In the address of Kaninka Bhardvaja," danda is first conceived in general terms to be a fundamental political principle and a guard of the security of person and property as well as stability of the social order. Secondly, the key to this function is the principle that fear of danda is the grand motive for the individual's obedience to authority. Then, the purpose of the Divine ordination of danda in the kings favour is stated to be the fulﬁlment of law. Thirdly, the qualiﬁcations required for the king's use of danda are discrimination and impartiality. At one place, Bhishmat asked the king to slay without hesitation a person acting against the interest of his kingdom, whoever he may be. At another place?  These passages are referred to in order to show the emphasis placed in those times on protection of society.'' In the Buddhist Sanskrit and late Pali texts, one ﬁnds references relating to death sentence. One work states. that the king is one who rules and guides the world; he cen- sures, ﬁnes and executes the man who transgresses his commands; ruling in righteousness, he becomes clear to his people.7 In another work,8 Asvaghosha states, that after the birth of Buddha, Buddha's follower Shuddhodhana. while not executing criminals, kept them under mild restraint, as their release would not have been good policy."
Asoka does not seem to have abolished capital punish- mentm But it is stated," that the greatest king of the Sata- vahana dynasty, Gautamiputra Satakarni, refrained from I. Ghoshal, A History of Itaian Political Ideas, (1959), page
206.
2. Mahabharat XXII, I21.
3. Mahabharata XII, I38 ; see also U. N. Ghoshal, A History of Indian Political Ideas, (1959), page 206.
4. Mahabharata XII, 57, 5-7.
. Mahabharata XIII, 61, 31-33.
. Nagasena, Milinda-Patiha, IV, 5.27.
. U. N. Ghoshal, A History of Indian Political, Ideas, (1959), page 265. . Ashvadghosha Buddhacharita Il, I-I6.
9. U. N. Ghoshal, A History of Indian Political Ideas, (1959), page 267 ; citing the Buddhacharita ,' see also E. H. Johnson, Translation of this work, page 28, note.
10. Material relating to Asoka is discussed in detail separa:ely.
11. U. N. Ghoshal, A History of Indian Political Ideas, (1959), pages 295-296.
O0\l O\Ul 197 hurting the life even of an offending enemy, and that Rudradaman of the Saka dynasty never took life except in battle.
D. Principles of Punishment in Hindu Law The principles of punishment have been well put by Kautilya} Punishment, if too severe, alarm men; it too mild, it frustrates itself. Punishment, according to deserts should be encouraged. Punishment, properly determined and awarded, makes the subjects conform to dharma (right), artha (wealth) and lcama (desire). When improperly awarded due to ignorance, under the inﬂuence of lust and anger, it enrages even hermitg and (religious) mendicants, not to speak of householders. Punishment unawarded would verily foster the regime of the ﬁsh i.e. in the absence of the upholder of law the strong would swallow up the weak. Protected by the upholder they would prosper.
A good summing up of the objects of punishment as conceived in the Hindu period is found in a recent study."
'If we analyse the implied and explicit purposes of punishment. we find that punishment was conceived, First, as a deterrent measures calculated to strike fear into the hearts of the criminally minded and to check their immoral and anti--social passions. This purpose was served particularly by disproportionately severe punishment and by "branding", "parading" and publiciz- ing punishment. The second object was the prevention of the possibility of the cu1prit's repeating the crime. So, the culprit was imprisoned, fettered, killed, or exil- ed. Retribution may be said to be the third motive of punishment in two dii'fer::nt senses: retaliation, and making the wrongdoer suifer the fruits of his own i«:u"rma. The first is particularly noticed in the mutila- ticn of that very limb by which the wrong was done (e.g. cutting off ﬁngers or hand of a thief, the tongue of a defamer). Punishments, fourthly, are conceived to be an educative, and, therefore, a reformative process also. Sukra points out that, consistent with the Vedic teaching of non-injury to life. a culprit should be edu- cated (siksayet) and made to work. He takes a very modern socio-psychological View when he says (4.1.110): "Such persons were corrupted by bad company. The king should punish them and always educate them back on to the right path." But punishment was thought to be, not only reformative, but also purificatory in a moral sense. This is more evident in the fact that punishment also included different forms of repentance, _"i.4 Kautilya, cited in Dr. P. K. Sen, " Penology old and new' (Tagore Law lectures 1929), (1943 Edn.), page 104.
2. D. M. Dutta, "Political. Legal and Economic Thought in Indian Perspective", in Moore (Editor) Philosophy and Culture---:East and West, University of Hawaii, 1962), pages 569, 591.
198confession, prayer, penitential starvation, and long periods of penance (e.g. a Brahmin, while spared capi- tal punishment, had to live even as long as twelve years in the forest in austerity and celibacy to atone for murder)'.
E. Classiﬁcation of Punishment in Hindu Law The classiﬁcation of punishment in Hindu Law has been elaborately explained by Dr. P. K. Sen} 'The chapter headed Dandabhedah deals with the usual four-fold classiﬁcation based on the text of Brhaspati: Vag-Dancla, Dhig-danda, Dhana-danda and Vadha-danda.
"Vag dhig dhanam vadhas caiva caturdha Kathito dameh, Purusam vibhavam dosam J natva tam parikalpayet;
Brhaspati"
"Punishment is four-fold, namely, admonition, re- proof, ﬁne and corporal. It should be meted out after considering the offender, his pecuniary condition, and the crime committed by him."
The ﬁrst, Vag-dcmda, may be taken to mean punishing with words i.e. giving a solemn warning such as "Thou hast acted most improperly." The second, Dhig-danda, means punishing with strong censure such as "shame on thee, thou miscreant"; it differs from the ﬁrst in intensity, not in kind. The third, Dhana-danda, means punishing with ﬁne which may be of two kinds, ﬁxed and fluctuating. In cer- tain cases the ﬁxed ﬁne may easily be imposed. Certain other cases do not admit of such easy handling. Allowance must be made in the latter class of cases for some elasticity in view of repeated inclinations to offence and other cir- cumstances such as violence attending it. When the offence is accompanied by violence the punishment must be grad- ed according to circumstances, to ﬁt mathama sahasa (vio- lence of the ﬁrst order), madhyama sahasa (vio- lence of the second order), and uttam sahasa (violence of the last or extreme kind).
Vadha--d,anda requires detailed treatment. Vadha maybe of three kinds pidana, angaccheda and pramapana. Pidana (afflicting) is sub-divided into four modes: (i) tadana such as whipping or flogging, (ii) avarodhana or restraint of liberty by means of imprisonment, (iii) bandhana, restraint of liberty by chaining, fetters and the like, Without actual I. Dr. P. K. Sen, Penology old and new, (Tagore Law Lectures I929) (I943 Edn.), pages I26-I28.
199gmprisoiiinent, and (iv) vidambanx,t.e.,exposing to ridicule and humiliation such as by shaving the head of the offender. making him ride on an ass, branding his person with L} mark denoting his offence, proclaiming his offence Wllll beat of drum, making him patrol the city, etc} ;'l':7:gCLCC}'Led(1, mutilation, may be of different limbs and organs of the body. Manu mentions ten kinds of mutila- tion. Brhaspati prescribes fourteen," referring to fourteen parts of the body which may be mutilated, namely, hand, leg, organ of generation, eye, tongue, ear, nose, half--tongue, half--leg, thumb and the index ﬁnger taken together, fore- head, upper lip, rectum and waist.
Pramapana means capital punishment. it may be cf the pure and the mixed Variety i.e., in the latter case mutilation or some other form of punishment may be combined with the death sentence. The pure variety again is of two kinds, ordinary (avictram) and extraordinary (vicitram). The or- dinary form of execution is by means of ordinary weapons such as sword and the like; the extraordinary is by means of impaling, or other awe-inspiring methods.
t is noteworthy that according to Brhaspati Vag--o'a*r2a'a, and dhig--danda, were within the jurisdiction of Vipras or Pmdvivakas, whereas artha-danrlu and Vadha-danda were within the sole jurisdiction of the King himself} F. Different kinds of punishment in Hindu Law The different kinds of punishment prescribed by the Hindu Law, and some of the principles on which they were directed to be administered, have been thus described by Dr. P. N. Sen? "Yajnavalkya speaks of four classes of punishment, viz., censure, rebuke, pecuniary punishment and corporal punishment, and says that these should be used either separately or jointly according to the nature of the crime. Of these, mere censure was the lightest form of punishment and rebuke came after it, pecuniary punish- ment included fine and forfeiture of property and corporal punishment included imprisonment, banishment, branding, cutting of offending limbs, and lastly death sentence. It goes without saying that the measure of punishment depended chieﬂy on the gravity of the offence; if the offence be not very serious, the punishment must be light, while if the offence be serious the punishment must be severe in 97 cu . 1):: daviv k', G.".c£\'»'ad's Oriental Series, Vol. 52, page 20. . Danda\'i\'cka, Gac1<wzid's Oriental Series, Vol. 52, page 21. . Dandavivcka, prge I2.
-agate»-4,' . Dr. P. N. Scn, Hindu Jurisprudencc, (Tagore Law Lectures, x909). (1918 E«;1n.), pages 342-243.
200G. Arguments against capital punishment in Hindu Law Arguments against capital punishment are also met with. This extract from an authoritative study may be seen1 : -
'It would be no exaggeration to say that the mind of the intelligentsia must have been agitated on the propriety or expediency of capital punishment. An in- teresting evidence of this is to be found, in the Maha- bharata (Chapter CCLVII of the Santiparva) in which there is a discussion between King Dyumatsena and his son Prince Satyavan. A number of men having been brought out for execution at the Command of his father, Prince Satyavan gives vent to his thoughts thus: "Sometimes virtue assumes the form of sin and sin assumes the form of virtue. It is not possible that the destruction of individuals can ever be a virtuous act." Thereupon Dyumatsena observes, "If the sparing of those who should be killed be virtuous, if robbers be spared, O Satyavan, all distinction between virtue and vice will disappear". Satyavan rejoins, "Without des- troying the body of the offender the King should punish him as ordained by the scripture. The King should not act otherwise, neglecting to reﬂect upon the character of the offence and upon the science of morality. By killing the wrongdoers, the King kills a large number of innocent men. Behold! By killing a single robber, his wife, mother, father and children, all are killed. When injured by wicked persons the King should, therefore, think seriously on the question of punishment. Some- times a wicked person is seen to imbibe good conduct from a pious person. It is seen that good children spring from wicked persons. The wicked. therefore, should not be exterminated. The extermination of the wicked is not in consonance with eternal law. By punishing them gently, by depriving them cf all their riches, by chains and imprisonment, by disﬁguring them they may be made to expiate their offences. Their re- latives should not be punished by inﬂicting of capital punishment on them.' The sentiment and reasoning against capital punishment is found in Sukraf according to whom. this bad practice violates the Vedic injunction against taking any life, and should be replaced by imprisonment for life. if necessary, and a natural criminal should be transported to an island, or fettered and made to repair the public roads. Fa Hsien I. Dr. P. K. Sen, "Penology old and new", (Tagore Law. Lectures I929, I943 Edn-), pages 93-94.
2. Sukranitisara 4-I. 92--<IO8, referred to in D. M. Dutta, "Pol-Erica, Legal and Economic Thought in Indian Perspective ", in Moore, (Editor) Philosophy and Cu1ture---East and West (University of Hawaii), (1962);
pages 569. 590-
201did not find any capital punishment in India (399400 All) but ﬁnes were there, and mutilation in cases of treason.' Nevertheless, it seems that, at various periods in _ the history of ancient India, capital punishment was one oi the recognised modes of punishment-
H. Capital punishment for various crimes in Hindu Law (According to Jolly) Jolly's observations as to the crimes regarded as capital are interestingg:
'The punishments for theft are very heavy. In all Theft.
cases of serious crimes the accused is sentenced to death: he is impaled, hanged or drowned and often his hands are hacked off and other tortures are inﬂicted for the purpose of aggravating the punishment. The same. punishments are ordained also in the case of burglary, frequently repeated instances of picking pockets, rob-
bery, stealing cows, horses or elephants or more than 10 Kumbhas of grains, more than 100 Palas of precious metals, particularly valuable jewels or stuffs, etc. (Y. 2, 273, M. 8, 320, f; 9,276 ), 280; Brh. 22, 17-19, etc.). "Forging of royal grants and even of private documents Capital is punished by death (Vi. 5, 9f; M.9, 232); the king punishment should have a dishonest goldsmith cut to pieces, i.e., f0? Other according to the commentaries, those who use false °"meS' weights, touchstones, alloys and practise other kinds of frauds (M. 9, 292). In determining the magnitude of the punishment according to the value of the stolen property often three grades are distinguished. Thus Var,-Gus Y. 2. 275 speaks about the theft of small, middling or punishments large properties and similarly speak Nr. 14, 13; 15, 6; f0? 'lg?' App. 29 and Brh. 22m 24. Enumerations of objects of f§°?1§e"','a%ue about equal value are generally given along with data of the about the punishments for misappropriating the same, Stolen pm- which, besides the already mentioned cases of capital Petty' punishment, consist of the hacking off of a hand or a foot and other kinds of mutilation and ﬁnes in most cases amounting to many times the value of the stolen property. No distinction is made between robbery and theft as regards punishment and moreover taking part in these crimes, abetting of every kind or refusing to render help is regarded as equally criminal (Nr. 14, 12, 19 f, Y 2, 276, etc)'.
I. D. M. Dutta, "Political, Legal and Economic Thought in Indian Persncctivc ". in Moore, (Editor), Philosophy and Culture--_East and Wes: (UnlV'»ifS1[y of Hawaii), (1962), pages 579, 590.
2. Jolly, Hindu Law and Custom, (1928), page 273 ez seq.
202I. References from Mainu From the Manusmriti it appears that capital punishment was awarded for theft of more than 10 "kumbhas"l. Rape by a man of the lower caste with a woman of the higher caste was a capital offence." Brahmins were not subject to the death penalty." Mutilation of the particular offending limb was also prescribed by Manuf' J. Capital punishment and Buddhist rulers It would appear, that in the fourth century B.C., capital punishment was in force, and death penalty without torture was administered for crimes accompanied with cruelty?' Though, in the Buddhist period, the doctrine of Ahimsa (non-violence) became prominent, the Emperor Asoka does not seem to have abolished capital punishment totally. Re- ference to capital punishment is found in his edicts."
Vincent Smith7 observes---
"The most pious Buddhist and Jain Kings had no hesitation about inﬁicting capital punishment upon their subjects, and Asoka himself continued to sanction the death penalty throughout his reign. He was con- tent to satisfy his humanitarian feelings by a slight mitigation of the sanguinary penal code inherited from his stern grandfather in conceding to condemned per- sons three days' grace to prepare for death."8 Asoka's Pillar Edict IV has been thus translated":----
'For as much as it is desirable that there should be uniformity in judicial procedure and uniformity in penalties, from this time forward my rule is this-- "To condemned men lying in prison under sentence of death a respite of three days is grant-
ed by me".
During this interval the relatives of some of the condemn- ed men will invite them to deep meditation, hoping to save their lives or in order to lead to meditation him about to die, will themselves give alms with a View to the other I. Mann 8, verse 320.
2. Mann 8, verse 366.
3. Menu 8, verses 379 and 380.
4. Mann 8, verse 125.
5. Sec B. R. Ramchandra Dikshitar, Mauman Polity, (Madras Uni- versiy Historical Studies), (1953), pages 167-168.
6. The edicts of Asoka are collected by D.C. Sircar, Inscriptions of Asoka, G()\'CrnmCnt of India, (1957).
7. Vincent Smith, Early History of India, (4th Edn.\, page 185.
8. Pillar Edict, IV.
9. See Vinccnt Smith, Asaka, (2nd Edn.), page 186.
1703world or undergo fasting. For my desire is that even In the time of their conﬁnement the condemned men may gain the next world and that among the people pious prac- tices of various kinds may grow including self-control and distribution of alms.' There is a somewhat different version of. this Edict given by some authors. Thus, Bhandarkarl gives the tol- lowing translation:--
"And even so far goes my order: to men who are bound with fetters, on whom sentence has been passed and who have been condemned to death, have I granted three days as something rightfully and exclusively their own. (In that interval) (their) re- latives will indeed propitiate some (of the Rajukas) in order to grant their life; and to propitiate Death, they (i.e., the convicts) will give alms and observe fasts pertaining to the next world? For my desire is that even when the time (for their living) has expir- ed they may win the next world and that manifold pious practices, self--restraint and liberality may thus grow among the people."
In a recent study3, the position is thus stated:-----
"Continuing his efforts to secure greater welfare for his subjects, he orders a respite of three days be- fore a death sentence is carried out. This is an act of grace, since he recognizes that this time may, in certain cases, be utilized to prove the innocence of the condemned person or to secure his repentence. It is curious that, despite his ﬁrm belief in Buddhism, he did not abolish capital punishment. Doubtlessly he regarded capital punishment as essential to the maintenance of law and order, and, despite his per- sonal convictions to the contrary, felt that justice in the state must be based on recognised painful punish- ments or pleasurable rewards4."
The following translation of Pillar Edict IV of Delhi- Topra is given in a recent work5:--
"And my order (reaches), even so far, (that) a respite of three days is granted by me to persons lying
1. D.R. Bhandarkar, Ashoka, (Carmcihael Lectures, 1923), (University of Calcutta, 1932), page 342.
2. This is the most knotty passage. See D.R. Bhandarkar, Ashoka, page 345, annotation 7.
3. Romila Thapar, Asoka and the Decline of the Mauryas, (Oxford Uni- versity Press),( 1961), pages 176-177 (See page 263 for translation of the Edict .
4. There is an interesting passage in the Mahabharata (Santi Parva,
259), which expresses an attitude very similar to Asol<a's attitude in this matter. According to the Chinese travellers, capital punishment was abo- lished in later centuries.
5. Saletore, Ancient Indian Political Thought and Institutions, (1963) pages 570. 670, citing E. Hultzch, Corpus Inscriptionum lndicarum Vol. 1, page 125.
204in prison on whom punishment has been passed; (and) who have been condemned to death. (In this way) either (their) relatives Will persuade those (Rajukas) to (grant) their life, or if there is none Who 10€1'SUad€'S (them), they will bestow gifts or will undergo fasts in order to (attain happiness) in the other (word). For my desire is this, that, even when the time (of respite) has expired, they should attain (happiness) in the other (world)."
This is the translation of the Edict given in that studylz "Thus speaks the Beloved of the Gods, the king Piyadassi: When I had been consecrated twenty- six years I had this inscription on Dhamma engrav- ed. My rajukas (rural oiﬁcers) are appointed over many hundred thousands of people. In judgment and punishment I have given them independent author- ity, so that the rajukas may fulﬁl their func- tions calmly and fearlessly and may promote the welfare and happiness of the country people and bone- ﬁt them. They will learn what makes for happiness and unhappiness and together with those devoted to Dhamma, they will admonish the country people that they may obtain happiness in this world and the next. The rajukas are eager to obey me and they will like- wise obey my envoys who know my wishes. These likewise will admonish (the erring rajukas) so that they will be able to give me satisfaction.
Just as one entrusts his child to an experienced nurse, and is conﬁdent that the experienced nurse is able to care for the child satisfactorily, so my rajukas have been appointed for the welfare and happiness of the country people. In order that they my fulﬁl their functions fearlessly, conﬁdently, and cheerfully, I have given them independent authority in judgment and punishment. But it is desirable that there should be uniformity in judicial procedure and punishment.
This is my instruction from now on: Men who are imprisoned or sentenced to death are to be given three days respite. Thus their relations may plead for their lives. or, if there is no one to plead for them, they may make donations or undertake a fast for a better rebirth in the next life. For it is my wish that they should gain the next world. And among the people various practices of Dhamma are increasing, such as self-control and the distribution of charity."
The view that Asoka abolished capital punishment is therefore a misconception?
'I. Romila Thapar, Asoka and the Decilne of the:l:lauryas, OxfoVrdrU--n'i- versity Press, (1961), pages 263-264.
.2. See B._ R. Ramchandra Dikshitar, "Maurvarl Policy", (Madras Uni- versity Historical Studies), (1953), pages 167-168.
205(Asoka came to the throne about 270 B.C., according to the generally accepted view').
It may be noted, that when Magasthenes was in India {i.e. some tiiiie between 30'/_' and 288 BC.) the severest pen- alties 'czere imposed, having regard to the needs of the age'.
Kautilya advocated the death penalty, though only in speciﬁed cases".
One may also refer to the views of Prince Shotoku (Japan) (604 A.D.), who thought his "SeVenteen--Articles Constitution" was based on the spirit of Buddhism", wrote:----
"Light crimes should be embraced by our power of reforming inﬂuence, and grave crimes should be surrendered to our power of strong force".
King Harsha (seventh century) inflicted capital punish- ment on all who ventured to slay any living creature?
K.  Of the death sentences, impaling, which is mentioned also in the Mah., Rajatar, and in the literature of fables, was in vogue for instance in Gol- conda even in the 17th Century, in Kolhapur until the period of British rule7, and the trampling down by elephants mentioned also in Mriccha, 146 and the Jatakas (Rausboll) l, 199 if, was universally practis- ed in the Mahratta statess. Moreover under Mahratta rule, specially in Central India, the following are said to have been the customary punishments : ﬁnes, ﬂogg- Various ing, imprisonment, putting in stocks, forfeiture and punishments sale of the whole property, amputation of hands, fin-- in Marhma gers or nose and other corporal punishments; the p°"°d' hands of a forger of base coins were crushed with one blow of the hammer which is apparently a symbolical I. See Sir cinries Elliott, Hinduism and Buddhism, (1957), voi. 1, page 266, foot-note 4.
_2. See S_a1e_toi~e, Ancient Indian Political Thougnt and Institutions, (1963), (Asia Publishing House, New York), pages 536, 544.
3. Saletore, Ancient Indian Political Thought and Institutions, (1963) page 570, citing Kautilya, Book IV, Chapter XI, pages 256-258.
4. Nakamura, "Basic features of the legal political, and economic thought of Japanf', in Moore', (Editor), Philosophy and Cultute--East and West, (University of Hawaii), (1962), pages 631, 636, 638.
5. Encyclopaedia of Religions and Ethics, Vol. 4, page 284.
6. Jolly, Hindu Law and Custom, (1928), page 283, er mg.
7. B.G. 24, 267.
8. LC.
Smritis followed in Nepal, 206 punishmentl. Fines were particularly in vogue in Raj- putana according to Todz, in Mysore according to Dubois" and in Kolhapur according to the Gazetteer; among the Prayascittas ﬁnes still play the chief role, cf. article 37. In Nepal, besides the very frequent ﬁnes sometimes amounting to the conﬁscation of _the whole property, banishment and detracting punish- ment such as the shaving of the hair (article 42) 35 well as the horrible multilation and death-sentences of the Sr:m't~;s are still in vogue."
The position in Mahratta times was as follows4:----
"For great crimes, the Sursoobedars had the power of punishing capitally; Mamlitdars in such cases re- quired the Peishwa's authority. The great Jagherdars had power of life and death within their respective territories. Bramins could not be executed; but state prisoners were poisoned, or destroyed by deleterious food, such as equal parts of ﬂour and salt. Women were mutilated, but rarely put to death. There was no prescribed form of trial; torture to extort confes« sion was very common; and confession was generally thought necessary to capital punishment. The chief authority, in doubtful cases, commonly took the opi~ nion of his ofﬁcers; and some Mamlitdars in the Satara country, under both the Pritee Needhee and Peishwa, employed Punchayets to pronounce on the innocence or guilt of the accused; but this system can only be traced to the time of Shao; and though so well worthy of imitation was by no means general, nor are its be- neﬁts understood or appreciated in the present day."
An interesting incident may be referred to in this (On- nection5. Soon after the death of Madhavrao I, it was sus- pected that Ragunathrao was privy to the murder, and he asked Ram Sastri (the celebrated Chief Justice of Poona) what was the penalty for the act. Ram Shastri not only declared that capital punishment was the only penalty for the offence, but declined to serve any longer under a Peshwa who had murdered his own nephew. This was roundabout the year 1774. Later on, in 1779, he was induc- ed to return to Poona to resume his work, with an annual salary of Rs. 2,000 and an allowance of Rs. 1,000 for his palankeen.
I. Grant, C. P. Gazetteer 70 f.; Malcolm, A Memoir of Central India, 2nd Edn.,I, 558.
2. Annals of Raiasthan, 1, 142 f.
3. People of India, 499 f.
4. James Grant Duff, History pages 236--237.
of the Mahrattas, (1912), Vol. 2,
5. See D. B. Parasnis, Note in Appendix II. Kincaid and Parasn is, A History of the Maratha People, (1931), pages 475-476.
207Dr. Coates Residency SUFQCOU 111 POOU3» '-'0n'31"1l5'tv"«e'l in 1819, some valuable notes on the administration of jus- tice in Poona to the Bombay Literary S0C1€'EY. qU0*~9'©l be' lOVV1Z----
"The criminal court was composed ot 'a Bl'&!l1.,1':1]ll president, some Brahniin clerks. and a snastrz. Its niece of proceeding. if the accused were protessed thieves or old otienders; was summary, and had sometning or a sanguinary character. It Was always ©SS€T1t1'~il U' Conviction that the ofiender should confess his guilt. and the investigation turned much on this. The tacts and evidence were all taken down in writing by kar- kzma (clerks), and persuasion and threats were used from time to time to obtain confession. If this failed, and when from the evidence recorded there appeared little doubt. of the fault of the accused, torture was employed and he was flogged, and chilli bag was put to his nose etc. If he persevered in his declaration or innocence, he Was sent back to prison. put in the stocks, and allowed only a very scanty subsistence; and after an interval was brought forward again and again to try to get him to confess. This refers chieﬂy to Ramoosis, Mangs, and persons of bad charac'i:r. In other cases the proceedings were conducted with more deliberation and forbearance: and there were probasiy few instances where those entirely innocent were made to suffer. Persons accused of robbery and theft were readily admitted to bail, if the bondsman made him- self responsible for the lost property in cases of con- viction. Murder was not bailable, unless a compro- mise was made with the friends of the deceased. The accused might summon what evidence they pleased, but were not allowed to have any intercourse with them. When the offender had been convicted on his own confession, the president, the shastri, and the Brahmins of the court. in ordinary cases, awarded the sentence; and in intricate cases this was done by a body of learned shastris, sometimes in the presence of the Peshwa. No severe punishment was inﬁicted till the case had been submitted to the Peshwa for his approval. Brahmins of course, whatever their crimes, were never put to death, or subjected to any punish- ment considered ignominious. For small crimes they were often merely reproved, ordered to dispense cha- rities, and perform religious penances; or were sub- jected to slight ﬁnes, imprisonment, or ﬂogging: those of a deeper die were heavily ﬁned, or confined in hill forts, sometimes in irons, where the climate and their scanty and unwholesome food commonly soon put an end to them: and their property was sequestrated, and their sins visited on the children. Gangs committing I. D. B. Parasiiis. Note in Appendix II, Kiiicaid :1ndParasn's, A History of the Maratha Peop1e.(i_o3I), page 476.
208murder. highway robbery, and houseubreaking, were punished by death, and their bodies hung up on the sides of roads: other professed incorrigible thieves were punished, according to the extent of their crimes, by the cutting off of a ﬁnger, or hand, or foot, or both, and left to their fate. Perjury was punished by the perjurer being made to make good the loss that de- pended on his false oath. and paying a ﬁne to Gov- ernment. Forgery, by the Hindu Law, ought to have been punished by the cutting off of the right hand; but this, like almost every crime at Poona, was com- mutable for money. Women were never punished by death for any crime.
APPENDIX XXIV CAPIIAL PUNISHMENT IN INDIA DURING THE MUSLIM PERIOD I.--IN'rRonUc'roRY During the Muslim times (Mughal times) the main svstem of criminal law administered was the Quranic one. The system had originated and grown outside India. Its main sources were the Quran as supplemented and inter- preted by case~law and opinions of jurists. Since all the three sources were "trans-Indian",1 it became necessary for Indian Qazis to have a digest of Islamic law. The last such digest was the Fatawa-i-Alamgiri compiled by a syn- dicate of theologians under the orders of Aurangzeb~'z That portion of the Islamic Criminal Law which con- stituted the crimes in the estimation of all nations. was applied to Muslims and non-Muslims alike, e.g. adultery, murder, theft, etc".
In the Mughal period, Muslim sovereigns used to ad- minister justice in person. Thus, Sultan Muhammad Tugh~ laq constituted himself the Supreme Court of Appeal and used to keep four Muftis, to whom he used to say that they should be careful in speaking that which they con- sidered right, because if any one should be put to death wrongfully the blood of that man would be upon their head. If they convicted the prisoner after long discussion, he would pass orders for the execution of the prisoner".
I. Jadunath S rkar, Mughal Administration, (1952), page 100.
2. Jadunath Sarkar, Mughal Administration, (1952), page 21.
A3. Wahed Husain, Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), page 15.
4. Wahed Husain, Administration of Justice during the Muslim Rule in India,(University of Calcutta), (1934), pages 20-21.
269Akbar's idea of justice may be gathered from ms ms- truetions to the Governor of Gujarat that he should not talte away life till after the most mature deliberations'. The Emperor himself was the ﬁnal Court of Appeal, and vcne ne appeared in front of his window every morning, i'. open to any one to demand 'justice oersonally---- though the demand was seldom made?
Akbar was keen to lay down, that capital puni~:l1m:1?.t was not to be accompanied with mutilation or other cruel- ty. and that. except in cases of dangerous sedition, the Governor should not inflict capital punishment until the proceedings were sent to the Emperor and conﬁrmed by him".
In the time of Jehangir. no sentence of death could be cawied out without the conﬁrmation of the Emperor".
It has been stated that the lands of the Moghuls isrcre, or.» :he whole, well policed".
Capital punishment. it is stated, was almost totally ign- known under Aurangzeb5.
Under the dictates of anger and passion he never lSSU.€d orders of death7.
The Farmans issued by Emperor Aurangzeb to the D;?'»van of Gujarat on the 16th June, 1772 gives 3 small Code of offences."
The first Indian Law Commission first prepared the draft of Penal Code before Macaulay's departure for England in 1837. But the Penal Code could actually be passed only in 1860. It was based on the draft proposed by Macaulay's commission and revised by Bethune. the legal member of council, and Sir Barness Peacock".
I.'\:<'/ahed Hussain, Administration of Justiceﬂdurrinygl theWMuslim in India, (University of Calcutta), (1934), page 33, citing Ayin--i-Akbari, Vol. I. page 254.
2. '.'ringl-3 Kennedy, Histor)' of the Great Mughals, (1905), Vol. 1, page
308.
3. Wahed Husain, Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934). page 33: citing Elphinstone, History of India, pages 532-533. Letter of Instructions to the Governor of Gujarat.
4. Wahcd Hussein, Administration of Justice during the Muslim Rule in India. (University of Calcutta), (1934), page 41.
5. Pringle Kennedy, History of the Great Moghuls, (Thacker Spink & Co.. Calcutta), (1905): Vol. 2, page 3.
6. Wahed Hussain, Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), page 53; referring to Alexander Doxv, History of India.
7. Pringle Kennedy, A History of the Great Mughals, (1905), (Thacker Spink & Co., Calcutta), Vol. 2, page 77.
>2. Full discussion will be found in J. N. Sarkar, Mughal Administration» (1952), pages 122-130.
9. Cambridge History of India, (1958), Vol. VI, page 384. Also S08 prge %.
15-122 Law 210 The Indian Penal Code was, it is said, inﬂuenced by the French Penal Code and the Code of Louisianal; but the foundation was the English law divested of technicalities. Until it was enacted for a long time, the substantive law 0} the criminal courts consisted of the Muslim law, with modiﬁcation made in some respects by the Regulations?
The general criminal law enforced in the Upper Pro- vinces also (until the Indian Penal Code was enacted) was the Muhammadan law as altered by British regulations and judicial decisions".
Even in Madras, "for want of anything better" the Muhammadan criminal law as interpreted by law officers and modified by enactment was applied until the Penal Code came into force"-5.
It was only in Bombay that an attempt had been made to codify the criminal law in 1827 by a Regulation".
In view of this position, it is desirable to study briefly the Muslim criminal law.
The position regarding the criminal law applicable be- fore Indian Penal Code is thus stated7:--
"By Warren Hastings' plan in 1772, the Muham- madan Criminal Law was retained in the Criminal courts subject to the interpretation of Government, or of the subordinate English functionaries, where its provisions were manifestly unjust. In 1790, when the Governor-General accepted the Nizamut of Bengal, the Criminal Courts then established were directed to pronounce sentence according to the Muham- madan law; and in cases of murder according to the doctrines of Yusuf and Muhammads, as has been al- ready noticed. The Muhammadan law was further ordered to be continued in the like manner in the Criminal Courts established in 1793"."
"In 1832, it was enacted in Bengal that all per- sons, not professing the Muhammadan faith, might claim to be exempt from trial under the provisions of I. Cambridge Historyyof India, (1958), Vol. VI, page 387.
2. See Field, The Regulations of the Bengal Code, (1875), (Thacker Spink & Co.), page 175, paragraph 240.
3. Cambridge History of India, (1958), Vol. VI, page 79.
4. Cambridge History of India, (1958), Vol. VI, page 43, middle,
5. For example, see Madras Regulation 7 of 1802 (section 15), Mad- ras Regulation 8 of 1802 (section 9 to II), Madras Regulation 15 of 1803 (Preamble).
6. Bombay Regulation 14 of 1827.
7. William H. Morley, Administration of Justice in British India, (1858), pages 185-186.
8. Bengal Regulation XXVI, 1790, sections 32-33.
9. Bengal Regulation IX, 1793, sections 47, 50, 74, 75.
211the Muhammadan Criminal Code for offences cogni- zable under the general Regulations'.
At Madras, in the year 1802, provisions were made respecting the administration of the Muhammadan Criminal law in the Courts of the East--India Company, similar to those enacted in Bengal by Regulation 9 of 1703".
The Criminal law administered in the Company's Courts at Bombay previous to 1827, was ordered to be regulated by the law of the accused party: Christians and Parsis to be judged on the principles of the Eng- lish law, and Muhammadans and Hindus according to their own particular laws3. The Muhammadan law was to be regulated by the Fatwa of the law officers, which was directed to be given according to the doc- trine of Yusuf and Muhammad; respect which, and the law of the Hindus, the Judges were enjoined to refer to the translation of the Hidayah by Hamilton, and of the Hindu laws by Halhed and Sir William Jones; as likewise to a tract entitled "Observations", which then constituted part of the criminal Code for the province of Malabar and Salsette; etc." In 1819, the Hindu Criminal Law was directed to be adminis- tered to Hindus in the special Court'. The Native Cri- minal Laws were abolished in the Bombay Presidency in 1827, and a regular Code substituted in their place.
The Muhammadan Criminal Law, even when first reserved to the natives of the British territories in India, was subjected to many important restrictions in its application; and it has been so modiﬁed by the subsequent Regulations in the Presidencies of Bengal and Madras as to present no vestiges of its sanguinary character, and but few of its original imperfections?"
i. Bengal Regulation VI, 1832, section 5.
2. Madras Regulation V11, 1802, sections 15, 16,
3. Madras Regulation VII, I802, sections 9, 10, II;
Bombay Regulation V of 1799, section 36;Bombay Regulation III, of 1833, section 36; Bombay Regulation VII oi 1820, section 17.
4. Bombay Regulation of 1799, sections 36, 39; Bombay Regulation III, of 180:), sections 36--39; Bombay Regulation VII, I820, sectionss 17---2o.
5. Bombay Regulation X of 1819.
6. The right existing in the Government to alter the Muhammadan law appears to have been virtually recognised by the 13th Geo. III, C. 63 section 7, vesting in it authority for the ordering, managing, and governing, in like manner (as the Act recites), to all intents and purposes whatever, as the same now are, or at any time heretofore might have been exercised by the Presi- dent and Council in Select Committee" because it was then before the Legis- lature that the President and Council had interposed, and altered the Criminal Law of the Province in 1772. Such alterations, and all future necessary amendments thereof, appear, by the above clause, to be legally sanctioned. See Fifth Report from the Select Committee of the House of Commons, .1812, page 40.
212II.--MUsL1M LAW AS IN FORCE AT THE ADVENT or BRITISH' RULE General picture For the present purpose it is unnecessary to give a detailed discussion of the theory of punishment in Muslim Law. But the following brief extracts from an authorita- tive book will sufﬁcel, to give a general picture:-
Classiﬁcation of Crimes According to Muslim ideas of jurisprudence crimes-
fall into three groups, namely:--
(a) offences against God,
(b) offences against the State, and
(c) offences against private individuals.
Punishment for the ﬁrst of these classes is "the i right of God (Haqq Allah)", while for the other two classes of offences the injured party may forgive or compound with the wrong--doer. Thus, curiously enough, manslaughter is not a violation of God's law nor of the king's peace, but only a damage to the family of the murdered man, which can be settled by paying money compensation (called "the price of blood") to the next of kin of the victim, Without the Executive Head of the State or the Judge of Canon Law having to take any further notice of it. It was only when the relatives of the murdered man refused to accept money damages and insisted on retaliation, that the quazi had to pronounce the sentence of death and the execu- tive to enforce it.
The Institute of Timur puts the matter with great clearness and force. He writes=--
"Robbers and thieves, in whatever place they might be found, or by whomsoever detected, I commanded to be put to death." (Note: This, how» ever, was not in exact accordance with Quranic law.) And I ordained that, if any one seized by vio- lence the property of another, the value of that property should be taken from the oppressor, and be restored to the oppressed.
Concerning other crimes--the breaking of teeth, the putting out of eyes, the slitting and cutting olf of the ears and nose, wine drinking and adultery,--1 ordained that whoever should be guilty of these, or other crimes, they should be brought into the courts of the ecclesiastical and lay judges--(the exact terms being Qazi-i-Islam and Qazi-i--Ahdas,--ahdas meaning I. ladunath Sarkar, Mughal Administration, (1952),"page's :31 toxic':-9:
213"ritual impurity"); that the ecclesiatical judge should decide on those causes which are determinable by the sacred laws (Shara), and that those which did_ not fall under his cognizance (urﬁ bashad, i.e., pertain to the customary or secular law) should be investigated and laid before me by the lay judge." (Davy's Insti- tutes of Timur, pages 251 and 253, corrected by refer-- ence to the Persian text).
Description of punishments allowed by Muhammadan law The punishments for crimes were of four classes:--
(a) Hadd.
(b) Tazir.
(c) Qisas.
(d) Tashhir.
Hadd (its plural being hadud), means a punishment prescribed by Canon Law and considered as 'the right of God', which, therefore, no human judge can alter.
Hadd must take certain prescribed forms of punishment, viz;
(i) Stoning to death for adultery; scourging for fornication [100 stripes].
(ii) Scourging for falsely accusing a married woman of adultery [80 stripes].
(iii) Scourging for drinking wine and other intoxi-
cating liquors. For a free man the punishment was 80 stripes for wine drinking.
(iv) Cutting oﬁ the right hand for theft.
(V) For simple robbery on the highway, the loss of hands and feet; for robbery with murder, death either by the sword or by cruciﬁxion.
Tazir is punishment intended to reform culprit . . . . . . .. tazir is inflicted for such transgressions as have no hadd punishment and no expiation prescribed for them. The kind and amount of tazir is left entirely to the discretion of the judges . . . . . .The Judge can completely remit the tazir. The process of trial is simple in contrast to that for hadd. Hence attempt was often made to escape tazir by bribery [Ency. Islam iv. 710].
It was not the "right of God". It could take one of these four forms:--
(i) Public reprimand (tadib).
(ii) Jirr, or dragging the offender to the door [of the court house?] and exposing him to public scorn; somewhat like putting a man in the pillory,
(iii) Imprisonment or exile.
214(iv) Boxing on the ear; scourging. The stripes must not be less than 3, nor more than 39 (or 75 according to the Hanaﬁ School, as in Abu Yusui').
We are told in the Hedaya, a Persian compilation of Islamic law according to the Hanaﬁ school of jurists drawn up by Mulla Tajuddin, Mir Muhammad Hussain, and Mulla Shariatullah about 1780, that the above punishments should be inﬁicted according to the offender's rank, and that imprisonment and scourging were to be conﬁned to the third and fourth grades of the people, the petty traders and common labourers, respectively, (or as Manu would have put it, the Vaishyas and Shudras),--while the lighter forms of punishment were reserved for the nobility and gentry; (Hedaya, 203-204; full details in Hughes, 632-634).
As for tazir--bil-mal or 'chastisement in property' z'.e. ﬁne, only Abu Hanifa pronounces it to be legal, but all other learned men reject it as opposed to the Quranic law. (Hedaya, 203) Aurangzeb, who was a strict Hanaﬁ and himself well--read in Canon Law and the literature of pre- cedents (fatawa), issued an order to the diwan of Gujarat and also of other subahs, in 1679, to the effect that as ﬁne was not permitted by Canon Law, every civil official (amal), zamindar or other person found guilty of an offence, should, according to the nature of his act, be impri- soned or dismissed or banished, but not punished with ﬁne, (Mirat-i-Ahmadi, i. 293).
Private vengeance, public degradation, etc. Qisas or retaliation: This was the personal right of the victim or his next of kin, in the case of certain crimes notably murder. If he demanded the legal punishment, the qazi was bound to inﬂict it, and neither he nor the king could exercise the_royal clemency by modiﬁcation or abrogation of the sentence. If, on the other hand, the next of kin of the deceased was satisﬁed with the money damag- es, called "price of blood" (Arabic diya) offered by the murderer, or pardoned him unconditionally, it was his look-out, and neither the qazi nor the king was to take any further notice of the crime. For minor oﬁence, the retalia- tion was, as laid down by the Mosaic law, "a tooth for a tooth and an eye for an eye", with certain exceptions. (Hughes, 481, Encyc. Ist. ii. 1038).
Tashhr or public degradation was a popularly devised punishment of universal currency throughout the Muslim world and even Hindu India and Medieval Europe.  "The judge may blacken the face of the culprit, cut his hair or have him led through the streets, etc." [Encyclo, Islam, i. 132.]. This last refers to the Arabian practice.
As for offences against the State, such as rebellion, peculation and default in the payment of revenue, the sovereign inflicted punishment at his pleasure, because the Quranic law gives no guidance here. Among the prevalent modes of putting an offender to death were having him trodden to death [the last being also sanctioned by medie- val English law]. Tortures of various degrees of ingenuity were resorted to. Theft (sarqa) is punishable with the cutting off of one hand one foot. But if the oﬁender has robbed and killed, he is to be put to death. . . .and his body publicly exposed for three days on a cross or in some other way. The punishment of death is here considered a haqq Allah and blood--money is out of the question. All accom- plices are punished in the same way. The judge can inﬂict the above punishments, as hadd, only when all the legal conditions are fulﬁlled. The legal inquiry has to be con- ducted, witnesses are necessary, or a confession. If the thief has given back the article stolen before the charge is made, he is immune from punishment [Ency. lst, iv. 173- 174].
 - a . - . . o - . o o . - u The Muslim Criminal Law compared more favourably with the English Criminal law as it was in force at that time. The English law still prescribed barbarous punish- ments and contained some glaring anomalies, while, as Hastings had declared, the Muslim law Was founded 'on the most lenient principle and an abhorrence of blood- shed". ' I. Nlonckton Jones, Hastings in Bengal, page 331, cited by Aspinall, Cornwalliu in Bengal, (Manchester Universlty Press), (x931), page 61.
216A brief summary of Muslim law of homicide is quoted below from one study':----
The law of murder, for example, needed radical altera- tion if life was to be made secure. Abu Hanifa, whose opinions were generally accepted by the Bengal Judges. had drawn a sharp distinction between the two kinds Of homicide known by the terms Amd (wilful murder) and Shabih--amd (culpable homicide not amounting to murder), although such distinction was not recognised by the Quran. The distinction was based on the method by which the crime was committed. If a man killed another by striking him with his ﬁsts, throwing him from the upper floors of a house, throwing him down a well or into a river, strangling him, or with a stick, stone, club, or any other weapon on which there was no iron and which would not draw blood, he was guilty only of shabih-amd, not of murder. and he could not be capitally punished? A man was guilty of murder only if he used a dab (knife) or some other blood-drawing instrument, and was liable to be sentenced to death3. Persons 'guilty of shabih-amd were merely sentenced to pay the blood-ﬁne to their victims' relatives if those relatives chose to accept it. Abu Hanifa. however. had declared that if a man repeatedly committed murder by strangling, he might be executed'. Abu Hanifa, who was born in the eightieth year of the Jejira, had never taken part in the administration of justice, though he had been greatly revered as a virtuous and scholarly theologian. It was said of him that he left his writings and opinions open to the correction of his disci- ples in so far as those opinions might be found to differ from the Holy Tradition; but although these disciples, Abu Yusuf and Muhammad, the former being Chief Justice at Baghdad, did, it was said, help to bring their master's doctrines into great renown, yet nevertheless they entirely diﬁered with him regarding the punishment of homicide, laying down the more rational doctrine that if the intention of murder be proved, no distinction should be drawn with regard to the method employed'. Abu Yusuf's opinion, however, never came to supersede that of Abu Hanifa, and the important point we have to notice is that 1, Aspinall, Cornwallis in Bengal, (1931), pages 53-56.
2. Bengal Rev. Cons., 28 Nov. 1788; 30-12-1789.
3. Bengal Rev. C0ns.', 28 Nov. I788; 30-12-1789.
4. Bengal Rev. Cons., 21 Julg, 1790.
5. Bengal Rev. Cons., I9 Aug. 1789; 15 July 1791. This information was given to Jonathan Duncan, the Company's Resident at Benares -,by the Muhammadan Judges of the Benares Courts.
217the latter's view Was generally accepted and acted upon in Bengal at this time'.
In several other cases the Muhammadan Law which was administered in Bengal did not permit murderers to be executed. Provided they were Muslims, neither fathers nor mothers suifered death for the murder of their children, but were ﬁned; they were liable to be hanged only for murdering other people's children. Grandfathers and grandmothers enjoyed a similar immunity with respect to their grandchildren; so did a Master for the murder of his slave, or a man for the murder of his son-in--1aw, provided that his daughter was actually living with her husband at the time. Patricide or matricide, however, might be punished with death'.
Homicide was justifiable in the following cases: A woman might kill a man who persisted in carrying on an indecent conversation "with violence and il1--will"; a man using a dangerous weapon in the streets of a town during the night, or outside the town during the day, might legal- ly be killed".  The authorities who were followed in the Courts of Justice in Bengal differed some- what on this matter.  Another authority maintained that an adulterer might be slain provided that, if he "made a noise" to give the offender a chance to desist; second, the adulterer neither ﬂed nor desisted on hearing the noise; third, the offender was a Mussulman; and fourth, the offender was seen in the very act.  Should he know that his death only wil restrain him, itis permitted to slay him". A fourth authority emphasises the necessity of producing witnesses to prove the act of fornication. "If a murderer shall state that he has slain anyone on account of fornica- tion, and the heirs of the slain shall deny his allegation, the murderer having no witnesses, his assertion being i. Bengal Rev. COD.» 28 Nov. I788; 30 Dec. 1789. In a written com- munication the Ghazipur Judge refers to the "Hanifan legal writings, which are most prevalent, or in use, for the guidance of the rulers of the country of Hindostan."
2. Bengal Rev. Cons., 30 Dec. 1789; 29 June 1792 218 without testimony, shall be deemed inadmissible". A man might slay a person caught in the act of robbing his house'-'.
But by far the most important reason why murderers frequently escaped the death penalty was that provision of the Muhammadan Law which gave to the sons or next of kin the privilege of pardoning the murderer of their parents or kinsmen. This misplaced power of life and death made the fate of a murdered largely depend on the caprice, venality, or indifference of the deceased man's relatives.
Detailed Analysis A.--Homicide The Muslim law of homicide (as administered at the advent of the British rule) seems to have been elaborate. Centain types of homicide were regarded as lawful and justiﬁed. Further, "retaliation" for the murder was allow- ed in certain cases. Homicide in self-defence or in the prevention of adultery, rape or other serious offences or at the express desire of the person killed was excusable, and so was homicide committed under threat of death". Apart from these, and apart from speciﬁed cases, homicide was an offence and "wilful homicide"--Qatl-i-Amd4--was punishable with death or retaliation where permissible. The other types of illegal homicide were punishable with "ﬁne of blood" (Diyut), and, in certain cases, by expiation and exclusion from the inheritance'! This brings us to the question of what was "wilful homicide", and what were the other types of "illegal homi-
cide".
1. Bengal Rev. Cons., 18 Feb. 1789; 30 Dec. 1789. A Tradition from Muammad says: Someone asked him, 'Oh, Prophet of God! Should I ﬁnd anyone with my wife, shall I leave him till I can get four witnes ses, The Prophet answered, 'Let them alone till you can get the four witnesses'.
2. Bengal Rev. Cons., 30 Dec. 1789.
3. Hamilton: Translation of the Hedaya, (London) (1791) Vol. 4, pages 2.90 to 293 and 316, may be seen.
4. Harigton's Analysis of Bengal, Regulations, (1821), Vol.1, page
351. .5 Harrington's Analysis of Bengal Regulations, (1821), Vol. 1, pages 25: to 256.
219B~Types of illegal homicide under Muslim Law For the purpose of punishment, Muslim Law classiﬁed illegal 'iomicide into 5 types, which were as follows:----
I. Wilfzil honz2'cide---It implied in-
Type of homicide Punishment
(a) Death sentence;
tention to kill followed by a (b) Retaliation by the family of the voluatary act.' It was defined as victims was permissible also*, "homicide committed by a res- subiect to certain restrictions**; ponsi' ile person (z'.e. a sane and (c) Exclusion from inheritance adult person) wilfully striking an- property of person slain. other person, with a mortal wea-
pon, or something that serves as such, like a sharp piece of wood, a sharp stone or ﬁre.'~"' Proof of intention was material, but once it was proved, there was no distinction between sud-
den and provoked homicide and cold-blooded murder."-4 Mention of the instrument actually used was regarded as singniﬁcant in ﬁnding out the intention. Use of some blood-drawing instrument and the consequential death of the victim was regarded as wil-
ful hornicidef' There was much difference of opinion regarding the izistruments considered as mortal." But, generally speak-
ing, killing by biting, drowning, successive blows with a whip or a stich. exposure to cold or to the sun, throwing from the roof or top of a hill or into a well or strangling or poisoning was not considered wilful homicide.
And conﬁrrng the victim till the victim died from hunger, was to 1-2. Harrington's U)
4. Analysis of Bengal Laws and Regulations, (1821), Vol. 1, page 251.
* Harrington, page 257.
** For details of "retaliation", see Harrington, Analysis, (1821), Printed Reports of the Sadr Ni- pages 263-266. zamat Adalat Trials, No. 65 of 1805 and I of 1806.
Harrinanton's Analysis of Bengal Laws ofRegulations, (1821), Vol. I, pagg 251, f.n. 3.
Bengal Revenue Consultations da- ted December 30, 1789, cited in Bnnerjee, Background to Indian Criminal Law, (1963), page 39: mp; Harrington, Vol. 1, page 252, Lu. 1, and 253.
. Banerjee, Background to Indian Criminal Law, (1963), page 39, top, citing Bengal Revenue Con- sultatinns dated November, 28 1788 and December, 30, 1789; Harrington, Vol. 1, page 253.
Qatl-i-'Am J.
Shabah-An ld. 2-
Qatl-i-Khalil. 3-
Qatl-i-Qai m.
Maqam-al-el Khata.
Qatl-ba-
Sahub.
. Involuntary . Accidental homz'cz'de--Example gi-
. Harrington, pages 251, 255, 256.
Type of homicide Punishment not wilful homicide. Nor was putting the Victim alive into a grave or killing with a beast, etc.' Quaxz'-deliberate homz'cz'de--Here the Punishable by blood money (Diyut) act was voluntary, but the in- and also by expiation and exclusion strument was not considered as from inheritance*.
one endangering life, so that the intentzbn to kill could not be presumed. Intention to kill is the factor which distinguished wilful homicide from Quasi-de-
liberate homicide."
Erroneous homicide i.e. where there Punishable with Diyut (blood money) was an error in the act or in the and also by expiation or exclusion intention. Illustration of the for- from inheritance.* mer error is an arrow shot at a mark, but actually hitting a man.
Illustration of the latter is an arrow shot at an object mis-
taken to be an animal, and actu-
ally a human being."
lzomz'cz'de----Example Punishable with blood money (Diyut), and also by expiation or given is a gleeping person's fall- exclusion from inheritance.
ing on another and killing him thereby, or death occasioned by the accidental fall of a brick or a piece of wood from the hand of a person.4 Punishable with blood money onb2.** (Expiation is not incumbent, and exclusion is not incurred. Fine is, however, payable in View of illegality of the act).
ven is a person digging a well or setting up a stone, in ground not belonging to him, where another is killed by falling into the well or over the stone.5--'
1. Harrington, Analysis, etc. (1821), Vol. 1, pages 253-256.
*Harrington, page 258.
Harrington, Analysis, etc., (1821), Vol. 1, page 252 and Hamilton, Hidaya, Vol. 4, pages 307-309.
. Hamilton's Hidaya, Vol. 4, page **Harrington, Vol. I, page 259.
277, (London) (1791), and Har- rington's Analysis, etc. (1821), Vol. I, page 252.
5. Harrington, page 253.
Reference to the Fatawai-i--Alam giri, IV, 503 to 553 are cited in Sangar, "Murder and its punishment during the reigns of Shahiehan and Aurangzeb", (I945) 8 Indian History Cong- ress Proceedings 289.
221C.----Other Capital Offences under Muslim Law Other offences punishable with death under Muslim Law at the advent of the British rule were as follows:--
Type of homicide
1. Zina (Unlawful conjunction of the sexes)?
2. Repeated conrnission of the oﬁence of larceny (Sariqa) if the value is not less than IO dirhms (2 to 3 rupees)?
3. Highway robbery (Sariqa-i- Kubra) ----Where murder had been committed (without rob- bery), or both robbery and mur- der had been committed."
I. Harrington, Vol. 1, page 266.
2. I-Iamilton's Hidaya, (1790, Vol. 1, pages 82-84.
3. See Ha.m.ilton's Hidaya, (1791), Vol. 2, pages 124 to r30, and Harrington, Analysis, (1821), Vol. 2, pages 281, 283, discussing the four descriptions of robbery.
Punishment Death pemzlty~Lapidation or stoning to death (Stoning to be com-
menced by \vitnesscs)*----if the offence is committed by a man of sound understanding and mature age and married, with a woman of the same description. (In the case of non-Muslims or unmarried persons, punishment was 100 stripes and in the case of a slave, so stripes).* There were detailed provisions to ensure avoidance of any cruelty or breach of decency in carrying out the punishment.* But death sentence was imposed only when four honourable wit- nesses saw the guilty persons actually in the act.* In fact, even whipping was often remitted during British times.** As an exemplary punishment, death could be inﬂictcd.+ Death Sentence was perniissiblej,' *Harrington, Vol.
I;
268. pages 267, **See Aspinall, Cornwallis in Bengal, (1931), page 62', foot-note 2.
T Harrington, Vol. 1, page 275. In the foot-note, the Fatwa Alam- giri is quoted as directing "The man may put the thief to death for the purpose of seeasut or exem- plary punishment as he is a practised disturber of the peace."
;tHarrignton, Vol. 1, page 282, dis- cussing the third and fourth types of robbery.
III----Capital Punishment under the British rule but before the enact-
ment of the Indian Penal Code.
222APPENDIX XXV III. CAPITAL PUNISHMENT UNDER THE BRITISH RULE BUT BEFORE THE ENACTMENT or THE INDIAN PENAL CODE CAPITAL PUNISHMENT UNDER THE BRITISH RULE, BUT BEFORE THE ENACTMENT or THE INDIAN PENAL CODE.
We may now consider the statutory modiﬁcations made in the Muslim Criminal law during British times, in the period before the commencement of Indian Penal Code. The policy of the British being to interfere as little as possible with the Muslim Penal law, only such modiﬁca- tions were made as were required to remove its glaring defects.
In 1772, for suppressing robbery, a provision was made that dacoits were to be executed in their villages, the vil- lagers were to be ﬁned and the families of the dacoits were to become the slaves of the State,'-2. The provision pena- lising the villagers and the family, however, very shortly ceased to be enforced?
The letter of Warren Hastings, President of the Council dated 10th July, 1773 recorded on the proceedings of Coun- cil dated 3rd August, 1773'', discussed in detail the principles of Muslim Criminal Law as expounded in theory and as applied in practice, and made several suggestions as to severe punishment and for dacoits, irrelevance of instru- ment used for committing homicide, the requirement of two witnesses in the case of positive capital offence, etc. It also throws considerable light as to the origin of sentence of transportation of life in respect of "every convicted felon and murder" not condemned to death by the sentence of the Adawlat'.
The Regulation dated 3rd December, 17905 made several changes.
I. Article 35 of the plan for the administratfon ofjustice in Bengal framed by the Committee of Circuit presided over by Hastings; proceedings of the meeting held on 15 August, 1772 and adopted on 2r August I772 (Judicial Regulations); see Harrington, Vol. 1, page 299.
2. Aspinall, Cornwallis in Bengal, (1931), page 65 f.n. 4, citing Bengal letter to Court dated Nov. 3, 1772.
3. Bengal Revenue Consultations, December 29, 1785.
4. See Colebrooke, Digest, Supplement, Calcutta, (1807), pages H4 et seq.
5. Colebrooke, Digest, Supplement, Calcutta, (I807), page 115.
6. Colebrooke, Digest, Supplement, Calcutta, (1807), pages 141, I43 155, I56. (Regulation for the Administration of Justice in the Criminal »-Courts in Bengal, etc.).
223Regarding homicide, by a Bengal Regulation of 1793 (sections 50, 52, 55, 76, Bengal Regulations 9, 1793 substi-
tutcd by Regulation 4, 1797)-
(a) nature of the instrument as signiﬁying the intention was made immaterial in homicide; the inten- tion was to be gathered from the general circumstanc- es and the evidence; and
(b) the discretion left to the next of kin of the murdered person to remit the penalty of death was taken away'-2.
Thus, the motive, not the method, should determine the sentence". In 1791. the punishment of mutilation was abolished. All criminals adjudged in accordance with the Fativa of law oﬂicers to lose two limbs were to suffer, instead of it, imprisonment with hard labour for 7 years"--5.
Cornwallis, introduced a number of changes in criminal law by the "Cornwallis Code".
(The Cornwallis Code, 1793 really comprised 48 regula- ticns dealing with various aspects of revenue, civil and judicial administration, including jurisdiction and proce-
-dute of Civil and Criminal Codes).
Cornwallis also deprived the relatives of a murdered men of their power to pardon the criminal, and the law was to take its Course".
A Bengal Regulation of 1797 provided that in cases of wilful murder, judgment was to be given on the assump- tion that "retaliation" had been claimed. The sentence could extend to death if that was the prescribed sentence under Mahommedan Law. As regards "ﬁne of blood", the Judges were directed to commute the punishment to impri- sonment---which could extend to life imprisonment7---5.
1. Bengal Regulation 9 of 1793. A Regulation for re-enacting with alterations and modifications, the regulations passed by the Governoer General- in-Council on the 3rd December, 1790, etc. This very comprehensive Regu- latio . contains the fundamental rules for administration of criminal law.
2. Harrington, Vol. 1, pages 312,313.
3. Aspinall, Cornwallis in Bengal, (1931), page 69.
4. Resolution of the Governor-General in Councl of 15 April, 1791, cited in Aspinall, Cornwallis in Bengal, (r93r\, page 74, and foot-note 3 on that page. This was replaced by sect"on 51, Regulation 9 of 1793; Harrington pages 310, 322.
5. See also C0lebro0k's Digest, (Calcutta 1807), Supplement, page 159.
6. Aspinall, Cornwallis in Bengal, (Manchester University Press), (1931), page 69, citing Bengal Revenue Consultations dated 3-12-1790.
7. Bengal Regulation 4 of 1797 (13th March, 1797), section 3.
8. Barrington, Vol. 1, page 313.
Dacoity.
224By the same Regulation of 1797, offenders guilty of put- ting to death "any person on the ground of his or her being versedin and practising sorcery or any other ground such person or persons" were declared to be guilty of murder on being convicted of the crime, and punishable according-
lyl.
By sections 1 to 5, Bengal Regulation 4 of 1799, elaborate provisions were made for the trial of persons charged with Treason and other crimes against the State?
Certain homicides which were regarded as justiﬁable hcmicides under the Muslim Law, were considered as opposed to public justice, and by Bengal Regulation 8 of 1799, such cases were declared liable to capital punishment. These included such cases as the prisoners being one of ancestors of the slain, or being the master of the deceased, or the consent of the cleceased3-4. Death sentence could be passed provided if the court saw no circumstance which may render the prisoner a proper object of mercy.
By the same Regulation (section 5), it was made clear, that wilful homicide by poisoning or by drowning when the 'intention of drowning, etc., was evident was included in the rule" that it is the intention which is material and not ':.'.e manner and instrument of perpetration.
It would appear, that the crime of dacoity was ram- pant in the beginning of the 19th century°--Sir Henry Strachey (while he was Judge of Circuit in the district of Calcutta, in his report in the year 1802) said7, "The crime of dacoity, has, I believe, increased greatly since the British administration of justice.  Of them probably nine-tenths are dacoits."
Mr. Doweleswelll (Secretary to Government) in a re- port on the general state of police in Bengal, said.  An expedient of common occurrence with the dacoits merely to induce confession of property, supposed to be conceal- ed, is to burn the proprietor with straw or troches, until he discloses the property; or perishes in the ﬂames . . . . . . .. if the information obtained is not extremely erroneous, the I. Bengal Regulation 4 of 1797, section 6.
2. Bengal Regulation 4 of 1799, sections 1 to 5.
3. Bengal Regulation 8 of 1799, Sections 2 and 3.
4. Harrirgtor'-, page 314, and foot-rote 1.
5. This rule had also been enacted by Bergal Regvlation 9 of 1793, sec- tion 75.
6. Sir Henry Strachey's Report of 1802, Quoted in B. S. Sinha, The Legal History of Inoia, (1953), page 71.
7. Mr. Dowe1eswell's Report of 1809, quoted in B. S. Sinha, The Legal History of India, (1953), pages 171-172.
225offender, hereafter noticed, himself committed ﬁfteen murders in nineteen days . . . . . . . . ..and volumes might be ﬁlled with the atrocities of the dacoits every line of which would make the blood run cold with terror."
Death sentence was prescribed by Bengal Regulation VIII of 1801 for accidental homicide (as known to Muslim law) occurring in the prosecution of unlawful murderous intention, e.g., shooting at A with intention to kill A and by accident killing B'.
Certain other changes were made, not relevant to capi- tal punishment.
By Regulation XXI of 1795 (as extended in its territorial application, by Bengal Regulation III of 1804) infanticide among "Rajkumars" was declared to be murder2--3.
By Bengal Regulation VI of 1802, the whole practice of infanticicle by drowning was declared to be wilful murder punishable with death''. It was stated that the practice of killing female children had been Widely prevalent in India, and the object was to stop that practice'. The Regulation, however, punished the throwing into sea, river, etc. of "any infant or person not arrived at the age of maturity".
Regarding robbery, by Bengal Regulation 53 of 1803, death sentence was provided for all cases of murder com- mitted in the prosecution of robbery, or aiding, or abetting the same, etc. The Nizamat Adalat was empowered to inflict the capital sentence on habitual and notorious robbers".
Regarding escape by convicts, by Bengal Regulation 53 of 1803. convicts escaping from their places of transporta- tion. if apprehended, were directed to be tried, and on con- viction, were to be sentenced to death7, "if no circumstan- ces appear to the Court to render such convict an object of I. Harrington, pages 317-318; sections I to 6, Bengal Regulation 8 of 1801, may be seen. These sections modify the Muslim law. They require, however, that there must be an intention to murder one person and in pro- secution of such intent-'on an actual homicide of another by accident.
2. Cambridge History of India, (1958), Vol. VI, page 129, bottom.
3. See Bengal Regulation 21 of 1795, section 13 (as extended by Bengal Regulation 3 of 1804, section II).
4. Bengal Regulation 6 of 1802 (zoth August, 1802), Section 2. The Regulation states that the criminal and inhuman practice of sacriﬁcing child- ren by exposing them to be drowned or devoured by sharks was reported to be prevalent at Saugor and other places. It asserts that this is an oifence.
5. Cambridge History of India, (1958), Vol. VI, page 129.
6. Bengal Regulation 53 of 1803, section 3, clause Second.
7. Bengal Regulation 53 of 1803, section 9, clause Second. 16--122 Law 226 Regarding hostility to Government open hostility to the British Government, or actual commission of any overt act of rebellion against the authority of the same, or the act of openly aiding and abetting the enemies of the British Government were, in 1804, declared to be liable to the immediate punishment of death and to the forfeiture of the property, etc, of the convict'. The regulation provided for trial by courts martial and was applicable during times of war or open rebellion, but did not preclude2 the Govern- ment irom causing the persons to be charged under Regu- lations 4 of 1799 and 20 of 1803.
Regarding robbery, Bengal Regulation 3 of 1805 made special provisions". It had been brought to light that many village watchmen and some police otﬁcers were concerned in the preparation of robbery, or Connived at the commis- sion of robbery. Hence the Regulation laid down that any police officer convicted of robbery by open violence or of murder, wounding, maiming or any other aggravating act. in the prosecution of robbery or an attempt to rob was to be sentenced to death. Any direct or indirect connivance at any of these crimes on the part of any police officer was to be considered as its actual commission and punishable accordingly".
By Bengal Regulation XVIII of 1817, persons convicted of murder in prosecution of robbery, burglary or theft were made liable to the sentence of death". By section 15 of the same Regulation, exemption of Brahmins of Benaras from capital punishment was abolished7.
Regarding insane persons, Act 4 of 1849 provided as follows:--
"1. No person, who does an act Which, if done by a person of sound mind is an offence, shall be acquitted of such offence for unsoundness of mind, unless the court or jury, as the case may be, in which according to the Constitution of the Court the power of convic- tion or acquittal is vested shall ﬁnd, that by reason of unsoundness of mind not wilfully caused by himself, he was unconscious and capable of knowing, at the time of doing the said act, that he was doing an act forbidden by the law of the land." (But even in such MI. See BengalRegulation 10 of 1804, sect-'on 3 read with section 2.
2. Bengal Regulation 10 of 1804, section 2.
3. Bengal Regulation 3 of 1805, sections 2 to 6.
4. Bengal Regulation 3 of 1805, sections 2 to 6; Harrington,pz-gas 326 to 329.
5. Harrington, page 328.
6. In 1812, Regulation 15. (Section 2) made ccrta'n special prov:'s'or5. for punishntent of burglary particularly bctvveer. s1'n--sct and sun-rise; H2rr.?rg- ton, pages 329-330.
'7. Field, Regulations of the Bengal Code (1875), page 175, foot-rote 2. Bengal Regulation 17 of 1817, section 15.
227acquittals, the court was to order him to be kept in safe custody until the orders of the Government were received)'.
Regarding waging war, in the year of the Indian Mutiny, waging war and other offences against the State or instiga- tion of the same was made punishable with death or trans- portation for life or rigorous imprisonment up to 14 years in addition to forefeiture of property. etc'.
Mutiny. an earlier Act' had provided that every person who "maliciously and advisedly" endeavour- ed to seduce any person or persons, in the military or naval . . . . . . .. .Forces of the East India Company from allegiance to Her Majesty or duty to the said Company, or endeavoured to stir up any person or persons to commit mutiny, etc., was on conviction to be transported for life or imprisoned up to 7 years.
Regarding In 18574, the offence of intentionally seducing or endea- vouring: to seduce any officer or soldier from his allegiance to British Government or duty to East India Company, excitine or causing others to excite mutiny or sedition in the army was made liable to the punishment of death or transportation for life or imprisonment with hard labour up to 14 years, besides forefeiture, etc. Later, the 1858 an Act5 was passed to deal with persons who had escaped from jails during the mutiny. Punishment was transportation for life--secti0ns 1 and 2.
The offence of waging war was dealt with by Act 11 of 1857, preamble and section 1 of which may be quoted:'' "WHgRr.As it is necessary to make due provision tor the prevention, trial, and punishment of offences against the State; it is enacted as follows:----
1. All persons owing allegiance to the British Government who,' after the passing of this Act, shall rebel, or wage war against the Queen or the Govern- ment of the East India Company, or shall attempt to wage such war, or shall instigate or abet any such rebellion or the waging of such war, or shall conspire I. An Act for the safe custody of cr;'m'nal lunatics. Act 4 of 1849, sections I and 3.
2. Act II of 1857.---.An Act for the prevention, trial and punishment of offences, against the State. (30 May, 1857).
3. Act I4 of 1849. An Act to punish tamperirg with the Army or Navy (25th August 1849', Section 1.
4. Act 14 of 1857, Section I (Duration was for one year, see sccton 7.1).
5. Act _<, of 1858--An Act for the punishment of certain offenders who have escaped from jail and of persons v.'hO Shall knowingly harbour such otfendcrs.
5- AC1 11 0f 1957. PM Act for the prcvcnti m, trial axd punishm/'rt of offences against the f:tat: (3ot'z May, 1857).
Preamble.
Punishment for rebellion or waging war against the Govern-
ment.
Proviso.
Punishment for any heinous offence in Districts or place sub-
iect to Martial law or to which this Act is ex-
tended.
Interpreta-
tion of the words " heinous offence ".
228so to rebel or wage war, shall be liable, upon convic- tion, to the punishment of death, or to the punishment of transportation for life, or of imprisonment with hard labour for any term not exceeding fourteen years; and shall also forfeit all their property and effects of every description.
Provided that nothing contained in this section shall extend to any place subject to Regulation 14 of 1827 of the Bombay Code".
Regarding the offence of preparing to wage war, we may refer to Act 26 of 1858 (corresponding to section 122 of the Indian Penal Code), under which the collection of man, arms, ammunition or otherwise preparing to levy war against the Queen or the East India Company or instigating any other person to commit such oifence, was punishable with death or transportation for life or imprisonment for life or imprisonment with hard labour up to 14 years, and also forfeiture of all property and effects of every descrip- tion'.
An Act2 of 1857 should also be referred to, which made provisions for trial of heinous offences" in certain districts in which martial law had been established".
Sections 1 and 2 of Act 16 of 1857 may be quoted:----
"I. Whoever shall commit or attempt to commit any heinous offence in any District or place in which Martial Law hath been or shall be established, or in any District orplace towhich this Act shall be extend- ed by order of the Governor General of India in Council. shall be liable, on conviction to the punishment of death, or to the punishment of transportation for life, or imprisonment With hard labour for any term not exceeding fourteen years; and shall forfeit all his pro- perty and effects of every description.
Ill. The words "heinous oﬁence" shall be deemed to include an attempt to murder, rape, maiming, dacoity robbery, burglary, knowingly receiving property obtained by dacoity, robbery or burglary, breaking and entering a dwelling house and stealing therein, intentionally setting ﬁre to a village, house, or any public building, stealing or destroying any property provided for the conveyance or subsistance of Troops, and all crimes against person or property attended with I. Act 26 of 1858, (section 1) (Temporary).
2. Act 16 of I857. An Act to make temporary provision for tre trial and punishment of heinous oﬂerices in certain districts (13 June 1857).
3. The expression, "heinous oﬁences" was deﬁned by an inclusive deﬁ- nition---section 2, Act 16 of 1857.
4. Court-Martial could be established under Act 14 of 1857.
229great personal violence, and all crimes committed with the intention of assisting those who are waging war against the State or forwarding their designs."
The broad features of the Muslim Criminal law, as alter- ed by Regulations on the subject, before the Indian Penal Code was enacted, may be indicated.
Regarding sentences. it was felt.'-2 that the discretion which the Muslim criminal law left for henious crimes was rather unlimited, and its administration became arbitrary and uncertain. In the adjudiciation of punishment under the discretion thus allowed, the position regarding sent- ence (it was stated) was often governed by a consideration of the degree of proof rather than the degree of guilt and criminality of the act established against the accused. It was considered necessary to amend the law on these points, and that was done by a Bengal Regulationi'.
Before this, the position was that the sentences of the court were to be regulated by Muslim law except in cases in which a deviation from it was expressly directed by any Regulation".
The operation of the law may be illustrated with refer- ence to an actual case. Four persons were charged with murder. The principal was sentenced to death, one con- victed of being an accessory before the fact and of bring- ing a false accusation of murder against an innocent person was sentenced to imprisonment for life; the remaining two convicted of privity of crime after the fact and concealing their knowledge thereof, were sentenced to imprisonment for three years"'.
The rule of the Muslim law, that if any one of the gang of robbers commits murder, the prescribed punishment is inflicted on the whole, was maintained?
In cases of murder, wounding or other personal injury, a description of the weapon or other instrument said to have been used in the perpetration of the act Was to be recorded in the papers including such particulars as are available to ﬁx the intent of the prisoner, the length of the instrument, its general form. if not one in common use, etc?
I. Beaufort. Digest of Criminal Law, (1846), page 16, paragraph 45.
2. Section I, Bengal Regulation 53 of 1803.
ff 3. Bengal Rcgulaticn 53 of 1803, section 2, paragraphs ﬁrst to ith.
4. Beaufort. Digest of Criminal Law, (1846) page 19, paragraph 59, Bengal gulntion 9 of 1793, scctions 54 and 74,
5. Beaufort. Digest of Criminal Law, C1846; page 3;, paragraph, 135 referring to Nazamut Adawlut Report, Vol. 4, page 235.
6. Beaufort, Digest of Crim'nal Law (1846). page 37, paragrapig I39.
7. Beaufort, Digest of Crimiral I aw (1846), page 143, paragraph 769 Citing C.O. No. 54 of Vol. 2, page 4.
British subjects.
230It was recognised that there was a great difference between an offence entered upon with deliberation and a Criminal intent and one committed with premediation and unprovoked by previous enmity and malice. Intoxication was considered as a ground of mitigation for punishment in certain cases, unless wilful'.
In all cases where the Sessions Court condemns a pri- soner to suffer death penalty or imprisonment for life, it was to transmit a copy of the sentence to the Nizamut Adawlut, and not to execute the sentence till the ﬁnal sentence of that court2--" (the Nizamut Adawlut).
There seems to have been some controversy as to whether a person who is compelled by another by a menace of death to murder a third person, could be excused for the murder. One View was, that in such cases the person compelled, as the "instrument" rather than the author of the homicide, and therefore, subject to discretionary punishment only if the circumstances of the case so re- quired. Another View was, that both the parties were liable to murder."
Special mention must be made of the law applicable to "British" subjects (*L.e., those who were not "natives"). From the Report No. 31 of the Indian Law Commissioners to the Governor General, dated 4th November, 18435, it would appear, that they were regarded as governed by the English law. Act 31 of 1838 embodying the provisions of criminal law passed in the ﬁrst year of Queen Victoria amended the law on the subject. Its principal object was to take away capital punishment in certain cases, and to mitigate the rigour of the law in other respects.
Brieﬂy speaking, the following offences were removed from the category of capital offences; (in respect of "British" subjects):--
(1) Malicious injuries;
(2) Burglary;
(3) Robbery;
(4) Burning and destroying ships.
1. Beaufort, Digest of Criminal Law, (1846), page 33, paragraph I17.
2. Bengal Regulation 9 of 1793, section 47.
3. Beaufort, Digest of Criminal law, (1846), page I47, paragraph 199, and page 157, paragraph 850.
4. See Beaufort, Digest of Criminal Law, (1846), page 29, paragraph 93, and page 33, paragraph 118.
5. Report No. 31, of the Indian Law Commissioners to the Governor General, dated 4-II-I843, printed in copies of the Special Reports of the Indian Law Commissioners, (1844), page 335, at pages 338 and 339, see paragraphs 2o-22.
2.31 As enun1eI'.s?;e,: In that rep~;2rt of 1843', ilences (in respect of British subjects) which remained capitalfxfter Act 31 of 1838*' (an Act of the Government of India) and the Statute Geo. 4}. c. 74" (passed earlier to remove cer- 'tain offences from the category of capital offences) were i,'.\'Cl'.'e_, namely: --
(I) Return from transportation; (2) Murder;
(3) Attempt to murder, when injury inflicted; (4) Sodomy;
<5) Rape;
(6) Abuse of female children under eight years of age;
(7) Robbery with wounding;
(8) Burglary with assault (with intent to murder) ;
(9) Arson, where person within house, and life endangered;
(10) Riotously destroying buildings; (11) Destroying ships, and life endangered; (12) Exhibiting false lights.
The Report recommended that it was not expedient to give the "provincial tribunals" jurisdiction over British-born subject in capital cases.
APPENDIX XXVI I.IsT or CAPITAL OFFENCES UNDER BOMBAY REGULATION X11.' or 1827, AND PROVISIONS THEREIN REGARDING OFFENCES WHICH ARE NOVV CAPITAL.
1IIA--LIsT or CAPITAL OFFENCES UNDER BOMBAY REGULATION XIV or 1827 AND PROVISIONS THEREIN REGARDING OFFENCES WHICH ARE Now CAPITAL.
The Bombay Regulation of 1827 (XIV of IS 7), "a Regulation for deﬁning crimes and of'ences and specifying the punishments to be inflicted for the same" was passed by the Governor-in-Council on 1st January, 1827. Its Important provisions of Interest in connection with capital punishment are noted below:--
Section 1--clause 2d.--Attempts----"An attempt to com- nii.' any oi' the acts: shall be punished according: to tne Court's judgment iottndcct on a combined consir}.erAtion . Report No. 31 of the Indian Law Co ';11T'.lSSl0I'.C!'S, etc. . Act 31 of I838.
. SLLLUILC 9 Geo. 4, c. 74.
. Section I, clause Ist covered all sections punishable under the Code.
H .;..m N 232 of the measure of guilt attempted and committed, but the punishment for such attempt shall in no case exceed that prescribed for the actual commission of the oﬁ'ence attempted."
Section 1--clause 3d.--Negligence--"The unintentional commission of any of the above acts shall be punished ac- cording to the Court's judgment of the culpable disregard of injury to others evinced by the person committing the said act, but the punishment for such unintentional com- mission shall not exceed that prescribed for the offence committed."
Section 1--clause 5th--Instigation and -abetment--"Insti- gating or aiding in any of the above offences committed or attempted, shall be punishable as the respective offences; and in treason, rebellion, murder, or gang robbery, con- cealment whether before or after the fact, shall be punish- able equally with instigation or aid."
Section IlI----clause 1st--(Table item First) authorised the punishment of death in accordance with the rules pres- cribed in the succeeding section.
Section IV dealt with the mode of inflicting punishment of death. Under clause lst, hanging the criminal by the neck was the mode of carrying out the sentence, and it was also stressed that the time should be between sunrise and sunset, and the spot should be selected in such a way a.s may afford the greatest possible publicity to the execu- tion. Under clause 2d., it directed that the executions should be conducted in a manner calculated to impress the spectators with awe and to increase the impression on the spectators. Under clause 5th, death was not to be inflicted on Brahmins or on females in districts, Where the religious feelings of the native community would be shocked there- by, unless in cases of such deep atrocity as may be ex- pected to counteract the effect of those feelings.
Section XlI--clause 1st--deﬁnes "treason" and under clause 2d. the punishment of treason shall be death and conﬁscation of property.
[Note:--Under Regulation I of 1827, sections VIII and IX, in case of war or rebellion, the Governor-in-Council by proclamation could suspend the civil and criminal law for public safety and during such suspension the GoVernor-in- Council could order acts of treason, or rebellion a.gainst the British Government committed by persons owing by birth or residence allegiance to the said Government to be tried by court martial and the immediate punishment of death '».'~ as authorised] Under section XVI. clause 2d. the offence of pmrjttry was fined with imprisonment, ﬂogging or public disgrace, etc.
233Section XXVI, clauses 1st, 2nd, 3rd and 4th dealt with murder, as follows:--
Clause lst~--"Any person who shall purposely, and without justiﬁable or extenuating cause deprive a human being of life, or who shall commit or assist in any un- lawful act, the perpetration of which is accompanied with the death of human being, shall be liable to the punish- ment of murder, provided always that death take place Within six months after the act was committed."
Clause 2d.----"The belief that sorcery was practised by the deceased shall not be admitted as a justiﬁable cause for putting him or her to death, nor shall the deceased's own request be so admitted; by assisting at any rites of self- tmmolation, as directed by the religious law of the person performing such immolation, shall not subject any one to the penalty of murder."
Clause 3d.-----"Deprivation of life may be considered justiﬁable as a means of resistance (provided it be the only evident and efﬁcient one) to violence offered to the person or property of any one. or as the only evident and efficient means of securing a person who has committed robbery or murder, or any other atrocious offence."
Clause -ith--"The punishment of murder shall be death, transportation, imprisonment for life, or solitary imprison- ment with flogging."
Under Section XXVII, culpable homicide was deﬁned as folloWs:----
"Any person who shall, by committing or assisting in any unlawful act, occasion the death of a human being, provided, as before, that death ensue within six months after the act was committed, under cir- cumstances which the Court. in judging of the act, intention and cause. considers though not justiﬁable under the preceding section, yet sufficiently extenuat- ing to divest the act of so much criminality as would constitute murder, shall be deemed guilty of culpable homicide. and shall be punishable with fine, or im- Drisonment not exceeding ten years, or both com- bined."
Undes' section XXXVH, clause lst, gang robbery com- mitted by day or night, when accompanied with force, was punishable in any of the modes speciﬁed in section III, Except conﬁscation. This included the punishment of eat .
Murder deﬁned.
The belief that the deceased was sorcerer not admitted without justification, provision regarding self-immo1a-
tion pres-
cribed by the sufferer.
Certain causes may justify the taking away of life.
Punishment of murder.
234APPENDIX XXVI1 l"tliCO.Vll\/Il:)l\'DA'l'IO;\KS or THE INDIAN LAW COIx/llVIlSSIONl7.'RS Drajt Penal Code, 1837 The l)rai't Penal Code (First Report) was prepared by the lndian Law Commissioners and submitted in 1837. After stating the reasons for proposing. the enactment of a uniform Penal Code to take the place of the rules of Muslim laws and the various Regulations modifying it or in Bombay codifying the Penal Law' and explaining the scheme of the proposed Code", they proceded to set out the recommendations in the form of a Bill. Under clause 40, one of the punishments to which offenders were liable was death. The next was transportation". Clause 41 gave power to commute the sentence of death to the Govern- ment of the Presidency without the offender's consent. The offences which were made capital seem to be the following:----
Clause 109--waging war etc.-- (death or transportation for life or imprisonment of either description for life and also forfeiture of all property).
(Clauses 116 and 1l7--abetting mutiny etc.----only transportation for life etc.) (Clause 19l--Giving, etc., false evidence with the in- tention, etc., that any person may be convicted of capital oifence--transportation for life or rigorous imprisonment not less than 7 years, etc. But where innocent person was executed, it was regarded as culpable homicide.--see clause 294, illustration (d).
Clauses 294, 295 and 300--~murder------death or transpor- tation for life or rigorous imprisonment for life and also ﬁne.
(There were lesser punishments for manslaughter, voluntary culpable homicide with consent or in defence and for causing death by rash or negligent act.) Perjury--illustration (d) to clause 294 ran as fol1ows:----
"(d) A with the intention or knowledge aforesaid falsely deposes before a Court of Justice that he saw Z commits a capital crime. Z is convicted and execut- ed in consequence. A has committed the offence of voluntary culpable homicide".
Clause 306--preuiously abetting by aiding the commis- sion of suicide by any child under 12 years of age, any I. Penal CS6 prepared by the Indian Law Commissioners, 1837, pages 1-4.
2. 837 Draft, pages 6-11 (preface).
3.
/'V1 {LIEUSGS 308, 309 read with clause 320--voluntary caus- ing hurt in an attempt to commit murder--transportation for life, or rigorous imprisonment for a term which may extend to life but not less than 7 years and also ﬁne).
Clause 380--Dac0ity with muirder---If any one of six or more persons who are conjunctly committing dacoity com- mits murder in so committing dacoity, every one of those persons shall be punished with death or transportation for life, Or rigorous imprisonment for a term which may ex- tend to life and must not be less than 7 years and shall also be liable for fine.
We now come to the reasons given by the framers of the 1837 Draft in support of the various provisions relat- ing to the death sentence suggested by them. As regards death sentence generally, their observations were as fo1lows':--
"First among the punishments provided for offenc- es by this Code stands death. No argument that has been brought to our notice has satisﬁed us that it would be desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparing- ly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed".
They were not apprehensive that they would be thought to have resorted too frequently to capital punish- ment. Rather they were afraid that people might criti- cise the Code as erring on the other side. In this context, they discussed the question whether gang robbery, cruel mutilation of the person and rapes should be punishable with death. "These are doubtless offences which, if we looked only at their enormity, at the evil which they pro- duce, at the terror which they spread through society, at the depravity. . . . which they indicate, we might be includ- ed to punish capitally. But atrocities as they are, they cannot, as it appears to us, be placed in the same class with murder." "To the great majority of mankind, noth- ing is so dear as life. And we are of opinion that to put robbers ravishers, and mutilators on the same footing with murderers is an arrangement which diminishes the security of life?"
They observed, that there was a close connection in practice between murder and most of those offences which came nearest to murder in enormity. The offender in 17837 Draft, Note A, page 1, top.
2. 1837 Draft, Note A, page 1, middle.
General Principl c for death sentence.
Robber)' and rape in 1837 Dfraft.
Offence against property.
Commuta-
tion.
Compensa-
tion.
236those offences had always in his power to add murder to his guilt. The same opportunities, etc., which enabled a man to rob, to mangle, or to ravish, would enable him to go further and to despatch his victim. By doing so, he would remove the only witness of the crime. If the punishment of the crime which he has already committed be exactly the same with the punishment of murder, the offender would have no restraining motive. "A law which imprisons for rape and robbery, and hangs for murder, holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured. A law which hangs for rape and robbery, and which also hangs for murder, holds out, indeed if it be rigorously carried into effect, a strong motive to deter men from rape and robbery, but as soon as a man has ravished, or robbed, it holds out to him a strong motive to follow up his crime with a murderl."
Regarding crimes against property, the framers of the draft observed'~', that a great shock would be caused to public feeling if, While the most atrocious personal out- rages (short of murder) were exempted from punishment or death, that punishment was to be inﬂicted even in the worst cases of theft, cheating, or mischief.
Regarding the power of commutation it was observed that it was evidently ﬁt that the Government should be empowered to commute the sentence of death (without consent of the offender) for any other punishment.
Of some interest are the observations regarding com- pensation for crime". The framers recognised that this was a matter of the law of procedure, and of civil rights. But they were decidedly of the opinion that "every person who was injured by an offence ought to be legally entitled to a compensation for the injury" and recommended that in every case in which ﬁne was part of the punishment of and offence, it ought to be competent to the tribunal which has tried the offender (acting under proper checks) to award the whole or part of the ﬁne to the sufferer, provid- ed that the sufferer signiﬁes his willingness to receive what is so awarded in full satisfaction on his civil claim for reparation. They thought it likely that" this plan would be in great majority of cases render a civil proceed- ing unnecessary.
We may now refer to their discussion relating to speci- ﬁc crimes.
1837 Draft, Note A, page 1, middle.
1837 Draft, Note A, page 2, top.
1837, Draft, Note A, page 9, middle and bottom. . 1837 Draft, Note A, page 10, top.
+".*'!".""
237Homicide.--The question of illegal omissions was elabo- rately considered'. The 'expression "causing death" in the deﬁnition of voluntary culpable homicide was explained, and the View was expressed that acts or illegal omissions which did not ordinarily cause death, or caused death very remotely, need not be excepted. There was undoubtedly a great difference between acts causing death immediately and those causing a death remotely, or between acts certain to cause death and those which cause death only under very extraordinary circumstances. But the difference was one to be considered by the tribunal when estimating the effect of the evidence in a particular case, not by the legislature in framing the general law. It would require strong evidence, they said to prove that an act of a kind which very seldom causes death, or an act which caused death very remotely, has actually caused death in a parti- cular case. It will require still stronger evidence to prove that such an act was contemplated as likely to cause death. But if satisfactory evidence proved that death was so caused voluntarily, it need not in their opinion, be cxclud- ed from the punishment for voluntary culpable homicide."
The case of homicide by words was considered. A verbally directs Z to swallow a poisonous drug. Z swal- lows it and dies. This should be homicide in A and for the purpose, speaking should be considered as an act3.
Regarding the case of a person who died of a slight wound which, from neglect or from the application of im- proper remedies, has proved mortal, the framers saw no reason in excluding it from the general rule. They noted, that in India, fear, neglect and bad treatment were far more common than good medical treatment'.
The scheme of the proposed section relating to homi- cide was that voluntary, culpable homicide was murder unless it fell within three mitigated forms, namely, (1) grave and sudden provocation (in which case it was "man- slaughter"), or (ii) committed by consent or (iii) commit- ted in defence?
Regarding, provocation, the framers agreed that homi- cide in such cases ought to be punished, in order to teach men to entertain respect for human life and give them a motive for governing their passions; but homicide commit- ted in violent passion on provocation should not be visited with the highest penalties of the law. To treat such a person in the same way as the law treated a murderer
1. 1837 Draft, Note M, pages 53-56. . 1837 Draft, Note M, page 57, top. . 1837 Draft, Note M, page 57, middle. . 1837 Draft, Note M, page 58. . 1837 Draft, Clauses 295, 297, 298 and 299.
kn-$sU)N Provocatio n.
Homicide by con-
sent.
Reasons fo punishing murder severely.
238would be highly inexpedient, would shock the universal feeling of mankind and would engage the public sympathy on the side of the oﬂender against the law'.
Provocation by words was also considered, and the rule of the English law not recognising the effect of anger excited by words alone was criticised? If a man felt an insult more than a wound, it did not show that he was a man of peculiarly bad heart.
Homicide by consent was treated as a mitigated form. Such an act should be punishable, of course, because a wise law--giver would desire to prevent such death, if it were only for the purpose of making human life more sacred to the multitude. Consent ought not therefore be a justification for the intentional causing of death'? But they felt that it should not be punished as severely as murder, for these reasons:--
(i) The motives which prompt man to the coin- mission of the offence were generally far more respect- able than those which prompted men to commit murder;
(ii) Such crime was by no means productive of so much evil to the community as murder. It did not produce general insecurity or spread terror through society. When the law punished murder with seve- rity, it had two ends. One end was that people may not be murdered, and another that people may not live in constant dread of being murdered; and the second was perhaps more important that the ﬁrst. This "property" of the offence of murder was not found in homicide by consent'.
It was also noted, that the burning of a Hindu widow by consent was not (even under the law then in force) punished as murder, though it was an oﬂence under the Regulations in force in the Presidencies.
Regarding homicide in self defence, the framers admit- ted that they were "forced to leave the law on the subject of private defence in an unsatisfactory state". They ex- pressed the fear, that it must always continue to be one of the least precise parts of every system of jurisprudence. The portion of the law relating to homicide in defence must necessarily partake of the imperfections (of law of self-defence). The reason for treating this kind of homi- cide as less than murder Was, that law itself invited men to the very verge of the crime designated as voluntary culpable homicide. The law authorised acts which were 1, 1837 Draft, Note M, :3 age 59, second to fourth paragraph. 2_ 1837 Draft, Not: M, pig», 59' ; t two prragraphs.
3. 1837 Draft, Nctc B, page 16, bottom and page 17, top.
4. 1837 Draft, Note M, page 6x, bottom.
239very near to homicide, and this circumstance greatly miti- gated the guilt'.
The tojoic of causing death try say. rashness or negli- gence as to indicate want of due regard for human life does not seem to have been separately dealt with in the notes, though clause 304 made it punishable with impri-- soninent up to two years or tine. sic.
Brit death in cause of fr.-lon'=:--#i.c_ the situation where a person engaged in the commission of an offence causes death by rashness negligence ' vitioii or (without any in;
to cause death or knowledge that it is likely to (raise oeath. etc.) was elaborately discussed. along: with the situation where a person engaged in the is-...vznmissi<>n of 2:'.- offence caused death by pure accident".
Attempts to commit. murder and atlenipt to cornnii: 1;:-e "mitigated forms" of a voluntary culpable homicide were explained' and illustrated. An interesting exainple gi'-.«'»;>n was_----A sets poisoned food before Z. Z does no'; swallow enough of the poisoned food to disorder nun A iould be treated as guilty of a Crime of a most atrorzious descrip- tio-'5'. It was emphasised. that such an act (i.e. attempt to commit murder) should be punishable notwl hstan-ding that it does not amount by itself to assault, trespasg. or hurt. lf hurt was caused in an attempt to commit rnurdei: it would be punishable (under clause 320) with transporta- tion for life, etc., where murderous intention is made out severity of hurt should not be a circumstance to be con-- sidered in apportioning punishment though it may be im-- portant as evidence.
Treason was discussed in detail. It was noted, that there was some doubt as to whether the statute law of England (regarding Treason) was binding on natives. Apart from the Bombay Regulation 14 of 1827 (wherein there was a sweeping clause empowering the courts to award punishment in any case in which they conceived that morality and social order required protection), treason was not an offence under any other Regulation. "The Mahomedan law might possibly be so Violently strained as to reach it in Bengal and in the Madras Presidency." But those provisions could not be retained. That is hy a speciﬁc section was proposed on the subject. Regard- ing the Royal person, it was felt that it was impro':oable that any English King would visit the Indian dorninions, and therefore specific provision was not necessary. But levying of war against the British Crown should. it observed" be made punishable. The framers of the l83T I. 1837 Draft NOIC M, page 62, middle. 7
2. 1837 Draft ,\'ot« M, pages 63, bottom, 6.; and 65, middle, and clause 305.
3. 1837 Draft, Note M, page 66, top and middle.
4. n73 Draft of the lndian Pcml ('odr:, Page L\'otv M, pagi 69, Second paragraph.
Rash negligent homicide.
'l'rcaso 240 Code also explained1 why the anomalous position regard- ing treason prevailed. The British Rulers in India, in the beginning, disguised their real power "under the forms of vassaiage", and left "the Mogul and his Viceroys the empty honours or' a Sovereignty which was really held by the Company". This policy was abandoned only slowly and by degrees. Hence it was impossible to point out the parti- cular time when the "natives" became British subjects.
Reasons for making abetment of hostilities against the Government in certain cases a separate offence (-instead of leaving it to general abetment) were also explained?
Firstly, the general rules of abetment would not reach a person who, while residing in the British territories abet- ted the waging of war by a foreign prince against the British Government. (The foreign prince himself would not be guilty of an offence by waging such war). Second- ly, though in general, a person who is a party to the Cri- minal design which has not been carried into effect ought not to be punished as if the design had been carried into effect. yet an exception should be made with respect of High offences against the State. Crimes against the State had this peculiarity that if they were successfully com- mitted, the criminal was "almost always secure from punishment." After murder, the murderer is in greater danger than before murder. "But the rebel is out of danger as soon as he has subverted the Government." Hence the Penal law "should be made strong and sharp against the first beginning of rebellion, against treasonable designs, which have to be carried no further than plots and pre- parations." For this reason, such plots and preparations should not be left to the ordinary law of abetment.
Mutiny----Detailed reasons for punishing abetment of mutiny were given? A person who, not being himself subject to Military law, extorts or assists those who being subject to Military law, commit breach of discipline would "be a proper subject of punishment". But the general law respecting the abetting of offences will not reach him, be- cause the Military delinquency which he has abetted would not be punishable by this Code, and therefore would not constitute an "offence". Explaining their approach regard- ing punishment for such abetment, the framers of the 1837 Report stated that while the general rule which they had adopted was that the punishment of the abetter should be equal or proportional to the punishment of the person committing the offence, yet in this case they had depart- ed, for these reasons :--
"But the Military penal law is, and must necessarily be, far more severe than that under which the body of the
1. 1837 Draft of the Indian Penal Code, Note p2g«: 28, top.
2. 1837 Draft, Note C, page 28, middle.
3. 1837 Draft, Note D, page 30, bottom.
241people live. The severity of the Military law can be Justi- tied only by reasons drawn from the peculiar habits and duties of soldiers, and from the peculiar relation in which they stand to the Government. The extension of such severity to persons not members of the lvlilitary profes- sion appears to us altogether unwarrantable." They also added that if a person "not in Military" who abetted a breach of Military discipline was made liable to a punish- ment regulated "according to our general rule by the punishment to which such a breach of discipline renders a soldier liable, the whole symmetry of the penal law would be destroyed." A person who induces a soldier to disobey any order of a commanding officer would be liable to be punished more severely than a dacoit, ravisher, etc. _ Perjutry--The framers of the 1837 Draft expressed this view :# "If such false evidence actually causes death. the person who has given or fabricated it falls under the definition of murder, and is liable to capital punish- ment. In this last point, the law, as we have framed it. agrees with the old law of England, which. though in our opinion, just and reasonable, has become obso~ lete"'.
Dacot'ty----The following observations are interesting2:----
"His Lordship in Council will perceive that we have provided punishment of exemplary severity for that atrocious crime, which is designated in the Re- gulations of Bengal and Madras by the name of Dacoity. This name we have thought it convenient to retain for the purpose of denoting, not only actual gang robbery, out the attempting to rob when such an attempt is made or aided by a gang."
General view of criminal law as prevailing in 1837.
A picture in brief of the position regarding criminal law as obtaining in 1837 will be found in the Law Commis- sioners' Report of that years"
The printed draft of the Indian Penal Code was sub mitted to the Government of India on 14th October, 1837. Thereafter, Government requested the Indian Law Com- missioners to examine the opinions received on the 1837 draft and also to study the draft Act contained in the seventh Report of the Commissioners on Criminal Law of England and to give their Report accordingly. The I. 1837 Draft, Note G, page 42, bottom.
2. 1837 Draft, Note N, page 79, middle.
3. 1837 Report, main Report, pages I to 4.
17--122 Law.
242Indian Law Commissioners submitted in 1846 their Report' (First Report) of the draft Penal Code. Later, in 1847, they submitted their Second and concluding Reportz (Second Report on the Indian Penal Code) on 24th June, 1847. After this, Sir Lawrence Peel, Chief Justice of the Supreme Court at Fort_Williams (previously Advocate- General), having received from the_ Government the Report of the Law Commissioners, studied it and gave his observations to the Government in 1848".
It is not necessary to state each point dealt with_by the Law Commissioners in 1846; but a few points which are still of interest may be noted:----
(a) Homicide--Death caused by words was speci- fically dealt with in the discussion in the 1837 draft, and the 1846 Commissioners also dealt with it in detail and came to the conclusion" that if death is certainly caused by words deliberately used by a person with intention to cause that result, or with the knowledge that in the condition of the party to whom the words are spoken it is likely that the words will make such an impression on him as to cause death, and without any such excuse as it admissible under "General Excep- tions", such person should suffer the penalty of culp- able h0micide:----
Here is the wilful doing of that which is known to be likely to produce evil, manifesting the mens Tea. essential to criminal responsibility, the evil produced is death, the eﬁicient cause,--the words spoken. It is scarcely agreeable to reason, that having traced the effect to its cause, the law should refuse to acknow- ledge it as an eifective cause; or that the Judge should be obliged to say, it is true that the effect was produc- ed by the operation of the Words, but Words in law are not an act, therefore the speaker is not criminally responsible.
Death resulting from a slight wound which from neglect or from the application of improper remedies has proved fatal was considered in detai15.
Provocation by words was speciﬁcally considered, and the proposal in the original Code to cover such provocation z'.e. not to recognise any distinction bet- ween provocation by mere words or gestures and other provocation, was approved".
I. Report dated 23-7-I846, of the Indian Law Commissioners, on the Draft Indian Penal Code.
2. Report dated 24-6-1847 (Second Report of the Indian Law Commis- sioners, on the Draft Indian Penal Code).
3. Observations of Sir Lawrence, Peel, on the Draft Indian Penal Code (1848).
4. I846 Reort, page 77, paragraph 249.
5. 1846 Report, pages 77-80, paragraphs 250 to 257.
6. 1846 Report, pages 83-84, paragraphs 269 to 273.
243Other points relating to provocation were consi- dered'.
The topic of voluntary culpable homicide by con- sent was considered and the proposed provision that such homicide should not amount to murder was approved, with a slight modification, namely, the con- sent should have been given not only by a person above 12 years of age but by a person capable of mak- ing an intelligent choice?
Voluntary culpable homicide in defence---the provi- sion reducing it to manslaughter--was approved in principle".
Regarding punishment for murder, a comment on the 1837 draft had been received from Mr. Hudleston, :1 Judge of the Sudder Court of Madras," stated5--"I prefer the provisions of our Regulations, which deﬁne the grounds for mitigating the capital punishment." On this comment, the 1846 Report noted'', that Mr. Hud. leston had not speciﬁed the provisions which he had in mind. "In the general law relating to murder in the Madras Regulations, which Mr. Hudleston must be understood to refer to, there is no such deﬁnition. But a discretion is given to the Judges not to pass sen- tence of death, if there appear to them to be "alleviat- ing circumstances" in the case--a discretion suﬁ'icient- ly arbitrary."
The topic of rash or negligent homicide--clause 304 of the 1837 draft----was approved after discussion.7 The case of a man attempting to commit a rape on a woman and in the attempt involuntarily causing her death--clause 305, illustration in the 1837 draft--wa.s considered, and the proposal in the draft approved''. [The illustration was to the effect that in such a case, the homicide was culpable but not voluntary, because death was an effect wholly unexpected and unconnect- ed with the intention and act of the party, except by accident. Mr. Pyrne (Judge Sudder Court Bombay) had stated that it was possible that rape of delicate woman may cause death for example, rape was com- mitted on an infant of 6 or 7 years of age; death ensues therefrom}. (He had stated that a recent case 1846 Report, pages 85-86, paragraphs 274-279.
1846 Report, page 92, paragraph 294.
1846 Report, pages 93-95, paragraphs 296-302.
See 1846 Report, page 2, last paragraph and side rote. 1846 Report, page 95, paragraph 303.
1846 Report, page 95, paragraph 303.
1846 Report, pages 96-100, paragraphs 309 to 314. I846 Report, page too, paragraphs 315 to 317.
'/3'-"F"'."'."':"""' Mitigating circumstan-
ces.
Rape.
244had come before the courts). As to this, the Report pointed out that it was voluntary culpable homicide death being likely.
(b) Abetment of suicide------Clause 306 of the 1837 Report had proposed the punishment of death (apart from other alternative punishment) for abetment of suicide of a child under 12 years, any insane person etc. A comment from Mr. J. F. Thomas had been re» ceived to the effect that the inducement to commit such crimes must in the ordinary course of events be so exceedingly slight that it scarcely seemed necessary to place the offence on a level with the most atrocious murder, and annex the penalty of death. In his opi- nion, a lesser penalty would suﬂice to check the com- mission of the crime. Mr. Thomas particularly refer- red to the deﬁnition that "acts" included an illegal omissions and pointed out that instances of suicides which could be prevented by persons were numerous and "at present they have not the most remote idea that they are acting criminally" and that they should not be held liable to the heavy penalties. As to this, the 1846 Report1 observed that clause 306 was based on the same principles as clause 298, second proviso of the 1837 draft (homicide with consent of such per- sons to be murdered), in as much as the offence of causing death of persons concerned (z'.e. persons under age or under disability) was regarded as murder even though death was caused with their consent and, therefore. clause 306----abetment of suicide--attached the penalty of murder to the offence described there- in, when committed in respect of a person under age or disability. The clause was approved subject to modiﬁcations regarding age of 12 years being replaced by an age where a person could form an intelligent judgment. It was also observed (regarding illegal omissions) that the rule would fail to be applied under these clauses chieﬂy in cases Where a person bound to take care of the person of another had, by an illegal omission of his duty, intentionally given him the opportunity of killing himself or permitted him to obtain the means of killing himself, or (second- ly) also in the case where one person, seeing another person preparing to destroy himself, (say by hanging) allowed him to accomplish his purpose without any attempt to prevent him, if, (as may be expected), the law of procedure makes it a common duty incumbent upon all men to assist in preventing offences about to be committed in their presence. The intention here in the second case would be inferable from the cir- cumstances.
_ (c) Attempt to commit murder--Atternpt to com- mit voluntary culpable homicide was. under clause 309
1. 1846 Report, pages IOI-I02, paragraphs 321----324.
245of the 1837 draft, punishable with imprisonment up to 3 years. The framers of the 1846 Report considered, that this caluse was meant to apply . to attempts to cause death under circumstances which, if death en- sued, would make the offence to be voluntary culpable homicide of one of the mitigated descriptions; 'because attempt to commit murder was expressly provided for by another clause 303. They therefore recommended the necessary clariﬁcation? As regards attempt to commit murder, clauses 308 and 320 had this effect, that where hurt was caused, the offence would be punishable with transportation for life or rigorous im- prisonment for life but not less than 7 years and also fine. No change was recommended on that clause?
((1) Perjury--In the 1837 draft, clause 294, dealing with voluntary culpable homicide read with illustra- tion (d) thereto had this effect, that if A falsely depos- ed before a Court of Justice that he saw another person commit a capital crime and the other person was con- victed and executed in consequence, A was guilty of the offence of voluntary culpable homicide, (If A had the intention to cause death or knowledge of likeli- hood of his causing death, etc.). This proposal was discussed in the 1846 Report. It stated'' that "the offence in question falls naturally within the definition of voluntary culpable homicide, which could not be expressed properly in terms that did not cover it" But, it went on to say,--"and but that we think it desirable to restrict rather than to extend capital punishment, and that it would be in effect an exten- sion of it to make the perjurer liable to the convicted of homicide, which would be murder under Clause 295, when his false swearing has caused the condemnation and execution of an innocent person, we would not hesitate to recommend that this part of the Code be left untouched. For the reason last stated, however, we would advise that the illustration (d) be omitted under clause 294, and that Clause 191 in the Chapter of offences against public justice be declared applica- ble generally to the offence of giving false evidence. . . . with the intention of causing a person to be convicted of a capital crime, whether the object intended be effected or not. The punishment which may be awarded under this Clause is transportation for life, or rigorous imprisonment for life or for a term not less than seven years, and ﬁne.".
(e) Dacoity with murder--By Clause 380 of the 1837 Draft, where a murder was committed by any one of a gang of the dacoits, every one of the gang was I. 1846 Report, pages I04------I06, paragraph 337,
2. 1846 Report, page 105, paragraph 339-340. 3- I846 Report, page 82, paragraph 266.
246ith death. The 1846 Report noted, that by the Regulations in force in Bengal and Madras, a single person going forth with an offensive weapon with intent to rob and perpetrating etc. a robbery, was also guilty of dacoity, and that by those Regulations "leaders of gangs or other heinous offend- ers convicted of a repetition of the crime or Without such repetition of a degree of cruelty, violence, or other aggravating criminality, which under the discretion allowed by the Mahammadan Law were punishable with death . . . . .." were liable to the sentence of death if the case appeared to the Nizamut Adawlut to rend- er such heinous offenders liable to such punishment. It also noted, that by the Bombay Regulation 14 of 1827, section 37, gang robbery accompanied with force was punishable in any of the modes speciﬁed in sec- tion 3 (which included death). The 1846 Report how- ever did not consider it advisable to extend the punishment of death to any case other than that al- ready given in clause 380 of the 1837 Draftl.
liable to be punished w It also noted the suggestion? that heads of gangs of dacoits should be sentenced to death, because in such cases death was desirable "as an example" to the country. This was a suggestion by Mr. Giberne3, a Judge of the Sudder Court at Bombay. The Report did not consider it advisable to extend the punishment of death to any case besides that dealt with in clause 380. But it did express agreement with the suggestion of Mr. J. F, Thomas that there ought to be a great distinction in adjudging punish- ment between persons proved to be leaders, or regular or habitual members of a gang following robbery as a pro- fession on the one hand, and poor coolies enticed to swell the number on the other hand. (Mr. Thomas had suggest- ed' transportation etc. In the case of every leader, regular member of the gang, every person armed with weapon capable of inﬂicting death, etc.).
For the present purpose, it is unnecessary to deal in detail with the later discussions relating to the draft Indian Penal Code5. On the 30th May, 1851, the revised edition of the Code was circulated to Judges for comments. Later, in 1854, a Committee consisting of Barnes, Peacock, Sir James Colville, J.P. Grant, D. Elliot etc. was asked to consi- der the revised Code. That committee did not recommend any substantial alterations in the original Code. The Code I. 1846 Report, page 155, paragraph 542 read with. paragraphs 54 and 541.
2. 1846 Report, page 155, paragraph 542, read with paragraph 535.
3. See 1846 Report, page 2, last paragraph and side note.
4. 1846 Report paragraph 533 and 542. The relevant material is also not easily available. See Rust, Hurt &
5. Homicide (1958), page 45-
247was read for the first time on the 28th December, 1856 and for the second time on the 3rd January, 1857, and referred to a Select Committee.' It was then passed by the Legis- lative Council of India; it received the assent of the Gover- nor--General on the 6th October, 1860.
APPENDIX XXVIII A.I\'1'ENDMEN'1'S RELEVANT TO CAPITAL PUNISHMENT, A1~"I'ER me PASSING or THE INDIAN PENAL CODE (1860).
Amendments to Indian Penal Code after it was passed may be noted:--
Sections 302, 303, I21, 132, I94, I94, "Imprisonment for life" has been 305, 307, Indian Penal Code. substitued for 'trarsportation for life", (Act 26 of 1955, section 117 and Schedule), with effect from I-I-I956.
Section I21 . . . . . Sentence of forfeiture was replaced by ﬁne, by Act 16 of 1921, sec- tion 2.
The position according to the Hedayag was this--if any In gang- one of a gang of robbers commits murder, the prescribed mbbery punishment is inflicted upon the whole; because the punish- drf,?,r_ ment in this instance is considered as a penalty for the den assault of the whole, which is established by each of them being aiding and abetting to the others' Causing death by negligence---"whoever caused the 304A Indian death of any person by doing any rash or negligent act not Plenal ggde amounting t.o culpable homicide shall be punished with im-- mm' )' prisonment of either description for a term which may extend to two years, or with ﬁne, or with both."
(Inserted by Act 27 of 1870 section 12).
307, 2nd paragraph Indian Penal Code "Imprisonment for life" has been 307, 2nd Sl.1bS,t'1t\1t6d for "transportation for paragraph l1f'5~ Indian Penal [Act 26 of 1955, section 117 and Code- Schedule (w.e.f. 1-I-1956)] 357(5), C1'imif1a1PI0C€dUre Code . Reasons for lesser sentence need 357 (5); not be given (1955 amendment). Criminal Procedure er a amendments, in Indian Pcrzl Verbal char es d b Ada ' V bl Code.
Code and Criminal Procedure Code. of laws ordersmié-Inaedey fr0rI'¥1)n:tl'l"I31g 2/,f,§1:,Zlmenm to time, and by Act 36 of 1957. in Indian Penal Code and Criminal Procedure Sections 60-61, Criminal Procedure Cmitttd by Act 16 of 1921. Code.
Code, (Forfeiture). Sections 60-61, I. Cf. Rust, Hurt and Homic:'de>(I958)','page 45. %:(i):'ei§1':1re
2. See Beaufort Digest of Criminal Law (1846) page 37, para-graph 129. Code,
3. Hed. TranS., Vol. 2, page 133. (Forfeiture).
248APPENDIX XXIX INDIA---PROPORTION or MURDERS TO ONE MILLION INHABITANTS (1953-1962) INDIA----No. of murders propombnate' to one million inhabitants I953----I962.
 Figures are taken from "Crime in India _" for the years I96C----I962, and from the Home Mm1stry's note sent [0 the Law C01'1'),IT1iSS10X1, for earlier years.
2. Worked out on the basis of ﬁgures supplied by Ministry of Home Affairs.
249('be ﬁgures for later years are as follows :--
Number of Number of cases in which Number Year mercy eti-- death sentence was com- of etitions . P . . .9 trons I'€C61VCd muted by the Presrdent to re)ected ._.._ from convicts --------~---- under sentence __._.,_.._ of death Imprisonment IO years for life R. I.