JUMMAN KHAN v.

STATE OF U.P.

NOVEMBER 30, 1990

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA

~EDDY, JJ.]

Indian Penal Code, 1860: Section 302-Murder--Death sentence Constitutional validity of.

Criminal Procedure Code, 1973: Sections 235(2)-Sentence- Pre-tf.ecisional opportunity of hearing to accused-Statutory mandate- Not a mere formality strict compliance required.

Sections 368, 413, 414 and 415-Sentence of death-Whether open to review-Undue delay in execution-Subsequent supervening circumstances warranting interference.

Constitution of India, 1950: Article 21: Capital punishment- Constitutional validity of.

Practice & Procedure: New plea-raising of-For the first time- Permissibility of.

The petitioner was charged with rape and murder of his neighbonr's six year old daughter. As per the post-mortem report, the victim was hrutually raped and strangulated to death. The Trial Court found the petitioner guilty under both the charges and sentenced hbu to undergo life imprisonment under Section 376 IPC and to death under Section 302 IPC. On an appeal preferred by him, the High Court confirmed the conviction and sentences passed by the Trial Court.

Aggrieved by the judgment of the High Court, the petitioner filed a special leave petition which was dismissed by this Court. Thereafter he presented a mercy petition and the Governor rejected the same. The petitioner filed a review petition against the rejection of his mercy petition. The execution was stayed initially, but the stay was vacated, later.

The petitioner addressed a mercy petition to the President of India and it was rejected. Snbseqnent mercy petition to the President also met the same fate.

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JUMMAN KHAN v. STATE OF U.P. 399

In the present writ petition, the petitioner contended that there A was substantial non-compliance with the mandatory provisions of Section 235(2) of the Code of Criminal Procedure of 1973, vitiating the imposition of the sentence of death; that the constitutional validity of capital punishment upheld by this Court in Bachan Singh's case [1980]

2 sec 684 deserved to be reviewed by a larger Bench since it was just and necessary that the vires of Section 302 IPC has to be re-examined B taking into account all subsequent decisions of this Court rendered in the context of Article 21 of the Constitution; that since there has been an undue delay in consideration of the mercy petitions submitted by the petitioner praying for clemency both to the President as well as the Governor, the petitioner was entitled for commutation of the death sentence to one of imprisonment for life.

Dismissing the writ petition, this Court,

HELD: 1.1. The sentence in every criminal case when confirmed by this Court is justified and, therefore, normally it is not open for review or reconsideration. However, this Court on several occasions in D appropriate cases, even after the imposition of sentence of death reached its finality, has commuted the sentence to one of life imprisonment by exercising its extraordinary powers when this Court felt that the execution of that sentence was not justified on account of the subsequent supervening circumstances namely, the undue long delay which has elapsed since the confirmation of this sentence by this Court. This is E based on the principle that sentence of death is something and the sentence of death followed by lengthy imprisonment prior to execution is another. [406F-H]

1.2. In the instant case, there is no undue delay and so the sentence of death imposed on the petitioner does not call for interference on F the ground of delay in execution of the death sentence. [404E]

Sher Singh v. State of Punjab, [1983] 2 SCC 344 and Triveniben v.

State of Gujarat, [1989] 1 SCC 678, followed.

T. V. Vatheeswaran v. State of Tamil Nadu, [1983] 2 SCC 68, G referred to.

2. Death sentence is constitutionally valid. The decision in Bachan Singh's case needs no reconsideration. [405E-F]

Bachan Singh v. State of Punjab, [1980] 2 SCC 684, aff'trmed.

Sher Singh v. State of Punjab, [1983] 2 SCC 344; A//audin Mian

v. State of Bihar, [1989] 3 SCC 5 and Triveniben v. State of Gujarat, [1989] l sec 678, relied on. ;'

3.1. The mandatory provision of Section 235(2) of the Criminal Procedure Code, 1973 provides that the accused must be given an apportunity in regard to the sentence and it is only after hearing him the Court has to pass the sentence according to law. The strict comp liance of this provision is a statutory mandate but not a mere formality and so it must be scrupulously followed in its true spirit. [404D)

3.2 ln the instant case, the plea that Section 235(2) of the Crimi nal Procedure Code was not complied with, bas been raised for the first time. Since the Trial Court bad in fact heard the petitioner on the question of sentence, but of course on the same day, such a new plea cannot be accepted at this stage. [404E-F)

Santa Singh v. State of Punjab, [1977] l SCR 229; Muniappan v.

D State of Tamil Nadu, [1981] 3 SCR 270 and Allaudin Mian v. State of Bihar, [1989] 3 SCC 5, relied on.

4. On the basis of the relevant records, there is absolutely no ground for reconsideration of the orders of the President rejecting the mercy petitions in this case. [ 409F]

Kehar Singh and Another v. Union of India and Another, [1989) 1 sec 204, referred to.

ORIGINAL JURISDICTION: Writ Petition (Cr!.) No. 493 of 1988.

(Under Article 32 of the Constitution oflndia).

R.K. Jain, S.R. Bhat, Ms. Abha R. Sharma and Alok Agarwal for the Petitioner.

G V.C. Mahajan, Dalveer Bhandari, Prashant Chowdhary, Ms.

Anil Katiyar and Ms. A Subhashini for the Respondent.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. To be or not to be hanged"-is the H tormenting question that comes up for consideration in this present Writ Petition.

The petitioner, Jumman Khan who is facing the gallows on being condemned to death is seeking issuance of a writ of mandamus commanding the respondent (State of (U .P.) through its Secretary, Home Department not to carry out the sentence of death awarded to him in case No. 367 /84 by the Additional District and Sessions Judge, Agra as confirmed by the judgment and order of the High Court of Allahabad as well as the order of this Court dated 20.3.1986, dismissing the Special Leave Petition (Criminal) No. 558/86 and also for a direction directing the respondent to commute the sentence of death to one of imprisonment for life. The indubitable factual matrix leading to the filing of the present Writ Petition may be re-capitulated.

On the fateful day of the occurrence i.e. 22.6.1983 at about 4.00 P .M. the petitioner went to the house of his neighbour Ausaf Khan while he was away and requested Dulhey Kb~ Begum, wife of Ausaf Khan to allow her six years old daughter, Sakina who an unfor!unate victim in this case, on the pretext that he wanted her to bring some ice from the market. Dulhey Khan begum allowed her daughter to accompany the petitioner and fell asleep. When she woke up after about an hour, she found that her daughter had not returned. Though at first, she thought that Sakina might be playing along with other children in the neighbourhood outside the house, as time passed by she became panicky. Finding the child not returned, she made a futile search. When she went to the petitioner's house, it was found locked.

After her husband returned from work at 7 .00 P .M. an unsuccessful incisive and frantic search for the child was made in the neighbourhood. Hearing the information of the missing of the child, a crowd collected. When Ausaf Khan again went to the petitioner's house in search of his daughter, he was told by a neighbour that at about 4.30 P.M. when he was passing by the petitioner's house he noticed Sakina entering that house with ice wrapped in a cloth and the petitioner taking her inside holding her hands. One of the persons of the locality further informed Ausaf Khan that while he was passing the petitioner's house, he heard the screaming of a child emanating from the house of the petitioner. The irate crowd went to the petitioner's house and flashed a torch through the crevice in the door and found a dead body

lying on a cot wrapped in a veil (burka). Then the public effected entry and shcokingly found that it was the dead body of Sakina with extensive markets of injuries on her body. Ausaf Khan made a written report on the basis of which a case was registered under Section 302 and 376 IPC. The petitioner was arrested at Aligarh on 25.6.1983. The post-martem examination of Sakina revealed that she had been brutally raped and strangulated to death. The police after completing the

investigatfon filed the charge-sheet. The petitioner took his trial under charges 376 and 302 IPC. The Trial Court found the petitioner guilty under both the charges and sentenced him to life imprisonment under Section 376 IPC and to death under Section 302 IPC. The High Court on appeal confirmed the conviction and sentences passed by the Trial Court, holding as follows:

"Considering the nature and most gruesome and beastly act perpetrated by the appellant, the appellant deserves no leniency. He had committed premeditated rape on a helpless child aged about six years and he had gone to the extent of strangulating her to death."

Feeling aggrieved by the judgment of the High Court, the petitioner filed SLP (Criminal) No. 558/86. This Court by its Order dated 20th March 1986 dismissed the SLP observing thus:

"Although the conviction of the petitioner under Section 302 of the Indian Penal Code, 1860 rests on circumstantial evidence, the circumstantial evidence against the petitioner leads to no other inference except that of his guilt and excludes every hypothesis of his innocence. Apart from the circumstances brought out by the prosecution, each one of which has been proved, there is no extra-judicial confession which lends support to the prosecution case that the child had been raped by the petitioner and thereafter strangulated to death.

Failure to impose a death sentence in such grave cases where it is a crime against the society-particularly in cases of murders committed with extreme brutality-will bring to naught the sentence of death provided by S. 302 of the Indian Penal Code. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment. The only punishment which the appellant deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust, is nothing but death as a measure of social necessity and also a means of deterring other potential offenders. The sentence of death is confirmed."

The petitioner presented a mercy petition dated 12.4.1986 praying for clemency but it was rejected by the Governor on 18,2.1988 as seen from the connected files produced from the Home Ministry. The petitioner filed a review petition against the order of rejection of his mercy petition. Though initially there was a stay of his execution, the stay was vacated on 6/7th November 1988. The mercy petition addressed to the President of India was received in the Ministry of Home Affairs along with the connected papers on 28.3.1988 and the same was rejected by the President on 10.6.1988. Subsequently, another mercy petition dated 15. 7 .1988 addressed to the President was received by the Ministry of Home Affairs through the State Government and the same was also rejected in the month of October 1988.

While it is so, the petitioner filed this Writ Petition. This Court by an Order dated 10.11.1988 stayed the execution and thus the sentence of death imposed on the petitioner is now under suspension consequent upon the stay order.

Mr. Jain, the learned senior counsel, appearing on behalf of the petitioner though initially advanced an argument that capital punishment should not be imposed in a case where the conviction is based exclusively on circumstantial evidence, did not press that argument when it was brought to his notice that such an argument is not available to him, in the present case on the face of the dismissal of the S.L.P. by this Court confirming the death sentence on the basis of the circum stantial evidence and that judgment is not open for review. However, he strongly pressed the following submissions in support of the reliefs sought for, namely:

( 1) There was Substantial non-compliance with the mandatory provisions of Section 235(2) of the Code of Criminal Procedure of 1973, vitiating the imposition of the sentence of death.

(2) Drawing strength on the dissenting judgment of P.N.

Bhagwati, J (as he then was) Bachan Singh v. State of Punjab,

[ 1982] 3 SCC 24 holding that Section 302 of the Indian Penal Code in so far as it provides for imposition of death penalty as an alternative to life imprisonment is ultra-vires and void as being violative of Articles 14 and 21 of the Constitution, since it does not G provide any legislative guidelines when life should be permitted to be extinguished by imposition of death sentence, Mr. Jain pleaded that the judgment of the majority in Bachan Singh's case [1980] 2 SCC 684 deserves to be reviewed by a larger Bench in view of the fact that the said decision which upheld the death penalty was rendered in the context of a far more restrictive interpretation of H

Article 21 and, therefore, it is not only proper, but also just and necessary that the vires of Section 302 !PC has to be re-examined taking into account all subsequent decisions of this Court rendered in the context of Article 21, the dimensions of which have been truly expanded in Maneka Gandhi v. Union of India, (1978] 2 SCR 621 and Suni/ Batra v. Delhi Administration, [1979]

1SCR392.

(3) As there has been an undue delay in consideration of the mercy petitions submitted by the petitioner praying for clemency both to President as well as the Governor, the petitioner is entitled for commutation of the death sentence to one of imprisonment for life.

Now we shall examine the above submissions in seriatim. The mandatory provision of Section 235(2) of the Code provides that the accused must be given an opportunity in regard to the sentence and it is only after hearing him the Court has to pass the sentence according to law. The strict compliance of this provision is a statutory mandate but not a mere formality and so it must be scrupulously followed iii its true spirit. See Santa Singh v. State of Punjab, [!977] l SCR 229; Muniappan v. State of Tamil Nadu, [ 1981] 3 SCR 270 and Allauddin Mian v. State of Bihar, [1989] 3 SCC 5.

Admittedly, the present contention that Section 235(2) of the Code has not been complied with, was neither raised before the High Court nor before this Court in the SLP. Moreover, this plea has not been taken initially even in the present Writ Petition, but only in additional grounds. Mr. Dalveer Bhandari, learned counsel appearing on behalf of the respondent drew our attention to the relevant portion of the judgment and order of the Trial Court whereunder the Trial Court after finding the appellant guilty under both the charges made a note that the appellant would be heard about the sentence by 2.30 P.M. In the same judgment, there is another note reading that at 2.30 P.M. the appellant was heard on the question of sentence and besides the learned counsel appearing for the appellant was also permitted to address arguments on that question.

In addition to that Mr. Dalveer Bhandari stated that the petitioner has not been prejudiced in any manner nor any prejudice to the petitioner by such a course has been shown now to this Court and hence this arugment cannot be countenanced. Having. regard to the H facts that this plea is raised only for the first time and that the Trial

Court in fact has heard the petitioner on the question of sentence, but of course on the same day, we hold that this submission made on behalf of the petitioner does not merit consideration.

Mr. Jain, advocating the views of abolitionists contended with vehemence and persistence that death penalty is not only outmoded, unreasonable, cruel or unusual punishment but also defiles 'the dignity of the individual' within the preamble to the Constitution and also violates the basic structure of the Constitution. Added to that, the learned counsel with strong intensity of conviction made a fervent but inexorable plea that the question of death penalty cannot be foreclosed for ever on the doctrine of stare decisis and that that question still needs reconsideration by a larger Bench afresh, especially in view of the expanding horizon of Article 21 of the Constitution which Article stands like sentinel over human misery, degradation and oppression. According to the learned counsel, unfortunately all those decisions upholding the constitutional validity of the sentence of death becloud more than they clarify the constitutionality of capital punishment.

Be it noted, save the dissenting view of Bhagwati, J (as he then was) in Bachan Singh's case (the majority judgment of which is reported in [ 1980) 2 SCC 684 with a dissenting order of Bhagwati, J and the full text of the dissenting view of the learned Judge is reported

in [ 1982] 3 SCC 24 not even a single decision of this Court which has E caused the slightest shadow of doubt on the constitutionality of capital punishment was brought to our notice. It is pertinent to note that the submission of the death penalty violates Articles 14 and 21 of the Constitution was totally negatived by the majority in Bachan Singh's case (1980] 2 SCC 684. On the other hand Chandrachud, C.J. speaking for the bench comprised of three Judges in Sher Singh v. State of F Punjab, [ 1983) 2 SCC 344 has been assertive in expressing the following view with regard to the constitutional validity of death sentence, which view is as follows:

"Death sentence is constitutionally valid and permissible within the_ constraints of the rule in Bachan Singh. This has G to be accepted as the law of the land. We do not, all of us, share the views of every one of us. And that is natural because, every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life. But the decisions rendered by this Court H

after a full debate have to be accepted without mental reservations until they are set aside."

The Constitution Bench of this Court in Smt. Triveniben v. State of Gujarat, [ 1989] 1 SCC 678 has reaffirmed the constitutional validity of death sentence. See also Alluddin's case (albeit). Thus, virtually on B every occasion, any challenge touching on the constitutionality of the death sentence, it has been asserted affirmatively that the constitution does not prohibit the death penalty.

In A/lauddin's case, this Court has held that "the Judge may visit the convict with the extreme punishment provided there exist special reasons for so doing" and summarily rejected the plea for setting aside the capital sentence observing:

"In the face of this statutory provision which is consistent with Article 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, we are unable to countenance counsel's extreme submission of. death in no case."

We are in full agreement with the view chronologically expressed in Sher Singh's case Bachan Singh's case and Allauddin's case holding that the death sentence is constitutionally valid. In that view, we are of the firm opinion that the decision of the majority in Bachan Singh's case needs no re-consideration. The submission made by Mr. Jain is unpersuasive. In fact, a similar question urged in Ailauddin's case did not find favour and it was rejected.

The sentence in every criminal case when confirmed by this Court is justified and, therefore, normally it is not open for review or reconsideration. However, this Court on several occasions in appropriate cases even after the imposition of sentence of death reached its finality has commuted that sentence to one of life imprisonment by exercising its extaordinary powers when this Court felt that the execution of that sentence was not justified on account of the subsequent supervening circumstances namely, the undue long delay which has elapsed since the conformation of that sentence by this Court. This is based on the principle that sentence of death is something and the sentence of death followed by lengthy imprisonment prior to execution is another. See Sher Singh's case (albeit).

The next question that arises for our consideration is whether any rigid and inflexible rule can be laid down as to the period of delay that would be sufficient to justify interference with the sentence of death and the commutation of that sentence to one of life imprisonment. ,

Chinnappa Reddy, J. in T. V. Vatheeswaran v. -State of Tamil Nadu, [ 1983] 2 SCC 68 while considering the implications of prolonged delay in execution of sentence of death observed thus:

"Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think 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."

The above view was not accepted in Sher Singh's case wherein it

has been held that no hard and fast rule can be laid down as has been D done in T. V. Vatheeswaran's case (supra). Further in Sher Singh's case the following dictum has been laid down:

''Therefore, with respect, the fixation of the time limit of two years does not seem to us to accord with the common experience of the time normally consumed by the litigative E process and the proceedings before the executive.

Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities, we are of the F opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death G sentence should be vacated .

. . . . . Therefore, it is understandable that a convict sentence to death will take recourse to every remedy which is available to him under the law to ask for the commutation of his sentence, even after the death sentence is finally H

confirmed by this Court by dismissing his special leave petition or appeal. But, it is, at least, relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice. It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification. Stay orders are obtained in those proceedings and then, at the end of it all, comes the argument that there has been prolonged delay in implementing the judgment or order. We believe that the Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it. If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation. And then, the rule of two years will become a handy tool for defeating justice. The death sentence should not, as far as possible, be imposed. But, in that rare and exceptional class of cases wherein that sentence is upheld by this Court, the judgment or order of this Court ought not to be allowed to be defeated by applying any rule of thumb."

The Constitution Bench of this Court in Triveniben's case considered in detail the questions relating to, (!) delay in execution of sentence of death; (2) what should be the starting pointing for commuting this delay? (3) what are rights of a condemned prisoner who has been sentenced to death but not executed?; and (4) what could be the circumstances which could be considered along with the time that has been taken before the sentence is executed, and finally recorded its conclusion thus:

"Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensured after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of

inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed peribd of delay could be held to make tlie sentence of death iriexecutable artd to this extent the dedision ill Vatheeswatan case cannot be said to lay down the correct law and, therefore, to that extent stands overruled.

We shall now examine the submission of Mr. lain and see Whether thete has been undue delay in the present case which would be sufficient to justify interference with the sentence of death imposed on the petitioner. the SLP was disposed of on 28.3.1986. the petition

fot clemency was presented by ihe petitioner on 12.4.1986 which was C rejected by the Governor on 18.2.88. It has been stated before us that the mercy petitioh addressed to the President simultaneously through the Governor was received in the Ministry of Home Affairs along with the connected papers on 28.3.8S but the same was rejected by the President on 10.6.88 i.e. iii less than three months, Meanwhile; on the review petition presented before the Govefuot, a stay of the execution D was granted bUt that stay was vacated on 6/7th November 1988. The second mercy petition dated 15,7.88 addressed to the President was also rejected in the month of October 1988. It was only thereafter, he filed this writ petition on 10.1 L88 and the sentence of death imposed on him Is kept Under suspension pursuant to the stay order passed by this Court therefore; the alleged delay when examined in the light of E the ptindpies ertliriciated in Triveniben's case we ate constrained to hold that there is no undue delay and consequently the impugned sentence of death does not call for irtterference on the ground of delay In execution of ihe death senterice. ·

Lastly, it has been requested by the learned counsel that the F mercy petitions already rejected by the President tequite .te-consi• deration as per the ratio in Kehat Singh and Andther v, Union of India and Another, ( 1989i 1 sec 204. to examine that request, we sent for ihe entire file from the Ministry of I-iome Affairs and waded tittougli it very carefliliy and we are satisfied that there is absolutely no gtound to accede to this request.

In the tesult; for the above-mentiOiied reasons, we reject ali the contentions taised ort behalf of the petitioner and dismiss the wtit petition as devoid of any merit.

Petition dismissed. H