Writ Petition Crimi nal No 2 16 of 1989 Under Article 32 of the Constitution of India Surya Kant and MC Mehta for the Petitioner
Anil Dev Singh Girish Chandra Ms A Subhashini and Dalveer Bhandari for the Respondent
777 The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is a petition under Article 32 of the Constitution filed by one Madhu Mehta who is the National Convenor of Hindustani Andolan
This petition seeks a writ of Habeas Corpus or an appropriate direction with regard to one Shri Gyasi Ram So Shri Param aged above 60 years who it is claimed has been waiting decision on his Mercy Petition pending before the President of India for about 8 or 9 years
The said Gyasi Ram was at all relevant time lodged in DEATH CELL CENTRAL JAIL JHANSI having been convicted for an offence punishable under section 302 of Indian Penal Code and sentenced to death by the learned Sessions Judge Jhansi on October 19 1978
It appears that Gyasi Ram was convicted and sentenced to death by the learned Sessions Judge Jhansi on 19th October 1978 for committing murder which has been described by the Under Secretary Judicial Ministry of Home Affairs Govt
of India as the cold blooded murder  of a Government servant namely Bhagwan Singh who was the resident of Mauranipur Tehsil in District Jhansi Uttar Pradesh
There then were arrears of land revenue due from Gyasi Ram and also one Mool Chand
For the purpose of realising the said arrears of land revenue their property was attached by Amin Bhagwan Singh and the same was put to sale by auction
The auction took place on 26th December 1976 and after the auction while the said Amin was returning along with his Peon Sripat from village Kakwara after delivering the sale certificate to the auction purchaser they were way laid by Daya Ram son of Mool Chand and Gyasi Ram the convicts involved in this case
In the evidence it was stated that Daya Ram who was armed with pistol fired at the deceased Amin Bhagwan Singh who fell down from his cycle
While Daya Ram held down Amin Bhagwan Singh Gyasi Ram the person about whom this peti tion is concerned cut Bhagwan Singh s throat with the sword he was carrying and inflicted other injuries also
After this incident both Daya Ram and Gyasi Ram it has been stated escaped
Gyasi Ram was however arrested tried convicted and sentenced to death as mentioned hereinbefore
The death sentence was passed on Gyasi Ram by the learned Sessions Judge on 19th October 1976
The Allahabad High Court confirmed this death sentenced on 28th February 1979
This Court dismissed his Criminal Appeal No 36279 on 17th March 1981
Mercy Petition was filed by the wife of the convicted to the President of India on 18th December 1981
It appears that Mercy Petition has still not been disposed of
Daya Ram had absconded and could not be put on trial along with Gyasi Ram
It appears further that Gyasi Ram s Mercy Petitions dated 6th October 778 1981 and 26th November 1981 were rejected by the Governor of Uttar Pradesh on the 26th November 1981 and were re ceived in the Ministry of Home Affairs on the 5th December 1981 for the consideration of the President of India
From the affidavit filed on behalf of the Government of India it appears that after processing the case the matter was put up before the President of India on 21st April 1983 for his orders on the Mercy Petitions and that the President after examining the case file returned the file on 30th July 1983 for further consideration
While the Ministry of Home Affairs was processing the case of Gyasi Ram further the intimation was received from this Court on 13th November 1984 that Daya Ram son of Mool Chand had also filed a Special Leave Petition against the judgment date 17th Octo ber 1984 of the Allahabad High Court by which the sentence of death was confirmed on him
It appears from the order of this Court dated 18th February 1985 dismissing Daya Ram s Special Leave Petition that this Daya Ram was the same person who was Gyasi Ram s partner in the crime as mentioned hereinbefore
Subsequently two Mercy Petitions were filed on behalf of Daya Ram which were forwarded for the consider ation of the Governor of Uttar Pradesh in the first instance by the Ministry of Home Affairs dated 9th April 1984 and 9th August 1985 respectively
These still remain undisposed of
It has been asserted on behalf of the Government of India in the half yearly return dated 8th August 1985 submitted by the Government of Uttar Pradesh that it was reported that they had received a Mercy Petition from Daya Ram
Thereafter in successive half yearly reports the last of these being dated 16th January 1989 the State Govern ment had been saying that the Mercy Petition of Daya Ram was still under consideration
It is the version of the Govern ment that in view of the implications of Daya Ram and Gyasi Ram in the same crime it was considered it is stated that the decision on the Mercy Petition of Daya Ram by the Gover nor of Uttar Pradesh would have a direct bearing on the consideration of the Mercy Petition of Gyasi Ram by the President of India
It was accordingly felt so it is asserted that it was desirable to await the decision of the Governor of Uttar Pradesh on Daya Ram s Mercy Petition
But it was only on 18th January 1989 that by a Wireless Message the Central Government asked the State Government to let the Ministry of Home Affairs know the decision of the Governor on Daya Ram s Mercy Petition and to send it immedi ately for consideration of the President of India so that the cases of Gyasi Ram and Daya Ram could be submitted together to the President
But the Government did not move
It is further stated that in reply to the Wireless Message of 18th January 1989 the State Government through its letter dated 1st February 1989 intimated that the Mercy Petition of 779 Daya Ram was still under consideration
Thereafter there was another request to the Chief Secretary by demi official letter of the Ministry of Home Affairs dated 3rd February 1989 to expedite consideration of Daya Ram s Mercy Petition
And upon this it is stated that by a telex message dated 15th March 1989 the State Government had intimated that the Governor of Uttar Pradesh had rejected the Mercy Peti tion and that formal letter of State Government would fol low
It was stated on behalf of the Government of India that Mercy Petition of Daya Ram was received by the Ministry of Home Affairs on 21st March 1989 along with the letter
In the affidavit it is stated that after collecting certain further information from the Supreme Court Registry the Ministry of Home Affairs was now ready to process the Mercy Petitions of Gyasi Ram and Daya Ram and submit the same to the President of India for consideration
The deponent was good enough to state in the affidavit that the delay factor would be kept in view while taking a final decision in the case of Gyasi Ram and he was fully aware of the agony of Gyasi Ram and members of his family
It was stated that in view of the reasons stated above it was not possible to avoid the delay
The learned District and Sessions Judge Jhansi had in the meantime visited the said convict Gyasi Ram in jail on 22nd May 1988 and had sent a report to the Inspector Gener al of Prisons stating Gyasi s mental state is such that he might commit suicide by hanging his head on the iron grill of his cell if a decision on his petition is not taken soon
If he is to be hanged it should be done without any delay or he should be released
The Inspector General s Office further sent an official to Delhi to expedite the case
Thereafter this petition was filed for the condemned pris oner
Gyasi Ram until the orders of this Court passed in these proceedings on the 3rd May 1989 was kept in the Death Cell and it is only pursuant to the orders of this Court that the prisoner was allowed to stay in the Ordinary Cell during the day time
The petitioner moved this Court on 11th April 1989 and the notice was issued returnable on 19th April 1989
Time was taken to file affidavit and the order of this Court dated 3rd May 1989 was passed
The matter was adjourned for three months
Affidavits have been filed but his Mercy Petition still remains undisposed of
The question is what is to be done This question of delay in these matters has been examined by this Court from time to time and how far delay in execution of death sentence necessitates the commutation of the death sentence or re lease of the condemned prisoner has been a matter of some controversy and debate
In TV Vatheeswaran vs State of Tamil Nadu  a bench of two learned Judges considered this 780 aspect
Speaking for this Court Chinnappa Reddy J stated in that decision that Article 21 of the Constitution enjoins that any procedure which deprives a person of his life or liberty must be just fair and reasonable
It implies humane conditions of detention preventive or punitive Procedure established by law  does not end with the pronouncement of sentence it includes the carrying out of sentence
Pro longed detention to await the execution of a sentence of death is an unjust unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death
Reddy J was of the view that the sentence of death is one thing sentence of death followed by lengthy impris onment prior to execution is another
A period of anguish and suffering is an inevitable consequence of sentence of death but a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not
And it was no answer to say that the man would struggle to stay alive
It was therefore found in that case that a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death
This Court did so and substituted the sentence of imprisonment in that case
That decision was rendered on 16th February 1983
The validity of that deci sion did not last long
On 24th March 1983 in Sher Singh  Ors
vs The State of Punjab   a bench of three learned Judges of this Court held that the prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed
But no hard and fast rule that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death  can be laid down as has been done in Vatheeswaran s case supra
It is not necessary therefore to go into the aspect of this matter any more
Chief Justice Chandrachud observed that a self imposed rule should be followed by the executive authority rigorously that every mercy petition should be disposed of within a period of three months from the date on which it was received
Long and interminable delay in the disposal of these petitions it was observed are serious hurdles in the dispensation of justice and indeed such delays tend to shake the confidence of the people in the very system of justice
The learned Chief Justice stated that undoubtedly the executive has the power in appropri ate cases to act under the aforesaid provisions but all exercise of power is preconditioned by the duty to be fair and quick
Delay defeats justice it was observed
In this background we have to consider the reasons given in the affidavit in this case
We have set out the 781 reasons advanced on behalf of the Government
They are self explanatory
These do not in our opinion indicate any justifiable ground for keeping the Mercy Petitions of Daya Ram and Gyasi Ram pending for such a long time
Indeed it is not disputed from the affidavit of the Under Secretary Ministry of Home Affairs Government of India that in the half yearly return dated 8th October 1985 and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th January 1989 year after year the Mercy Petitions of Daya Ram remained unattended and undis posed of and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed
The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promp titude which in these matters should be there
In the mean time there is no denying the fact that Gyasi Ram has suf fered a great deal of mental pain and agony
His condition has been described by the learned Sessions Judge as indicat ed hereinbefore
Whether death sentence is the appropriate punishment for the crime of murder cold blooded in certain cases is another debate
This Court in Bachan Singh vs State of Punjab  at page 221 of the report observed as follows To sum up the question whether or not death penalty serves any penological purpose is a difficult complex and intractable issue
It has evoked strong divergent views
For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 IPC on the ground of reasonable ness in the light of Articles 19 and 21 of the Constitution it is not necessary to express any categorical opinion one way or the other as to which of these two antithetical views held by the Abolitionists and Retentionists is correct
It is sufficient to say that the very fact that persons of reason learning and light are rationally and deeply divided in their opinion on this issue is a ground among others for rejecting the petitioners  argument that retention of death penalty in the impugned provision is totally devoid of reason and purpose
If notwithstanding the view of Abolitionists to the contrary a very large segment of people the world over including sociologists legislators jurists judges and administrators still firmly believe in the worth and necessity of capital punish ment for the protection of society if in the perspective of prevailing crime conditions in India contemporary public 782 opinion channelised through the people s representatives in Parliament has repeatedly in the last three decades rejected all at tempts including the one made recently to abolish or specifically restrict the area of death penalty if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world if the framers of the Indian Constitution were fully aware  of the existence of death penalty as punishment for murder under the Indian Penal Code if Thirty fifth Report and subsequent reports of the Law Commission suggesting retention of death penalty and recommending revision of the Criminal Procedure Code and the insertion of the new sections 2352 and 3543 in that Code providing for pre sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972 73 it look up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure 1973 it is not possible to hold that the provision of death penalty as an alternative punishment for murder in section 302 Penal Code is unreasonable and not in the public interest
We would there fore conclude that the impugned provision in section 302 violates neither the letter nor the ethos of Article 19
 In that decision Bhagwati J as the learned Chief Justice then was dissented
He held that death sentence was bad morally as well as constitutionally
It is no longer necessary in view of the majority judgment to deal with these views in detail
This aspect was examined in several cases and a bench of five learned Judges considered this question again in Smt
Triveniben vs State of Gujarat   where Oza J speaking for the majority analysed the trend and observed at p 688 that it was not necessary to go into the jurisprudential theories of punish ment deterrent or retributive in view of what has been laid down in Bachan Singh s case supra with which learned Judges therein agreed
It is well settled now that undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to be approached under Article 32 of the Constitution but this Court would only examine the nature of delay caused and circumstances that ensued after sentence was finally con firmed by the judicial proces and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death
But the court is entitled and indeed obliged to 783 consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of sentence should be carried out or should be altered into imprisonment for life
No fixed period of delay can be considered to be decisive
It has been emphasised that Article 21 is relevant in all stages
Speedy trial in crimi nal cases though may not be fundamental right is implicit in the broad sweep and content of Article 21
Speedy trial is part of one s fundamental right to life and liberty
This principle is no less important for disposal of mercy peti tion
It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture
See the observations of Shetty J in Triveniben s case supra at p 7 13 7 14 of the report where it has been observed that as between funeral fire and mental worry it is the latter which is more devastating for funeral fire burns only the dead body while the mental worry burns the living one
In the instant case Gyasi Ram has suffered a great deal of mental agony for over eight years
It is not disputed that there has been long delay
We do not find reasons sufficiently commensurate to justify such long delay
The convict has suffered mental agony of living under the shadow of death for long far too long
He should not suffer that agony any longer
In the aforesaid facts and the circumstances of the case therefore we direct that the death sentence should not be carried out and the sentence imposed upon him be altered to imprisonment for life
We order accordingly
This Writ Petition is disposed of with the aforesaid direc tion
Y Lal Petition dis posed of


Summary:
In the Sessions trial of the appellants accused under section 302 34 IPC the prosecution examined 34 wit nesses including the Investigation Officer PW 34
The Trial Court examined the accused under section 313 of the Code of Criminal Procedure 1973 and recorded their state ments
Thereafter the Public Prosecutor filed an application for re examination of the first appellant under section 313 which was rejected by the Trial Court
An unsigned correction slip without any application and service on the defence counsel was also filed seeking correction in the statement of PW 34
The Trial Court recti fied the typographical errors but refused to make other corrections which would have changed the substantive part of the evidence
The State preferred a Criminal Revision in the High Court which stated that the Trial Court has not followed proper procedure regarding correction or recorded evidence
The High Court expunged the examination under section 3 13 of all the accused reserving liberty to the prosecution to file application for re examination of PW 34 and accepted the demand for transfer of the case
Hence these appeals
Allowing the appeals and reversing the order of the High Court HELD 1
The object of section 278 is two fold firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes
If the 736 correction suggested by the suggested by the witness is one which the judge consideration necessary he will make it at once as required by sub section 1 but if the correction is such that the judge does net consider necessary subsec tion 2 requires that a memorandum of the objection be made and the Judge add his remarks if any thereto
741E 1 1 In the instant case the trial judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition
The section is not intended to permit a witness to resile from his statement in the name of correction
The trial judge was justified m refusing to effect the change which he thought was intended to change the earlier version
He did not make a memorandum as the correction slip was unsigned and was not properly filed
Since the correction slip as well as the remarks of the trial judge have become a part of the record nothing more need he done as the provisions of section 278 are substantially complied with
741F G 2
The object of section 313 is that the accused may he given an opportunity of explaining each and every circum stance appearing against him
The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to he put to the accused
It is his duty to exam ine the accused as per law
It is however open to the prosecution to invite the attention of the Court to any incriminating circumstance left out and not put to the accused
742C D 2
I In the instant case after the prosecution has closed the evidence the accused were examined under section 313 of the Code
The prosecution did not at any stage move the trial judge for recalling PW 34 for further examination
Therefore there was no justification for the High Court for giving liberty to the prosecution for re examination of PW 34 and expunging the examination of all the accused under section 313
742A 741H 3
In the instant case as the trial judge has since retired the question of transfer of the case to another Bench of the City Sessions Court does not arise
742E