(4) SCC 718, it was held that one of the main objects of the sentencing policy is that where the sentence awarded by the Subordinate Courts is grossly inadequate or unconscionably lenient or 'flea bite' or is not commensurate with the gravity of the offence the High Court has the power of enhancing the sentence both in its revisional and appellate jurisdiction subject to the provisos (1) and (2) to Section 386 of the Code.

In case State of Gujarat v. Hon'ble High Court of Gujarat, (SC) - AIR 1998 SC 3164 the issue before Hon'ble Supreme court was that the convicts who awarded with rigorous imprisonment are made to render hard labour should be paid wages for the labour they put in. While referring to Theory of reformation through punishment is grounded on the sublime philosophy that every man is born good but circumstances transform him into a criminal, his rehabilitation after completion of sentence and Constitutional provisions as to prohibition of "begar" it was held that wages must be paid to the prisoners rendering hard labour.

Hon'ble Supreme Court also noticed the trend in sentencing policy to listen to the wailings of the victims. Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence. A glimpse at the field of victimology reveals two types of victims. First type consists of direct victims i.e. those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. Second type comprises of indirect victims who are dependants of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner. Being conscious of Restorative and reparative theories following norms were laid down:

(1) It is lawful to employ the prisoner sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.

(2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose.

(3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State do so as early as possible.

(4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report to this Court of compliance of this direction.

(5) We recommend to the State concerned to make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.

State of Karnataka v. Krishnappa, 2000(4) SCC 75 Hon'ble supreme Court in a case relating to rape recorded that "rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and Courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. Referring to imposition of punishment in such cases, it was opined :

"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

In the 187th Report on the Mode of Execution (2003) of those convicted with death sentence.

Referring to the preamble, definition of expression `atrocities' and punishments it was held that sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

In Phoolwati v. State of Haryana (SC) : 2013(3) CCR 160 while referring to large number of judicial pronouncements it was held that where death sentence seems to be excessive and unduly harsh and life imprisonment is highly disproportionally inadequate, the court may find out a via media and instead of giving or confirming the death sentence awarded by the trial court may award a particular period of punishment as in a particular case, 14 years or 20 years may be found to be too less considering the gravity of the offence. The court may further impose a condition that State authorities will not grant them the benefit of remission and may not consider the case of premature release as per the sentencing policy adopted by the State.

In State of Haryana v. Jagdish, (2010) 4 SCC 216, Hon'ble Supreme Court dealt with the issue of clemency power elaborately and held that such powers are unfettered and absolute. Where the State authority frames rules under Article 161 of the Constitution, the case of the convict is required to be considered under the said rules. Even if the life convict does not satisfy the requirements of the remission rules or of the short sentencing scheme, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency vested in them, under the provisions of Articles 72 and 161 of the Constitution and the order of the Court in such an eventuality always remains subject to the clemency powers.

In the case relating to corruption Shanti Lal Meena v. State of NCT of Delhi, CBI (SC) AIR 2015 SC 2678, it was noticed that the punishments under Sections 8, 9, 10, 11 of the PC Act, 1988 were minimum six months extendable to five years with fine and under Section 14 of the Act, it was minimum two years extendable to seven years and fine. After analysis of the provisions on punishment under the PC Act it was held that there is a clear indication on the penal philosophy of deterrence conceived by the Parliament which intended to restrict the discretion of the courts while imposing the sentence for offences under the Prevention of Corruption Act.

In State of Madhya Pradesh v. Bablu, 2015(1) RCR (Criminal) 761 : 2015(1) Recent Apex Judgments (R.A.J.) 380 : (2014)9 SCC 281, it was held as follows :

"10. It is well-settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and nature of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers."

In Hazara Singh v. Raj Kumar and others, 2013(2) RCR (Criminal) 851 : 2013(3) Recent Apex Judgments (R.A.J.) 86 : (2013)9 SCC 516, this Court took the view that . "the cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence."

In State of Punjab v. Saurabh Bakshi, 2015(2) RCR (Criminal) 495 : 2015(2) Recent Apex Judgments (R.A.J.) 468 : (2015) 5 SCC 182, Supreme Court has observed thus:

"Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilised persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304A I.P.C. We say so with immense anguish."

LAW COMMISSION OF INDIA Report No.262 The Death Penalty August 2015 -

Need for re-examining the 35th Report - The Commission's conclusion in the 35th Report that "at the present juncture, India cannot risk the experiment of abolition of capital punishment," and its recommendation that "capital punishment should be retained in the present state of the country", were clearly dependent on, and qualified by, the conditions that prevailed in India at that point in time. A great deal has changed in India, and indeed around the world, since December 1967, so much so that a fresh look at the issue in the contemporary context has become desirable. Six factors require special mention.

(i) Development in India -

The Commission's conclusions in the 35th Report rejecting the abolition of capital punishment were linked to the "conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country."

Nevertheless, education, general well-being, and social and economic conditions are vastly different today from those prevailing at the time of writing the 35th Report. For example, per capita Net National Income at constant prices, based on the 2004-2005 series was Rs. 1838.5 in 2011 - 2012, while it was Rs. 191.9 in 1967-1968.13 Similarly, adult literacy was 24.02% in 196114 and 74.0% in 2011, 15 and life expectancy (a product of nutrition, health care, etc.) was 47.1 years in 1965-197016 and 64.9 years in 2010-2015. The state of the country and its inhabitants has thus changed significantly.

Further, the 35th Report justified its hesitation in "risk[ing] the experiment of abolition," "at the present juncture," on the prevailing (high) crime rate. It expressed its concern in the following manner:

The figures of homicide in India during the several years have not shown any marked decline. The rate of homicide per million of the population is considerably higher in India than in many of the countries where capital punishment has been abolished.

However, according to the Crime in India reports, published by the National Crime Records Bureau (`NCRB`) under the aegis of the Ministry of Home Affairs, the murder rate has been in continuous and uninterrupted decline since 1992, when it was 4.6 per lakh of population. As per the latest figures for 2013, the murder rate is 2.7 per lakh of population, after having fallen further from 2012, when it was 2.8. This decline in the murder rate has coincided with a corresponding decline in the rate of executions, thus raising questions about whether the death penalty has any greater deterrent effect than life imprisonment.

It is evident that the socio-economic and cultural conditions in India, which had influenced the Commission in formulating its conclusions in the 35th Report, have changed considerably since 1967.

(ii) The new Code of Criminal Procedure in 1973 -

The Commission's recommendations in the 35th Report predate the current Code of Criminal Procedure (`CrPC'), which was enacted in 1973. This resulted in an amendment to Section 354(3), requiring "special reasons" to be given when the death sentence was imposed for an offence where the punishment could be life imprisonment or death.

Pertinently, the Report also recommended that Section 303 of the Indian Penal Code, remain unchanged though subsequently this provision was held unconstitutional in Mithu v. State of Punjab, AIR 1983 SC 473 and that there was no requirement for a minimum interval between the death sentence and the actual execution (subsequently made 14 days in Shatrughan Chauhan v. Union of India (2014) 3 SCC 1).

Such developments emphasise the importance of relooking at the Report.

(iii) The emergence of constitutional due process standards Post-1967, India has witnessed an expansion of the interpretation of Article 21 of the Constitution of India, reading into the right to dignity and substantive and due process. Most famously, Maneka Gandhi v Union of India, AIR 1978 SC 597, held that the procedure prescribed by law has to be "fair, just and reasonable, not fanciful, oppressive or arbitrary."

Subsequently, in Bachan Singh, the Court observed that Section 354(3) of the CrPC, 1973, is part of the due process framework on the death penalty.

(iv) Judicial developments on the arbitrary and subjective application of the death penalty

Despite the Court's optimism in Bachan Singh that its guidelines will minimise the risk of arbitrary imposition of the death penalty, there remain concerns that capital punishment is "arbitrarily or freakishly imposed". In Santosh Kumar Satishbushan Bariyar v. State of Maharashtra (SC), (2009)2 SCC (Cri.) 1150, the Court held that "there is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle." The Supreme Court has itself admitted errors in the application of the death penalty in various cases.

(v) Recent Political Developments -

In August 2015, the Tripura Assembly voted in favour of a resolution seeking the abolition of the death penalty. Demands for the abolition of the death penalty have been made by the (CPI), the CPI (M), the CPI (Marxist - Leninist Liberation) and various other. On 31st July, 2015, D. Raja of the CPI introduced a Private Member's Bill asking the Government to declare a moratorium on death sentences pending abolition of the death penalty. In August 2015, DMK Member of Parliament Kanimozhi introduced a private member's bill in the Rajya Sabha seeking abolition of capital punishment.

(vi) International Developments -

In 1967, when the 35th Report was presented, only 12 countries had abolished capital punishment. Today, 140 countries have abolished the death penalty in law or in practice. Further, the number of countries that have remained "active retentionists", the execution has fallen drastically. The issues relating to capital sentencing and the move towards the abolition of the death penalty internationally subsequent to the publication of the 35th Report deserve detailed consideration.

While we stand at this juncture awaiting abolition of death penalty, the recent emphasis is on to strike balance between the criminal and the victim. In case reported as Ravi S/o Ashok Ghumare v. State of Maharashtra (SC) AIR 2019 SC 5170, Hon'ble Supreme Court held as under:-

"51. Equally important is the stand-point of a 'victim' which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The 'victim'- the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish 'crime' would surreptitiously turn its back on the 'victim' of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a 'victim' in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.

52. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights - the right to life.

57. It is equally apt at this stage to refer the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019 as notified on 6th August, 2019. The unamended Act defines "Aggravated Penetrative Sexual Assault" in Section 5, which included, "whoever commits aggravated penetrative sexual assault on a child below the age of 12 years." Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine.

58. The recent amendment in Section 6 of 2012 Act has substituted the punishment as follows:-

"Post the Amendment, Section 6 has been substituted as follows:-

"6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

59. The minimum sentence for an aggravated penetrative sexual assault has been thus increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person. Significantly, 'death sentence' has also been introduced as a penalty for the offence of aggravated penetrative sexual assault on a child below 12 years.

60. The Legislature has impliedly distanced itself from the propounders of "No-Death Sentence" in "No Circumstances" theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, 'death penalty' can also be imposed. In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that "in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country." If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised."

Thus, even though education, general well-being, and social and economic conditions of the country are vastly different now vis-a-vis 1967 we still have long to wait for abolition of death sentence.

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