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Death Sentence: Repeal or Retention Riddle
by Dr. Chandrika Prasad Sharma*

Cite as : (2004) PL WebJour 22

Exponents of utilitarianism viz. Bentham and Cesare Beccaria insisted that the punishment is an evil. Therefore, punishment that is just fair and reasonable must be inflicted to curb the menace of crime. The capital punishment ought not to be proposed for, where some lesser sentence could achieve the same objects and results. The march of “human civilization” reduced the number of crimes punishable with death, which was about 200 by the end of 18th century. Consequently in U.S.A., only crime of treason has been left as punishable with death. There are States which have abolished the capital punishment, still few retain the same.

Cesare Beccaria, the Italian philosopher and reformer, was the first to propose that death penalty ought to be abolished in his famous study on crimes and punishment. Ever since then there has been important and ceaseless debate on the subject. Opponents of death penalty regarded their cause as identical to the demands of abolishing slavery. However, their efforts to muster a winning agreement has been difficult. In fact, even the liberals who abhorred it as primitive have favoured death penalty in certain exceptional cases. Thus, still there is widespread public support for death penalty.

Despite this, there has been a steady effort internationally to abolish death penalty. Until 1965, only 12 countries had expunged capital punishment and 11 effaced it for ordinary crimes during peacetime. The contemporary report of Amnesty International states that today 68 countries have abolished death penalty for all crimes and 14 for ordinary crimes. All the 15 members of the European Union have abolished death sentence. In South Africa the new Constitutional Court in one of its first judgments in 1995 abolished death penalty as “brutal inhuman and degrading”.

The U.S. Supreme Court has declared it to be contrary to the spirit of Eighth Amendment being cruel, unusual and barbarous. The abolitionists are putting forward their viewpoints to minimize its recourse. Whereas in India, the capital punishment is now confined to only six principal offences. The Law Commission’s recent and updated report says that 109 countries have already abolished death penalty by 2000. China and 36 States of U.S.A. use lethal injunctions to carry out the execution of prisoners on death row, in India 40 prisoners have been hanged so far during last 30 years.

In this backdrop, to bring home the points for and against the abolition of capital punishment, let us examine the justification of death sentence and find out, whether some alternative sentence would bring equally efficacious effect?

The question whether capital punishment has the necessary deterrent quality or not dominates the debate regarding the efficacy of capital punishment? The advocates of retention of capital punishment hold that the punishments have the deterrent effect and capital punishment should have the maximum deterrent effect. Their contention is based on the argument that abolition of capital punishment would unleash criminals hitherto restrained due to fear of the execution.

In a nutshell main argument of retentionists are (a) it is more effective than any other penalty in deterring murder; (b) it is more economical than imprisonment; (c) it is necessary to restrain the public from lynching criminals; (d) it is the only penalty with certitude. Because those who are sentenced to life imprisonment generally procure pardon in sympathy. On the other hand, those who condemn the death penalty say that the death penalty is not more effective than imprisonment as a deterrent that it does not at all promote mob rule, that it reduces the certainty of punishment, that it degrades the natural respect for human dignity of life, further it tends to promote killing, that error of justice are irreparable, and that it has incalculable adverse effect on the prisoners on whom it is inflicted.

It will be in the fitness of the things to have a bare idea about the Lombrosoism i.e. Italian school, which insisted that criminals are born and not made. Lombroso was the leader of a school, which is known as the “Italian School”. In clear-cut form this theory consisted of the following propositions: (a) Criminals are by birth a distinct type. (b) This type can be recognized by anomalies, such as asymmetrical cranium, long lower jaw, flatted nose, scanty beard, and low sensitivity to pain. (c) These physical anomalies do not in themselves cause crime; rather they identify the personality, which is predisposed to criminal behaviour and this personality, especially akin to epilepsy. (d) Because of their personal nature such persons cannot refrain from crime unless the circumstances of life are unusually favourable. (e) Some of Lombroso’s followers concluded that the several classes of criminals, such as thieves, murderers, or sex offenders are differentiated from each other by physical stigmata.1 This Lombrosian School was directed at first on the question of biological versus social determinism. As a result of these controversies, Lombroso gradually modified his conclusions, especially as to the “born criminal”, and reduced the proportion of criminals who were “born criminals” from approximately 100 per cent to about 40 per cent. Garofalo, Ferri, and other followers of Lombroso made other modifications, thereafter the school lost its clear-cut characteristics. The conception that criminals constitute a distinct physical stigmata was disproved to the satisfaction of most scholars when Dr Goring made a comparison of criminals and non-criminals and found no significant difference between them2. Lombroso and his followers had never made a careful comparison of criminals and non-criminals and had little knowledge of the “savage” whom the criminals were supposed to resemble. This school, by shifting attention from crime as a social phenomenon to crime as an individual phenomenon, delayed the work which was in progress at the time of its origin and in addition made no lasting contribution of its own.

Later on under the leadership of Romilly, Bentham, Peel, Mc Intosh, Montague etc. the use of capital punishment decreased with the increase in power of common men. But Romilly himself failed to substitute simple hanging for treason in place of cutting down alive, pillory and quartering the body. Finally more pronounced variation was seen i.e. substitution of permissive death penalty by mandatory death penalty.

Various studies have been made in U.S.A. where crime rates have been compared within a State on the basis of statistics before and after the abolition of death penalty and also between States which had abolished it and which had not done so. It is explicit from such studies that no increase in murders and other capital crimes is seen as a result of abolition. This contention ignores two aspects of the question. Firstly, that the reliability of statistics remains unverified. Secondly, there are several factors of socio-economic nature, which determine the quantum of offences committed in a society. In addition to this law and order, machinery may likewise be yet another important factor. It may be explained in the words of Dean Francis Allen:

“But the fallibility of such statistical inquiries is obvious, and it is important here to be aware of what we do not know. In the first place, most of these studies require accurate statistics on the number of capital offences actually committed. This presupposes a system of crime reporting that is both accurate and in a form which makes the information accessible. The fact is that, particularly in the United States, these conditions do not obtain. But even if such basic data were at hand, other difficulties would emerge. Suppose, for example, it is shown that in State X murder rates declined in ten years period after abolition. Having learned this, what do we know? Simply that abolition did not prevent a decline. Whether there is a causal connection between the two occurrences, whether the crime rates would have been the same, higher, or lower had the death penalty been retained, are question that quite clearly remain unanswered. Comparisons of jurisdictions that have and have not abolished capital punishment are afflicted by similar infirmities.”3

Indeed it is impossible to find out all the datas as to, in how many cases abolition of capital punishment actually deterred the potential offenders. The Royal Commission on Capital Punishment aptly remarked as follows:

“We can number its failures. But we can not number its successes.”

Next, it is argued that capital punishment brutalises human nature but the converse is also true. Brutality, like other vivid concepts is not an absolute one. Capital punishment is a reaction against certain type of brutalities committed by some of the human beings. Hence, debrutalisation of human nature could be made possible by retention of capital punishment is not fairly clear reformation. Abolitionists argue that death sentence is irrevocable State terrorism as there may be instances of innocents being hanged. Another aspect is that the lost, least and lowliest run the risk of capital punishment. Though heavy burden of proof on the prosecution militates against such chances. Both these arguments have some bearing but on a careful scrutiny they point out defects in the system of administration of justice and not in the capital punishment as such.

Again, there is truth in the statement that the judges are often reluctant to give finding of capital punishment, thus, the legal interpretation is doggedly strained, this also reflects upon constitutional rights of the accused. Harlan, J. said that “due process” requirements in case of an offender, facing trial with possible punishment of imprisonment or fine might not be adequate for accused being tried for a capital offence4. Constitutional law of right to legal aid through assistance of advocate distinguished capital cases from those punishable with miscellaneous penalties5 including life imprisonment6.

The abolitionists emphasise the rigidity of the punishment in cases of mental incapability of the culprit where he is not found legally insane. To combat such eventuality the doctrine of diminished responsibility for such offenders was advised by judicial pronouncements.

In India, though the test of insanity in criminal law is based on the rigid principles of McNaughten case7, death sentence is normally avoided in case of offenders not being legally insane but mentally insane viz. psychosomatic disorders. Very often an argument is advanced by the abolitionists that many murders are committed in the heat of the moment. However, in such cases death penalty is not awarded. “Grave and sudden” provocation and killing in the heat of passion are considered as culpable homicides as falling within the ambit of exceptions one or four of Section 300 of the Penal Code and the maximum penalty provided for is life imprisonment. Otherwise also, courts have discretion not to give death sentence in a case of murder and give lesser sentence of life due to presence of some mitigating extenuating circumstances.

It may be pointed out in this connection that under Section 367(5) of the Criminal Procedure Code, as it stood before the 1955 Amendment, the normal rule was to sentence the accused to death on a conviction for murder and to impose the lesser sentence of imprisonment for life for reasons to be recorded in writing. That provision was effaced and today under the Criminal Procedure Code of 1973 the court has to elaborate special reasons for awarding capital punishment.

The major argument for abolition is that there is no evidence to support the deterrent theory of capital punishment. Statistics establish that the overwhelming majority of killers commit the offence in momentary aberration. Majority of them is perfectly ordinary people without any criminal record. Most of the killings are for personal and emotional reasons like anger, jealousy and quarrels. Many of the killers feel terribly abashed after committing the act and few of them commit suicide later. It is vehemently argued that even in these extreme and relatively rare cases of professional criminals the cause of deterrence is served as much by long imprisonment, as by death sentence.

A large number of eminent psychiatrists from the London Institute of Psychiatrists arrived at some important conclusions against capital punishment. They contend that the prisons are already packed to the limit because of a mistaken approach to penology. Executions dehumanise the prisoner. The condemned persons are also termed as victims and gain the support, more than the actual victims of crime.

In this background, debate regarding retention of death penalty has been going on for quite sometime now. A bill to this effect was introduced in the house, which was later on rejected. In Rajya Sabha too, a resolution was moved for abolition of death penalty in 1958 and in 1962. But was withdrawn each time after a pandemonium in the House. For civilised countries like India, there are added reasons for abolition where the judicial process takes unduly long time and where the poor hardly get any worthwhile support through legal assistance. The case against hanging, as summed up by The Economist, is that it is not only “unthinkable for a civilised nation” but “less useful for a society that wishes to deter crime”.

The Law Commission of India emphasised that the risk of abolition of capital punishment cannot be undertaken at this junction as under:

“The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human being must be borne in mind. It is difficult to rule out the validity of or the strength behind many of the arguments for abolition. Nor does the Commission treat lightly the argument based on irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections in stressing deep questions of human values.”8

As regards criminal tendency of mind it has to be understood. There are person and classes of person who by nature are excitable and readily give exit to their natural feeling through act of violence. All the same, it is a truth that person normally exercise forbearance, tolerance and the passion which in the case of a volatile rash person take the form of boisterous and violent crime, are got over and squall in other minds by a silent non-violent acquiescence. A criminal in other words, is not born as such and it is the circumstances, the environment and the mental background of the person which lead him to have recourse to an act of violence.

It is apt to quote here Ostrovosky, he says:

“Men’s dearest possession is life, and since it is given to him to live but once, he must so live as not to be scared with the shame of a cowardly and trivial past, so live as not to be tortured for years without purpose, that dying he can say, all my life and my strength was given to the first cause in the world the liberation of mankind.”

So said Bhutto: about its use as an instrument of political reprisals:

“If the Supreme Court confirm the death sentence and Bhutto does not ask for clemency, there will be nothing to prevent, General Zia from granting it on his own and reducing the sentence to life imprisonment: In deciding whether to do so or not he will have to take in to account the reactions of other countries. But unfortunately for Bhutto diplomatic pressure will work both ways.”9

After the Lahore High Court judgment a number of countries urged, General Zia not to carry out the sentence. But China, the USA, the Soviet Union, Saudi Arabia, Egypt, Libya and a number of other countries advised mercy. The Soviet Union went further and instead of sitting on the fence plunged in to a fluid situation and described Bhutto a progressive and his successors as reactionaries.

This revelation depicts how successive rulers mulct the voice of dissent by foisting conspiracy cases against their political rivals. So death penalty if retained in the statutes, there is always great danger of its recourse for assassination of political rivals by the successive charge d’ affairs. Who in fact gain power, by what may be termed as coup d’etat. Hence protagonists of democratic values demand effacement of death penalty from the statutes to prevent its malicious misuse by successors in office.

The punishment for crime sometimes becomes crime of punishment, today our laws are determinedly committed to Deterrent Theory of sentencing through torture of the flesh and bones. Again it is fait accompli that brutality cannot be subjugated by brutality rather good can only overcome evil out of man. Cesare Beccaria condoned death penalty on the ground of statistics and history that maximum-security prisons have a high rate of recidivism. This shows that cruel punishment has been counterproductive. It is also a social fact that the unjust sentence have been inflicted over the poorer sections. The question whether capital sentence is a self-defeating barbarity or an unavoidable extreme is an issue of world debate i.e. “to hang or not to hang”. This controversy has been disturbing the judges of trial court more than the High Court’s and Supreme Court’s Justices.

Indian criminologist started surveying the pros and cons by collection of preliminary data study about the socio-economic and psychic factors of criminals leading to commission of capital crimes. Buddha, Jesus and Gandhi considered capital punishment as killing by authority of law. “Karuna” should crop forth in the minds of judges. It is a harsh reality that capital sentence fall on the socially, mentally and economically backward people and on the brave and bold crusaders, reformists and revolutionaries. Justice Douglas observed that it is the poor, the powerless, and the pale that were executed.

“Thou shalt not kill”, said Jesus; and Gandhi held: “God alone can take life because He alone gives it” and Victor Hugo further gives his message on this moot point as under:

“We shall look upon crime as a disease. Evil will be treated in charity instead of anger. The change will be simple, impressive and grand. Embraced arms of love should replace scaffolding of execution. So the reason, conscious and experience is on the side of abolitionists.”

Added to this, is the fact that 70 countries have already gone abolitionist, in few countries it has been put into cold storage. However, in abolitionist socialist countries there has been noticeable decline in capital crimes. History reveals how in the name of justice? Socrates, Jesus, Meera Bai and Bhagat Singh have been executed and mankind has acknowledged their honourable worth posthumously.

Let us have a glimpse of the “Crime and justice principles”, revealing the existential approach to punishment of Jean Paul Sartre and Albert Camus:

“In reality nothing is improper, nothing illegal, nothing punishable, except the infringement of man’s freedom. All is permitted except this infringement, for which man rightfully suffers the only type of punishment. The only ‘unnatural’ act would be to assume that the man has a normative nature. Sartre’s dialectics thus comes full swing to establish the value of the person but not of the citizen and the dignity of the offender but not of the imprisoned. If there is no nature, nothing is unnatural. If every man is unique, there is no consequence; if there is no consensus or illegal man’s only punishment lies in the fact that his existence is shared by others.”

In the first place, Camus argues, the State does not believe in the example of deterrence, of which it so often speaks, in seeking to justify its practice of severe punishment. If society really believed in the deterrent possibilities of making an example to serve punitive measures, society would celebrate severe punishment such as execution with the publicity it now reserves for national holidays and new brands of merchandise. Secondly, Camus argues that criminals are not truly intimidated by the possibility of capital punishment. Thirdly, Camus responds that even if such efficiency be a real consequence of such punishment, it is offset by other consequences injurious to human values: the act of execution is degrading for the crowd, the executioner and the criminal, and its appeal is only to base instincts. Furthermore, if capital punishment eliminates the guilty, it also eliminates the chance of correcting judicial errors imposed on the innocent. Finally, even a just imposition of capital punishment implies that the condemned has lost the universal human power of correcting his ways.

This way, Camus lends support to the rehabilitative aspect of punishment. The recidivist always remains a human offender and as a human being he is always free to learn humane values and suitable social modifications in life pattern. The imposition of punishment is justified only by its ability to re-educate an offender and thereby to return him to society as a disciplined human being.

This ideology is further reinforced by Mahatma Gandhi when he said “hate the sin and not the sinner” in other words destruction of individual can never be a virtuous act. The evildoers cannot be done to death. Today there is a movement in vogue for the abolition of capital punishment and attempts are being made to convert prisons into reformatories or hospitals as if they are persons suffering from a disease.

Brennan, J. thus delivered a befitting finding: (US p. 273)

“Indeed, a punishment may be degrading to human dignity solely because it is a punishment. A State may not punish a person for being ‘mentally ill, or a leper, or … afflicted with a venereal disease,’ or for being addicted to narcotics. To indict punishment for having a disease is to treat the individual as a diseased thing rather than as a sick human being. That the punishment is not severe, ‘in the abstract,’ is irrelevant; ‘[e]ven one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.’ Finally, of course, a punishment may be degrading simply by reason of its enormity.”10

Further, in India, the Supreme Court ordained similar hortative touch to harsh sentencing. In fact philosophical disposition to this criminological problem, within the precinct of the law, has been set out at length by V.R. Krishna Iyer, J. in Giasuddin11. Justice Marshall’s recent opinion in Furman case10 in an eloquent condemnation of “inhuman and uncivilised punishments”. He cogently asserts:

“One of the judges of the lower court indicated from the Bench that a sentence of life imprisonment is not to be regarded as a lesser penalty than that of death. I challenge that statement categorically. It can be stated as a universal truth stretching from nadir to zenith that regardless of circumstances, no one wants to die. Some person may, in an instant of spiritual or physical agony express a desire for death as an anodyne from intolerable pain, but that desire is never full-hearted because there is always the reserve of realization that the silken cord of life is not broken by a mere wishing. There is no person in the actual extremity of dropping from the precipice of life who does not desperately reach for a crag of time to which to cling even for a moment against the awful eternity of silence below. With all its ‘slings and arrows of outrageous fortune’, life is yet sweet and death is always cruel.”12

The constitutional dimension visualised more intense only after the decision of Furman case10 by American Supreme Court. So, accepting the Gandhian therapy, the Bench in Ediga Anamma13 sought to reinforce reformist rationality and humane punitive treatment thereby began to say for the first time: (SCC pp. 450-451, paras 14 & 18)

14. In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined.

* * *

18. It cannot be emphasised too often that crime and punishment are functionally related to the society in which they occur, and Indian conditions and stages of progress must dominate the exercise of judicial discretion in this case.”

The judiciary of the republic recognised the life term as the rule and life taking as exception. V.R. Krishna Iyer, J. guardedly prepared the ground for amelioration of death penalty in Jagmohan case14 in accordance with the spirit of compassion and social conscience. The Supreme Court noted as under: (SCC p. 452, para 21)

21. It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention.”

The Bench also further noted: (SCC pp. 452-53, para 22)

22. Jagmohan Singh14 has adjudged capital sentence constitutional and whatever our view of the social invalidity of the death penalty, personal predilections must bow to the law as by this Court declared, adopting the noble words of Justice Stanley Mosk of California uttered in a death sentence case: ‘As a judge, I am bound to the law as I find it to be and not as I fervently wish it to be.’ (The Yale Law Journal, Vol. 82, No. 6, p. 1138.) Even so, when a wise discretion vests in the Court, what are the guidelines in this life and death choice? The humanism of our Constitution, echoing the concern of the Universal Declaration of Human Rights, is deeply concerned about the worth of the human person. Ignoring the constitutional content of Anderson15 and Furman10, the humanist thrust of the judicial vote against cruel or unusual punishment cannot be lost on the Indian judiciary. The deterrence strategists argue that social defence is served only by its retention, — thanks to the strong association between murder and capital punishment in the public imagination — while the correctional therapists urge the reform of even murderers and not to extinguish them by execution. History hopefully reflects the march of civilisation from terrorism to humanism and the geography of death penalty depict retreat from country after country. U.K. and U.S.A. are notable instances. Among the socialist nations it has been restricted to very aggravated forms of murder. The lex talionis principle of life for life survives in some States still, only to highlight that in punitive practice, as in other matters, we do not live in ‘one world’, but do move zigzag forward to the view that the uniquely deterrent effect of death penalty is, in part, challenged by jurists, commissions and statistics. But as a counter weight we have what an outstanding Justice of the Ontario Appeal Court said some years ago:

‘The irrevocable character of the death penalty is a reason why all possible measures should be taken against injustice — not for its abolition. Nowadays, with the advent of armed criminals and the substantial increase in armed robberies, criminals of long standing, if arrested, must expect long sentences. However, if they run no risk of hanging, when found guilty of murder, they will kill policemen and witnesses with the prospect of a future no more unhappy, as one of them put it, than being fed, lodged, and clothed for the rest of their lives.’ ”

Decision making with judicial craft to disarm the protagonist of retention is clearly discernible in the following lines of Ediga Anamma13: (SCC p. 453, para 25)

25. We assume that a better world is one without legal knifing of life, given propitious social changes. Even so, to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values, socio-economic conditions and legislative judgment have a role. Judicial activism can only be a signpost, a weather vane no more. We think the penal direction in this jurisprudential journey points to life prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangman’s rope. ‘Thou shalt not kill’ is a slow commandment in law as in life, addressed to citizens as well as to States, in peace as in war. We make this survey to justify our general preference where Section 302 keeps two options open and the question is of great moment.”

And finally the Supreme Court concluded by saying: (SCC p. 454, para 26)

“A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life.”

V.R. Krishna Iyer, J. reiterated by categorically holding: “The future belongs to life, not to death. Even if a battle is lost, the war may still be won, but never surrender where man is on the cross. Where divinity is in jeopardy, values await crucifixion.” Again V.R. Krishna Iyer, J. in Rajendra Prasad case16 adopted the meaning of penal statutes to changing social milieu: (SCC p. 674 & 668, paras 71 & 50)

“The Indian Penal Code fabricated in the imperial foundry well over a century ago has not received anything but cursory parliamentary attention in the light of the higher values of the National Charter which is a testament of social justice. Our Constitution respects the dignity and, therefore, the divinity of the individual and preservation of life, of everyone’s life. So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace with constitutional values and the increasing enlightenment of informed public opinion. A nineteenth century text, when applied to twentieth century conditions, cannot be construed by signals from the grave. So, while courts cannot innovate beyond the law, the law cannot be viewed as cavemen’s pieces. The penological winds of change, reflected in juristic debates, bills for abolition of death penalty in Parliament and the increasing use of clemency and commutation by the highest executive, must affect the living law of statutory application.

* * *

It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interest of the general public compel that course as provided in Article 19(2) to (6).” (emphasis supplied)

“Our objection is only to the word ‘only’. ”(Bachan Singh v. State of Punjab, SCC p. 749, para 204)

The position thus emerges proves that death sentence is not in conformity to the constitutional philosophy. The passage in Bachan Singh case17 reads thus: (SCC p. 751, para 209)

“It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

It will be pertinent here to discuss other aspects of capital punishment by discussing sentencing philosophy of SAARC nations particularly India and Ceylon vis-à-vis European thinking:

The offence of murder is considered as the most serious offence against human body. Certain murders may be termed as higher degree murders on the basis of greater blameworthiness, ghastliness and extreme brutality. Some murders are exceptional as they reveal exceptional depravity of the offenders. The Indian Penal Code (Amendment) Bill 1978 discussed the degrees of murders as hereafter before mentioned:

The Indian Penal Code (Amendment) Bill, 1978 in clause 125 has proposed the idea of two degrees of murders, namely, the lower degree or the general murders for which the maximum punishment would be imprisonment for life and higher degree murders for which maximum punishment would be death penalty. Murders under the following situations would be considered as higher degree murders:

“(2) Whoever commits murder shall —

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

(b) if the murder involves exceptional depravity; or

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

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

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

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

(e) if the murder has been committed by him, while undergoing sentence of imprisonment for life, and such sentence has become final.”

The dowry murder cases at one point of time were also considered as crimes that deserve extreme penalty of death. B.L. Hansaria, J. in Ravindra case18, discussed this matter in extenso in Supreme Court. His conclusion is as following: (SCC p. 151, para 9)

9. The present was thus a murder most foul, … The motive was to get another girl for the appellant who could get dowry to satisfy the greed of the father. Dowry deaths are blood-boiling, as human blood is spilled to satisfy raw greed, naked greed; a greed which has no limit.”

Testing the murder on the “rarest of rare” touchstone, the judgment seems to have taken a new course in its finding and also the reasoning regarding the categorisation of the present murder as not a “rarest of rare” type. We begin with the foremost dictum of the Court in this respect: (SCC p. 151, para 10)

10. We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as the ‘rarest of the rare’ type. This is so because dowry death has ceased to belong to that species of killing. The increasing number of dowry deaths would bear this.”

Hansaria, J. made the following observations concerning the justification of life sentence awarded by him: (SCC p. 151, para 10)

“To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of a death penalty. … much though we would have desired annihilation of a despicable character like the appellant before us. We, therefore, commute the sentence of death to one of RI for life imprisonment.”

In the above observation Hansaria, J. elaborated two significant points regarding sentencing. The first relates to the deterrent effect of death penalty. The second relating to the choice of alternative sentence of life imprisonment.

The viewpoint which uphold the deterrent death penalty is best conceptualised by Sir James Fitzjames Stephen in the following words:

“No other punishment deters man so effectual from committing crimes as the punishment of death. This is one of those propositions which is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. ... No one goes to certain inevitable death except by compulsion. Put the matter the other way. Was there ever yet a criminal, who when sentenced to death and brought out to die, would refuse the offer or a commutation of his sentence for the severest secondary punishment? Surely not. Why is this? It can only be because ‘All that a man has he will give for his life.’ In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly.”

The Canadian Report on Capital Punishment considers death penalty as an important deterrent to murders and arrives at the following conclusion:

“First, that this opinion of the officers was not displaced by other evidence based upon statistical comparison, and that capital punishment did exercise a deterrent effect, which would not result from imprisonment or other forms of punishment; secondly, the fact that a considerable proportion of murders are committed under compulsion of passion or anger seems to demonstrate that death penalty, coupled with the excellent standards of law enforcement prevailing in Canada, had succeeded in deterring deliberate pre-mediated murders; thirdly, the deterrent effect was also indicated by the widespread association of death penalty with murder; fourthly, it was necessary to retain the stern penalty of death as a continuing restraint against the use of violence by professional criminals; fifthly, public abhorrence of murder reflected a traditional attitude build up by the reservation of capital punishment for this particular crime, and abolition of a penalty traditionally accepted as a just and effective deterrent could only be recommended if it was established clearly that the view of the ordinary citizens about its efficacy are demonstrably wrong, sixthly, capital punishment did protect the police to a greater extent than imprisonment alone would do, by deterring criminals from using violence to facilitate the commission of crimes, escape etc.”19

In India the deterrent line has been best advocated in the Thirty-fifth Report of the Law Commission which opined for the retention of death penalty mainly in view of its deterrent effect in these words:

“Experience of other countries could not be conclusive for India. Need for deterrent control provided by capital punishment is greater in various classes of society. There is greater danger in India of increase in violent crimes if capital punishment is abandoned, particularly in respect of professional criminals.”

Though the Report has elaborately discussed the deterrence issue in Chapters 4 and 5 and cited statistics from countries that have retained death penalty as well as those that have abolished it, but the manner in which they arrive at the conclusion about deterrent effect and the need to retain death penalty is far from convincing. For instance in their conclusion in para 372(I) they appear to be basing their assessment of the effect of death penalty on the normal human being “of ordinary frame of mind”, but in para 128 while expressing apprehension about rise in violent crime the Report refers to the “professional criminals” who by no stretch of imagination are normal persons of ordinary frame of mind. Similarly in para 309 the Report cites statistics that shows a uniform decline in homicidal crimes in both the retentionist and abolitionist countries and also records the conclusion of various authorities that “the rate of homicide is not affected by the presence or absence of death penalty”, but this lesson is not reflected in their conclusion at all. Again in paras 314 and 316 the Report attempts to create a special position for India by describing India as a high murder rate country (on the basis of number of murders per million population) and indicating that during 1953 and 1962 the murder rate has shown a tendency to rise. It is surprising how India, a low crime rate country, should acquire a higher murder rate? Furthermore, according to the statistics quoted in para 316 the rate of murder per one million population declined from 29.8 in 1959 to 26 in 1962, which cannot be any indicator of an increasing tendency. All this goes in to prove that the findings of the Thirty-fifth Report, particularly in respect of deterrent effect of death penalty, cannot be described as an authentic evidence of relationship between death penalty and deterrent consequences.

The deterrent effect of death penalty line is sustained, particularly at the level of actual sentencing by the courts, by a consistent line of judicial decisions of the Appellate Courts. Starting right from the Full Bench decision in Bachan Singh v. State17, in which the majority decision of Justice Sarkaria (Chandrachud, C.J. and Gupta and Untwalia, JJ. concurring) observed: (SCC pp. 711-12, para 71)

“In the instant case, the State has discharged its burden of satisfying the Court, that the 35th Report of the Law Commission, 1967, and the judgments of the Supreme Court in Jagmohan Singh v. State of U.P.14 and in several subsequent cases, in which it has been recognised that death penalty serves as a deterrent.”

It is interesting to analyse the various reasons advanced by the Supreme Court for imposing death penalty in some of the recent decisions. In Mahesh v. State of M.P.20 the Court observed: (SCC p. 82, para 6)

“To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.”

Earlier in Asharfi Lal v. State of U.P.21 the language of deterrence was used in these terms: (SCC p. 227, para 3)

“As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death … is confirmed.”

In Sevaka Perumal v. State of T.N.22 deterrence was seen in broader sentencing context as: (SCC p. 480, para 9)

“[L]aw as a cornerstone of the edifice of order should meet the challenges confronting the society. … In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep seated personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.”

Yet in Shashi Nayar v. Union of India23 the Court observed: ( SCC p. 97)

Death sentence has a deterrent effect and serves a social purpose. In view of deteriorating and fast worsening law and order situation in the country, about which judicial notice can be taken, it is most inopportune time to reconsider the law on the subject and to take the risk of abolishing death sentence.

Finally, in Ravji v. State of Rajasthan24 the Court propounded strong reasoning in favour of deterrent justification of sentencing in these words: (SCC p. 187, para 24)

“It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victims but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society’s cry for justice against the criminal’. … if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance.”

The courts in India have been fairly consistent in treating bride-burning and dowry murder as grave offence deserving death penalty for its deterrent effect. In Kailash Kaur v. State of Punjab25 the Court observed: (SCC p. 633, para 1)

“Whenever such cases come before the court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti-social crimes.”

In the context of growing menace of dowry murders, the following observations of A.M. Ahmadi, J. in Allauddin Mian v. State of Bihar26 deserve mention: (SCC p. 19, para 9)

“Where the incidence of a certain crime is rapidly growing and is assuming menacing proportions, for example, acid-pouring or bride-burning, it may be necessary for the courts to award exemplary punishments to protect the community and to deter others from committing such crimes.”

The courts in matters of choice of punishment rarely rely upon the second viewpoint that denies the deterrent effect of death penalty. However, since this viewpoint provides the basis for the abolitionist line of thinking and also the stock argument for commutationist choice, it would be worthwhile to examine its postulates as well. The strongest advocacy for this viewpoint is provided by the Report of the Royal Commission on Capital Punishment (1953). On the issue of deterrent effect of death penalty the Report of the Royal Commission sums it up is as follows:

“First, prima facie, the death penalty is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment. Secondly, there is some evidence that this is so. Thirdly, there is no convincing statistical evidence that the penalty of death has a stronger effect as a deterrent than any other form of punishment. Fourthly, this effect does not operate uniformly. Fifthly, the deterrent force of capital punishment operates not only by affecting the conscious thought of individuals tempted to commit murder, but also by building up in the community, over a long period of time, a deep feeling of peculiar abhorrence for the crime of murder. Sixthly, it is impossible to arrive confidently at a firm conclusion about the deterrent effect of death penalty or indeed of any form of punishment. Seventhly, it is important to view the question in a just perspective, and not to base a penal policy in relation to murder on exaggerated estimates of uniquely deterrent force of the death penalty.”

The Report of the Ceylon Commission on Capital Punishment is uniquely convincing in its denial of deterrent effect of death penalty. The majority report arrived at a clear conclusion against general deterrent effect of death penalty. The main thrust of its conclusion was:

“Developing psychological knowledge gave no support to the assumption that a potential murderer calculated before killing, the ultimate consequences, and pointed out that in an impulsive action, which, as in Ceylon, frequently led to murder. It was unlikely that there was any intellectual consideration at all prior to the killing, let alone a reflection of possible remote penalties. Further, in its opinion, difficulties of detection, apprehension and conviction and the discretionary exercise of reprieve, militated against death penalty being the unique deterrent which it was claimed to be.”

According to the report of Ceylon Commission certainty of detection and conviction was more conducive to the reduction of crime than the severity of punishment. Report observed:

The Royal Commission’s and the Ceylon Commission’s view is amply supported by research conducted in the United States on the deterrent effect of death penalty. In this context Glenn L. Pierce and Michael L. Radelet have observed:

“A recent review of all post-1972 empirical studies on capital punishment identified no criminologist in the United States in the last fifteen years who has claimed to find data showing that death penalty has a long term deterrent effect greater than that exerted by lengthy imprisonment. The only such study making such a claim was published not by a criminologist, but by an economist in a regional economic journal, and is severely flawed.”

However, there is some deterrence studies that tend to support the conclusion that after executions the homicide rates may actually increase.

Examining the Court’s reasoning on the sentencing issue, one can refer to two observations. First: “Much though we would have desired annihilation of a despicable character like the appellant” and second: “We entertain doubts about the deterrent effect of death penalty.” From these observations it appears that the Court would have no objection to annihilating the appellant provided death penalty could serve a deterrent purpose. That means the Court would have had no objection to death penalty only if it was shown to have deterrent effect. The Court thus rejected both the retributive justification as well as the reformist justification premised on inherent value of human life. This reflects the Court’s clear preference for a classical utilitarian position that justifies punishment solely on the basis of its benefits to the society. Though the Court was right in doubting the deterrent value of death penalty (this uncertainty is fully supported by the inferences of the Royal Commission and Ceylon Commission), but that alone should not have been sufficient to arrive at a conclusion about the untenability of deterrent justification or lack of social benefit flowing from death penalty. On this aspect it may be worthwhile to reproduce the observations of the Ceylon Commission and the Royal Commission as follows:

“Reliance cannot be placed on there being any greater deterrence to potential murders by imposing capital punishment on a few than by imprisoning all convicted murderers.

It is important to view the question in a just perspective, and not to base a penal policy in relation to murder on exaggerated estimates of uniquely deterrent force of death penalty.”

The Ravindra case18 decision has neither visualised the comparative deterrent value of death penalty nor tried to examine the issue of death penalty in the broader criminal justice perspective. It has initiated the intricate justification debate, but tried to resolve it rather too simplistically and on the basis of scientifically undeterminable social facts. In the process it has parted company with the established line of judicial thinking.

Thus, the available trends and statistics do not favour the justifications put forward for death penalty. Those who have carefully studied our religious text and behavioural psychology do not support retention of death penalty. This trend is certainly based on humane and rationalistic considerations. The commandment of life demands a just world order i.e. human justice through human law as a process of recognising the dignity and worth of the human person. Let us hope that criminology and consciousness will initiate a justice system without a drop of human blood. Let us appeal to the populace of the earth to have faith in man, to follow the highway to rehabilitation away from the impasse of retention. Law is life, look beyond death penalty for a human tomorrow.

The abolitionist doctrine germinates from the spiritual canon termination of human life even under legal sanction is retributive, barbarous and violative of divinity. The right to life is inviolable because the general notion is that every man is quintessentially good and criminality is but dissolvable impurity. The law is undoubtedly for life, we should look beyond death penalty and precisely define the contours of “rarest of the rare” factors implied in capital crimes.

The aforesaid discussion on retention and repeal does not lead us to any definite option, but certainly hints at some alternative sentence in between life imprisonment and death sentence. The Supreme Court resolutely reasserted its views on death sentence in its latest case viz. Jayawant Dattatraya Suryarao27 and discovered the alternative of the riddle as under: (SCC p. 148, para 65)

65. In our view, there is force in the aforesaid submission. Accused 6, who has confessed his involvement in the crime including the crimes committed by him previously, has specifically stated that he asked Brijesh Singh to go back from the hospital without firing. He has not confessed that he has fired any shot during the incident. In this set of circumstances, even though we hold that it was an act of terrorism committed by the accused, this would not be a fit case for imposing death sentence. However, considering the confessional statement as a whole coupled with the other evidence and the terror created by the accused, we confirm the conviction but modify the sentence from death penalty to imprisonment for life — till rest of life.”

(emphasis in original)

In Subash Chander v. Krishan Lal28 the Court referred to the decision in State of M.P. v. Ratan Singh29 and held that a sentence of imprisonment for life does not automatically expire at the end of 20 years, including the remissions. The Court in Ratan Singh case29 has observed that: (SCC pp. 473-74, para 4)

4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra30 where the Court, following a decision of the Privy Council in Pandit Kishorilal v. King Emperor31 observed as follows:

‘Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.’

If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.

* * *

A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life.’

The Court further observed thus:

‘But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. … Under the said Rules the orders of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The Rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.’ ”

Similarly in Shri Bhagwan v. State of Rajasthan32 the Court relied upon the decision in Ratan Singh case29 and observed as under: (SCC pp. 304-05, para 22)

22. A question may arise — whether in view of the provision of Section 433(b) read with Section 433-A Cr PC an accused should be released on completion of 14 years of imprisonment. For this purpose, we would make it clear that Section 433(b) enables the appropriate Government to commute the sentence of imprisonment for life, for imprisonment of a term not exceeding 14 years or for fine. Under Section 433-A, there is an embargo on that power by providing that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided under the law, such person is not to be released from prison unless he had served at least fourteen years of imprisonment. This question is considered by various decisions rendered by this Court and by the Privy Council and it has been reiterated that a sentence of imprisonment for life imposed prima facie be treated as imprisonment for the whole of the remaining period of the convicted person’s natural life. It is also established law that rules framed under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.”

Similar are the observations of Supreme Court in Sohan Lal v. Asha Ram33, Bhagirath v. Delhi Admn.34 and in Zahid Hussein v. State of W.B.35

In Zahid Hussein case33 considering the heinous act of terrorism and brutal murder of two police constables who were on duty to guard Shallesh Haldankar, even though we hold this would not be a fit case for imposing death sentence, we direct that accused will not be entitled to any commutation or premature release under Section 433-A of the Criminal Procedure Code. Prisoners Act, Jail Manual or any other statute and the rules made for the purpose of commutation and remissions.

In view of what has been stated hereinabove Indian judiciary could find solution of repeal or retention riddle. It clearly shows that a sentence in between death sentence and life imprisonment (which means 14 years imprisonment after all kind of statutory reprieves) if imposed would serve the purpose of condign human treatment. Hence, if an offender who deserve death sentence on most of the counts but still some mitigating factors prick the conscience of the judges not to award the death sentence. It is in such cases of dilemma that the judges may exercise option to award life imprisonment, which extend for whole of life i.e. to deny him any benefit of commutation and consequential premature release. This option by way of middle path is now available to the judges of trial courts after the Supreme Court judgment in Subash Chander v. Krishan Lal28 wherein Court held as under: (SCC p. 468, para 23)

23. However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, taking on record the statement made on behalf of Krishan Lal (A-1) (accused), we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions.”

Thus the Supreme Court has innovated a middle course between death sentence and life imprisonment for Indian subordinate judiciary to follow. Ultimately, it reserves death sentence as harshest of harsh’ punishment for posterity to shun it as inhuman uncivilised, brutal and barbarous…

Now, what remain to be done are intimation, exhortation and application of this recent trend in penology as alternative for capital punishment. Such trend will introduce and add humanitarian content to our criminal justice system. Because Indian spiritualism adumbrate the same philosophy as follows:

“Since every saint has a past and every sinner a future, never write off a man wearing veneer attire but remove the dangerous degeneracy in him.” V. R. Krishana Iyer, J.

While, futility of deterrent death sentence even according to the spiritually ill-equipped westerners is also understandable thus:

“The importance of death sentence as deterrent was brought out with characteristic wit by Dr Johnson who according to Boswell noted pick pockets playing their trade in a crowd assembled to see one of their member executed.”

To sum up aforesaid discussion reveals innovation of an alternative sentence in place of death penalty. It is therefore pertinent to popularise this innovative sentence in India and amongst countries of Indian sub-continent then to other countries of the world.


* LLM, PhD, RHJS, Secretary, Justice Israni Commission Return to Text

1. C. Lombroso: L’uomo delinquente. Return to Text

2. Charles Goring: The English Convict, pp. 99-100. Return to Text

3. Francis Allen: Borderland of Criminal Justice, p. 98. Return to Text

4. Reid v. Covert, 354 US 1, 77 (1957) Return to Text

5. Powell v. Albama, 287 US 45 (1932) Return to Text

6. Bute v. Ilinois, 333 US 640 (1948) Return to Text

7. 10 Cloth and Fin 200 (1843) Return to Text

8. 35th Report of Law Commission of India. Return to Text

9. Z.A. Bhutto: “If I am assassinated … ”. Return to Text

10. Furman v. State of Georgia, 408 US 238 (1972) Return to Text

11. Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287 Return to Text

12. Commonwealth v. Elliott, 371 Pa 70 at 78 : 89 A 2d 782 at 786 (1952) (Musmanno, J., dissenting) c.f. Furman v. Georgia, 408 US 238 (1972) Return to Text

13. Ediga Anamma v. State of A.P., (1974) 4 SCC 443 Return to Text

14. Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 Return to Text

15. 100 California Reporter 152 Return to Text

16. Rajendra Prasad v. State of U.P., (1979) 3 SCC 646 Return to Text

17. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 Return to Text

18. Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148 Return to Text

19. Law Commission of India Report (Capital Punishment), Vol. I (1967) p. 328. Return to Text

20. (1987) 3 SCC 80 Return to Text

21. (1987) 3 SCC 224 Return to Text

22. (1991) 3 SCC 471 Return to Text

23. (1992) 1 SCC 96 Return to Text

24. (1996) 2 SCC 175 Return to Text

25. (1987) 2 SCC 631 Return to Text

26. (1989) 3 SCC 5 Return to Text

27. Jayawant Dattatraya Suryarao v. State of Maharashtra, (2001) 10 SCC 109 Return to Text

28. (2001) 4 SCC 458 Return to Text

29. (1976) 3 SCC 470 Return to Text

30. AIR 1961 SC 600 Return to Text

31. AIR 1945 PC 64 Return to Text

32. (2001) 6 SCC 296 Return to Text

33. (1981) 1 SCC 106 Return to Text

34. (1985) 2 SCC 580 Return to Text

35. (2001) 3 SCC 750 Return to Text

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