RAJENDRA PRASAD KUNJUKUNJU JANARDHANAN SHEO SHANKER DUBEY Vs. STATE OF UTTAR PRADESH:STATE OF KERALA:STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 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 desperately 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 lifelong 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 nonce 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 and social, moti- vational 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, constitu- tional, inarticulately guide the court's faculty in reading the meaning of meanings in preference to a mechanistic interpretation of S. 302 Indian Penal Code projected in petrified print from Macaulay's 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 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 extenua- tion and misericordia, used in the sentencing tailpiece of judgments. There- fore, this jurisprudential exploration, within the framework of S. 302 IPC, has become necessitous, both because the awesome 'either/or' of the S. 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.