Before imposing the punishment on the criminal, the Courts first calculate the measure of his penal liability.
For example, Section 121 of the Indian Penal Code, 1860 defines the offence of waging or attempting to wage war, or abetting waging of war, against the Government of India, and says that the wrong-doer of such offence “shall be punished with death, or imprisonment for life, and shall also be liable to fine”.
The Section gives more than one option to the Court to decide how much punishment shall be imposed – (i) punishment with death; or (ii) punishment with imprisonment for life; and (iii) also fine. The amount of fine is not mentioned in the Section, and it is left to the discretion of the Court.
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The Court can use its discretion in fixing the punishment either death with or without penalty; or imprisonment for life with a fine of one thousand rupees to one lakh or several lakhs of rupees.
All this depends upon the Court’s discretion. Court’s discretion is further depends upon the measure of penal liability of the crime. Therefore, measure of penal liability and fixing up punishment is a great task laid upon the Courts.
In every crime, there are three elements to be taken into consideration in determining the appropriate measure of punishment. They are: (1) the motives to the commission of the offence; (2) the magnitude of the offence; and (3) the character of the offender.
1. The Motives:
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The general principle of evidence and criminal law is that the motives are irrelevant in proving the offence.
Examples:
(a) A, an unemployed, may have committed a theft with a motive to feed his starving children, (b) B, a good hearted person, plunders the bus and train passengers and helps the choultries, street children, poor people, etc. (c) X, a youth, plunders a bus and burns it along with the passengers and fulfils luxuries with that money, (d) Z, a Deputy Superintendent of Police, travels in the trains and does thefts from the passengers.
No doubt, the Courts, in the above four examples, shall punish the criminals A, B, X and Z, but while fixing their criminal liabilities and fixing their punishments, they sympathetically consider A and B, while they do not show any mercy on X. In case of Z, the Courts act with more stringent view.
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The Judges utilise their power of discretion, and impose the highest punishment available in the law for Z. The object of punishment is to counteract by the establishment of contrary and artificial motives and natural motives which lead to crime.
The stronger these natural motives the stronger must be the counteractive which the law supplies. If the profit to be derived from a criminal act is great, or the passions which lead a man to it are so much violent, the law considers such corresponding strength or violence. It wants to restrict such violent and passionate tendencies of evil motives in the society, and thus punishes severely such offenders.
2. The magnitude of the offence:
The second measurement is the magnitude of the offence. The greater the offence, i.e., the greater the sum of its evil consequences or tendencies, the law imposes greater punishment.
For example:
(a) Chalapathi Rao and Vijayavardhana Rao plundered the passengers and burnt the RTC bus with petrol and diesel on 8-3-1993 at Chilakalooripeta. Their act was very heinous and brutal. The Court of Sessions saw the magnitude of the offence and imposed death sentence on them.
The High Court also confirmed the death sentence. On appeal, the Supreme Court also rejected their appeal, and confirmed the death sentence. Later it was sent to the President of India for Pardon under Article 72 of Indian Constitution, who changed the capital sentence to imprisonment for life.
Evil causes evil and fallacy. The Courts do not take the deceitful arguments, defective reasoning, etc., of the criminals; (b) Manohar killed Sri Laxmi in Vijayawada. The greater the mischief of any offence the greater is the punishment.
Another important point is to be calculated that what profit and benefit are accrued by the offender. The law imposes severe penalties and punishes depending upon the quantum of the profit and benefit accrued by the offender.
Another important point is that there are chances for the offender to commit several offences, but the offender commits only the least serious natured criminal act.
The law imposes lesser punishment. If the offender commits the highest serious natured criminal act, even though there is no necessary to do that act, then law imposes highest punishment.
Examples:
(a) A-a thief enters into a house with an intention to steal money, jewellery, etc. While doing so, he notices that there are no persons, except a house-wife. He rapes her. The law imposes the highest punishment on A. If A only steals without rape, the law shall impose lighter punishment.
(b) If Chalapathi Rao and Vijayavardhana Rao only plundered the bus passengers, and left them without burning, definitely, the Court should impose lesser punishments such as imprisonment with or without fine.
(c) Z rapes X-a woman. Later with a fear that X recognises him and complains to the police, he kills her. The law imposes severe punishment on Z.
In the three above examples, the criminals had alternative lesser crimes, but they opted the highest serious natured crimes. Hence the law does not excuse them.
3. The Character of the Offender:
In proving a particular criminal act of the accused, the law does not consider his past character according to the law of evidence. However, once his guilty is proved in the Court, the law then considers his past character in measuring his criminal liability and punishment. The law adopts the principle that the worse the character or disposition of the offender the more severe should be his punishment.
Badness of disposition is calculated depending upon the constitution either by the strength of the impulses to crime, or by the weaknesses of the impulses towards law-abiding conduct.
There are several factors of anti-social elements depending upon the psycho, economical and social factors of such badness of disposition. It differs from man to man. The greater attitude of law-breaking character of a person requires greater punishment for the control of such person.
An ordinary man shall have normal temptation towards badness. An anti-social person shall have the double or triple temptation towards badness. Therefore, badness of disposition is a ground for severity of punishment.
Hence habitual offenders are punished with severe punishments, whereas the criminaloids (first offenders) are punished with lesser punishments and are given a chance to reform themselves.
In case of habitual offenders and recidivists, the severe punishments and penalties are imposed, which shall have no relation with the magnitude or to the profit of the offence.
To kill his own father for the sake of the property is treated most worst crime and such characterless son shall be punished with severe punishment, i.e., capital punishment.
To kill his own wife with an intention to marry another woman is a most heinous crime, and such husband shall be punished with severe punishment, i.e., capital punishment.
Another calculated factor is sensibility. Certain persons do not shame to crimes. They lose the sensibility and humanity. The more depraved the offender, the less he feels the same of punishment.
He also does not fear about the punishment. He creates more violence in the society. He uses bombs, giletines, etc., to blast the buildings, bridges, jeeps, trains, etc., and causes several deaths, like 40 deaths in Gokul Chat Bomb blast (25-09-2007) Such a person does not feel any sensibility for such deaths. Therefore, only the severe punishment such as capital punishment is suitable to him.
Another point is that a man may be excused who did the crimes under unavoidable circumstances such as temporary emotions, angerness, psychological weakness, etc. and can be imposed lesser imprisonment.
However, if a man commits a heinous crime willfully, he is not excusable, and he must be imposed severe punishments. For example, where a father rapes his own daughter and he does not feel any sensibility or shame for his heinous crime, such person should not be excused.
Section 75 imposes enhanced punishment on the offenders for the certain offences under Chapter-XII or Chapter-XVII, who did the offences of those Chapters and previously convicted for more than three years.