(i) lies in the primitive notion of vengeance

(i) Preventive Theory:

According to this theory punishment is awarded with a view to prevent the offender from repeating the offence in future. In older days the prevention was secured by disabling the offender permanently For example, for the offence of theft the hands of the offender were cut away. The death sentence is the most effective mode of preventing the offences by an offender.

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It is awarded only in those offences which are of very grave nature such as murder and treason. Now-a-days some other measures are adopted in order to secure prevention. Some such measures are forfeiture of office, suspension or cancellation of licences etc. Further preventive detention and security also are adopted to prevent the offence though these are not punitive.

(ii) Deterrent Theory:

This theory says that punishment to the wrong-doer must not only create an awe, not only in the mind of wrong-doer but in the minds of others also, so as to deter them from committing the crime. In olden days execution in the public was done only with this view.

(iii) Retributive Theory:

The origin of this theory lies in the primitive notion of vengeance against the wrong-doer. When the society progressed, crimes were considered as a wrong against the whole of the society and not only against a particular individual.

Now the State was substituted at the place of the individual and as such the State indicates the proceedings against the criminal, and is also a party in such proceedings. Now, the punishment gratifies the instinct of revenge not only of a single individual (against whom the wrong has been committed) but of the whole of the society because if a wrong of a criminal nature is committed against an individual the extension of social sympathy in his favour makes it a wrong against the whole of the society. Therefore, the society is interested in the punishment of the wrong-doer, and thus, the punishment satisfied a social instinct.

This theory considers punishment as an end in itself. It aims at restoring the social balance disturbed by the offender. The offender should receive as much pain and suffering as inflicted by him on his victim to assuage the angry sentiments of the victim and the community. This theory proceeds on practical grounds, and therefore, it concentrates upon the moral culpability of the wrong-doer. In modern times though retribution has an important place yet there is a growing tendency to regard punishment as a means to an end and not an end in itself.

(iv) Expiatory Theory:

This theory says that by undergoing punishment the crime is expiated. Ancient Hindu Law-givers like Mann and some western philosophers also, like Hegal, say that the punishment makes the criminal to expiate for the wrong-doer. This theory is based on morals.

(v) Reformative Theory:

According to this theory the purpose of punishment should be to reform the criminal and to make him a good citizen. In support of this theory Supreme Court has in Mohammad Gias Uddin v. State of U.Pobserved.

“Crime is a pathological aberration; the criminal can ordinarily be redeemed. The State has to rehabilitate rather than avenge. The subculture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human body views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence. Therefore, a therapeutic rather than an interro rem outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind”.

Similarly in Bhagirath v. Delhi Administration the Supreme Court observed thus:

“Graver the crime, longer the sentence and, longer the sentence, greater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative”.

For example reformative measures are adopted in case of juvenile offenders. The classification of offenders on the basis of age for the purposes of criminal law is now beyond reproach. This does not, however, imply that deterrent punishments have become out of context. As observed by Krishna Iyer,J., of the Supreme Court sentencing is a judicial function3 and it is, therefore, for the courts to see as to what punishment would meet the ends of justice.

In suitable cases the extreme penalty may be the only appropriate punishment for the purpose. The case of Asharfi Lai v. State of U.P.,4 is one of such examples. Appellants were convicted for the brutal murder of their two nieces aged 14 and 20 respectively to wreck their personal vengeance over the dispute they had with regard to property with the mother of the victims.

On the time of occurrence, the mother and the daughters were sleeping on different cots. The first appellant was found perched over the lower part of the body of the younger daughter pressing down her legs while the other repeatedly struck her with a gandasa and severed her neck.

Similarly, the other daughter was attacked with a banka by one of the appellant while the other chopped of the right hand of the girl with a gandasa. When she shrieked one appellant struck her on the face and upper part of the body with a gandasa. She ran from her house through the village abadi and fell down near a house and died soon thereafter.

The Supreme Court observed thus that the appellants were guilty of a heinous crime out of greed and personal vengeance and deserved the extreme penalty. It observed further that,

“this case falls within the ‘rarest of the rare cases’ formula where death penalty is the only appropriate sentence which ought to be imposed on the accused”.

It may be recalled that this ‘rarest of the rare cases’ formula was formulated in Bachan Singh v. State of Punjab, and was further elaborated in the later case of Machlii Singh v. State of Punjab. In Asharfi Lai’s case, the Supreme Court observed thus : “the punishment must fit the crime.

These were cold blooded murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment.

As a means of social necessity and also as a means of deterring other potential offenders the sentence of death is confirmed.” Brutality went a step further in the case of Ranjeet Singh v. State of Rajasthan, wherein the entire family consisting of mother, father, son and five daughters were done to death when they were fast asleep.

The Supreme Court said: “With regard to the sentence of death, there cannot be two opinions. The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined and cold blooded.

The innocent children were done to death with lethal weapons when they were fast asleep. The sentence of death awarded cannot, therefore, be said to be inappropriate.”

It may be emphasised even at the cost of repetition that protagonists of the “an eye for an eye” philosophy demand “death for death”. The ‘Humanists’ on the other hand, press for the other extreme, viz., “death-in-no-case”. A synthesis emerged in Bachan Singh v.

State of Punjab, wherein the “rarest-of-rare-cases” formula for imposing death sentence in a murder case has been evolved by the Supreme Court, which as already noted was further elaborated in Machhi Singh’s case in 1983. The guidelines laid down in this case have since been followed in a number of cases, some of which have been referred to earlier.

In two cases the Supreme Court has had again to face the problem of converting death sentence to one of life imprisonment and both of them emphasise the necessity of imposing extreme penalty. In Mahesh v. State of M.P., the Court while refusing to reduce the death sentence observed thus:

“It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect.

The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.” The second is Sevaka Perianal v. State of Tamil Nadu. This is a case of accused persons committing murders of young boys for gain as a means to living. They were awarded death sentence. In response to convert the death sentence into life imprisonment on the ground that the accused persons were young men and bread-winners of the family consisting of a young wife, minor children and aged parents, the Supreme Court categorically stated thus: “No regard for precious lives of innocent young boys was shown.

They adopted the crime of murder for gain as a means to living we find no force (in their being bread-winners etc.). These compassionate grounds would always be present in most cases and are not relevant for interference.

Thus, we find no infirmity in the (death) sentence awarded by the High Court warranting no interference.” While delivering the above-noted ratio, the Court sated in detail that, “the law regulated social interests, arbitrates conflicting claims and demands.

Security of persons and property of the people is an essential function of the State. It can be achieved through instrumentality of criminal laws. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges.

The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.

Therefore, law a corner stone of the edifice of order should meet the challenges confronting the society. Friedman in his ‘Law in Changing Society’ stated that, ‘sate of criminal law continues to be—as it should be—a decisive reflection of social consciousness of society.

‘Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be.

The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for the commission of the crime, the conduct of the accused and all other attending circumstances are all relevant facts which would enter into the area of consideration.

For instance a murder committed due to deep seated personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.” (Id. para 7). “Therefore”, the Court observed further, “undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long edure under serious threats.

If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.” (Id. para 9). It has also been held in the instant case that the doctrine of benefit of doubt does not enter in the area of consideration of imposing sentence.