AI Structured Summary
Not yet generated for this judgment
Judgment
David Annoussamy, J.—This is a petition praying this Court to commute the sentence of death into one of imprisonment for life. The case of the Petitioner as put forth in the affidavit sworn to by a Member of the Tamil Nadu Bar on behalf of the Petitioner is as follows: The Petitioner was convicted for an offence of murder and sentenced to death by the learned Sessions Judge, Tirunelveli, in S.C. No. 87 of 1976 on 8th February, 1977. A Division Bench of this Court confirmed the sentence by judgment, dated 15th June, 1977. The leave to appeal was dismissed by this Court on 28th October, 1977 and the SLP filed before the Supreme Court was dismissed on 11th September, 1978. The mercy petition addressed by Petitioner on 20th October, 1978 was first rejected by the Governor of Tamil Nadu and then by the President of India on 22nd August, 1981. The execution was fixed to take place on 15th September, 1981. 38 Members of Parliament presented a memorandum to the President of India praying for commutation of the sentence of death. On 8th September, 1981 a telex message was received from the Government of India staying the execution of the Petitioner until further orders. Finally the request of the Members of Parliament was not acceded to and orders were passed on 6tb June, 1984 vacating the stay. The execution was fixed to take place again on 21st June, 1984. The Petitioner then filed a petition to stay the execution and that petition was allowed by this Court. The prayer of the Petitioner in this writ petition is that since he has experienced living death for years, and after all the agony and torment which he has been subjected to it is just and fair that the sentence of death be commuted. The learned Counsel for the Petitioner also relied on the conduct of the prisoner during his long period in jail as suggestive of his realisation of the right way of living and a change in himself raising hope of his true good conduct and full rehabilitation, justifying commutation of the death sentence.
The case of the first Respondent is that the delay, if any, was first occasioned by the time necessary for processing the trial and the subsequent appeals, petitions, mercy petition, etc., provided in law and secondly by the dilatory tactics resorted to by the Petitioner in approaching the President again, when his mercy petition provided in law was rejected. It was also urged that the circumstances and the way in which the offence of murder was committed does not justify the commutation prayed for.
The first and foremost point which arises for consideration in this case is whether the delay in execution justifies commutation of sentence. The specter of capital punishment starts haunting the mind of a murderer from the date of commission of the offence, it becomes more and more present at the successive stages of the criminal proceedings like arrest, charge and trial. When the sentence is pronounced an indescribable torment invades the convict, but there is still a ray of hope till the appeals, revision and mercy petition to him are being examined. When that ray varnishes an unbearable situation starts which each human being faces according to his own personality. The encounter with death face to face inflicted upon the convict forms a substantial part of the death sentence. When the agony and torment resulting therefrom is prolonged beyond what is contemplated in law, there is an additional punishment over and above the sentence meted out by the court and over and above the maximum punishment envisaged by law. On no account, by neglect or otherwise, this additional punishment should be allowed to be inflicted upon the convict. A human being for offending the society in an unpardonable manner is sacrificed at the altar of justice, but such sacrifice should be untainted, otherwise it is repugnant to justice. This question of prolonged detention awaiting execution was brought before the Supreme Court only quite recently.
In the first decision in the case T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 S.C. 361 : 1983 L.W. (Crl.)(S.C.) 61 (S.N.) the Petitioner therein was the principal accused in the case, he was the brain behind a cruel conspiracy to impersonate Customs officers, pretend to question unsuspecting visitors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims, steal their cash and jewels and finally murder them. In the above case, after reviewing the judicial attitude towards delay in the execution and the constitutional implications of the dehumanising factor of prolonged delay in the execution, the Court held as follows:
So, what do we have now? Articles 14, 19 and 21 are not mutually exclusive. They sustain, strengthen and nourish each other. They are available to prisoners as well as free men. Prison walls do not keep out Fundamental Rights. A person under sentence of death may also claim Fundamental Rights. The fiat of Article 21, as explained is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a person to a speedy trial. 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. That is as far as we have gone so far. It seems to us but a short step, but a step in the right direction, to hold that prolonged 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 to death.
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.
In the subsequent decision in Sher Singh and Others Vs. State of Punjab, , a larger Bench of the Supreme Court found that it would not be possible and wise to apply entirely the principles of the earlier ruling in all circumstances. It confirmed the earlier view regarding the legality and desirability of commuting the death sentence unduly prolonged, but decided that the delay in execution exceeding two years would not by itself be sufficient for commutation. Some of the lines in that judgment are extracted below:
A prisoner who has experienced living death for years on end is therefore entitled to invoke the jurisdiction of this Court for examining the question whether after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed. That is the true implication of Article 21 of the Constitution and to that extent, we express our broad and respectful agreement with our learned Brethren in their visualisation of the meaning of that article....
We must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons which 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, according to us, no hard and fast rule can be laid down as our learned Brethren have done that ''delay exceeding two years in the execution of a sentence of a 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''....
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 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... 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... 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... Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it. its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.
The above decision provides clearly the guidelines for the purpose of commutation. But, for applying properly the principles embodied in the last paragraph it is necessary to be aware of the change in the judicial attitude regarding the cases in which the death sentence would be and should be meted out. When an individual kills another, the primary reaction of the relatives and friends of the killed person is to take revenge by killing the murderer. The State after putting an end to such reprisals, for obvious reasons, has attributed to itself the role of revenge, but decides that it should be performed according to certain rules and regulations in order to ensure fairness and to avoid errors and excesses. But the attitude of the society was fundamentally the same as that of the kins. This is expressed by Salmond in his Classical Book of Jurisprudence as follows:
We hang murderers not merely that we put into the hearts of others like them the fear of a like fate, but for the same reason for which we kill snakes, viz., because it is better for us that they should be out of the world than in it.
But, from the time of Salmond, humanity has made great strides towards a more civilised attitude. As far as India is concerned, our endeavour has been traditionally to refrain from killing snakes as well.
It is felt now that the society cannot equate itself to an individual and apply lex talionis. It is below its dignity to stoop to indulging in reprisal. The charge was reflected for the first time in the legislative field in India by the modification of the relevant provisions in the Code of Criminal Procedure.
The relevant provision in the Code of 1898 was as follows:
367(5) : If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall, in its judgment, state the reason why sentence of death was not passed.
The new Code of Criminal Procedure, 1973, had adopted a diametrically opposite position and the relevant section runs thus:
354(3) : When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of ten years, the judgment shall state the reason for the sentence awarded, and. in the case of sentence of death, the special reason for such sentence;
(Emphasis supplied)
Applying the above principles to the present day circumstances, the Supreme Court in Bachan Singh Vs. State of Punjab, after holding that the provision of death penalty as an alternative punishment for murder was not violative of Article 19 concluded as follows:
It is, therefore, imperative to voice the concern that courts, aided by the broad [illustrative guidelines indicated, will discharge the onerous function with ever more scrupulous care and human concern, directed along the highroad of legislated policy outlined in Section 354(3), 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 postulated 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.
The Supreme Court has applied the above principle in several cases upholding the sentence of death only in extreme cases and rejecting it in all others.
In a more recent case, viz, Machhi Singh and Others Vs. State of Punjab, the Supreme Court has again framed some guidelines in the matter of death sentence. They are found in Paragraphs 33, 34 and 35 of the judgment and they are extracted below:
33(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the ''offender'' also require to be taken into consideration along with the circumstances of the
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
(iv) A balance-sheet of aggravating and mitigating circumstances has to be brawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In order to apply these guidelines inter alia the following questions may be asked and answered;
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence 7.
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed herein above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
With the guidelines so provided by the Supreme Court, we are able to understand what exactly now is the place of death sentence in our society. In fact, the society cannot forget that it is also partly responsible for the murder by its failure and mistakes in the educative process, by the hurdles now existing for the happy insertion in life and by the imperfections of law and the delay and lack of efficiency in solving problems and disputes. The society, therefore, should become conscious of its wholeness and consider itself as a living organism of which the murderer is also a part. Private individuals may have very strong feelings directed against the murderer, but the social body cannot afford to act with animosity against one of its own part. Death sentence would amount for the social body what the surgical amputation represents for a human body. It should be accepted if it cannot be avoided for the survival or the well-being of the rest of the organism. If after mature deliberation on the pros and cons such a course is inescapable, the decision will be taken with sorrow at heart, but without fail. The role of the sentencing Judge is, therefore, to act as the enlightened conscience of the social organism in the above process.
With the above principles in mind, we shall now turn to the circumstances of the case. The Petitioner decapitated two persons successively, one of whom is his own maternal uncle. The learned Public Prosecutor drew our attention to the above circumstance. In fact, all his efforts were to draw our attention to the dastardly acts perpetrated by the Petitioner without any immediate provocation and to contend that in this case the sentence of death was confirmed by this Court and the SLP was dismissed by the Supreme Court. But we wonder whether the decisions of the Courts would be the same, if they are to be taken in the present day''s circumstances, especially after the ruling of the Supreme Court in Bachan Singh Vs. State of Punjab, referred to above. At any rate, this is not a case where we have to consider what is the sentence to be meted out but this is a case in which the question is whether the sentence of death already meted out should be commuted in view of the delay in execution. For that purpose the gravity of the offence would be one of the factors not to be lost sight of, but not a predominant one. Along with the gravity of the offence one has also to take into account the circumstances of the offender. The Petitioner was a peaceful farmer having sufficient means of livelihood and was not convicted earlier. He indulged in the murder on account of a dispute in respect of a ridge separating the lands and some other quarrels which arose on account of the misunderstandings between the parties. One such quarrel consisted in the obstruction to the removal of the charcoal by a third party with the help of a cart of the Petitioner and in the unloading of the charcoal. The Petitioner is aged 38 years, his wife is aged 33 years and they are blessed with three children. We have called for report from the Superintendent of the Central Prison, Palayamkottai, where the Petitioner is incarcerated and the opinion of the Superintendent is to the effect that he has been throughout very good and that he did not come for any adverse notice. We have also received a joint petition signed by almost all the inmates of the Palayamkottai Central Prison numbering about 570 prisoners, in short every one who had been in intimate contact with the Petitioner during the entire period of his incarceration, certifying his exemplary conduct throughout the period in jail and pleading for commuting his death sentence. Rehabilitation, if real or can honestly be expected, could be a ground for commutation of death sentence. Otherwise, as observed by Louis Nizer in his book "The Jury Returns" (1967 Edition):
It reduced punishment to mere vengeance, or warning for the future. It ignored, no worse than that, it rejected what seemed to me to be the only conscionable ground for ever inflicting pain the hope of reform and redemption. Had we not in the twentieth century emerged from the darkness of death by retaliation? Was there no higher purpose for the brutalizing exaction of ending life, than we had sated ourselves with revenge? Where rehabilitation has occurred, the total objective of punishment, it seemed to me, had been achieved.
We feel that the Petitioner is not likely to repeat his earlier mistake and the objective of punishment has been achieved to a great extent.
Yet another circumstance peculiar to this case which the learned Counsel for the Petitioner pointed out is that the Petitioner is undisputedly a descendant of Kattabomman whose name scintillates in the pantheon of national heroes who sacrificed their lives in the struggle against foreign domination. A doubt may arise whether, in matters so important as life itself any distinction may be made amid individuals on the basis of their ancestry. Equality as a metaphysical concept is pregnant with huge potentialities in bringing about a more and more civilised society, but if taken absolutely it would rather paralyse the evolution of the society. It should be at each moment pressed into service to the extent possible, but it should not stand in the way of some favours which the whole society has the urge to bestow on some person. The society feels as its duty to honour those who have served it in an outstanding manner; and finding that the services of great men could not be paid in full, in terms of honours and material benefits during their life time, the society is inclined to extend its favour to their progeny. Such an impulse of the society is as natural as its quest for equality and there is nothing wrong in giving effect thereto. In the present case, the feeling of the society got its expression through the representation of 38 Members of Parliament belonging to quasi totality of the parties operating in Tamil Nadu including the ruling parties both at the Centre and in the State and who prayed the President to accord mercy to the Petitioner as a descendant of Kattabomman. We can, therefore, take into account the legitimate desire of posthumous tribute to the hero. But we wish to add that in the present case, even independently from this consideration, the Petitioner would be entitled to commutation in view of the other factors in his favour.
Let us now turn to the delay in execution. Here, we have to distinguish two periods; one starting from 8th February, 1977, the date on which the sentence was passed by the Sessions Court, and ending on 22nd August, 1981 the date of rejection of the mercy petition by the President, after which the date of execution was decided to take place on 15th September, 1981; the second period staring on 8th September, 1981, the date on which the telex message was received from the Home Ministry of India staying the execution, and ending on 6th June, 1984 the date on which the President confirmed the earlier order of rejection, after which execution was decided to take place on 21st June, 1984. As far as the first period is concerned, it is covered by normal proceedings contemplated by law and nothing can be done except to wish that those proceedings are concluded more expeditiously. As far as the second period is concerned, the contention of the learned Public Prosecutor is that it was caused by the frivolous act of the Petitioner giving a second mercy petition to the President of India. The case of the Petitioner on the contrary is that he was not responsible for the stay order passed on 8th September, 1981, and that such a slay was, on the contrary, ordered at the instance of the Members of Parliament. Learned Public Prosecutor who took the stand that the Petitioner filed the second petition to postpone the date of execution was unable to substantiate his statement. The alleged second petition was not produced. The clear statement of the Petitioner that the Central Government acted upon the memorandum filed by "he Members of Parliament was not also specifically denied. The basis for the stand of the learned Public Prosecutor is that in two communications among others from the Government of India the subject-matter was noted as ''mercy petition of Gurusami Naicker'' and that no reference was made to the memorandum presented by the Members of Parliament. We are surprised that the learned Public Prosecutor has drawn this inference without verifying the factual position from the concerned authorities especially when he had the possibility to place all the materials before this Court. But, on the Petitioner''s side, in order to substantiate his case that there is an affidavit filed by Mr. V. Gopalasamy, Member of Parliament (Rajya Sabha) swearing that the order of stay was passed on the memorandum submitted by a large number of Members of Parliament, that the memorandum was submitted by them in their capacity as public servants and not as representatives of the condemned prisoner and that the condemned prisoner was in the no way responsible for any delay that might have been caused due to the operation of stay granted by the Home Ministry. The photo copies of the memorandum presented by Mr. V. Gopalasamy on behalf of 18 Members of Parliament and the subsequent letters have been filed. The memorandum is, dated 6th March, 1981 and was acknowledged by the Secretariat of President on 7th March, 1981; it is therefore, prior to the rejection having taken place on 22nd August, 1981. In that memorandum there is an indication that the mercy petition of Gurusamy Naicker was enclosed. After such rejection Mr. Gopalasamy wrote a personal letter to the Minister of Home Affairs on 31st August, 1981 referring to the memorandum of the members of Parliament dated 6th March, 1981. The stay order was conveyed by the Home Ministry on 8th September, 1981. It is thus abundantly clear that the execution was stayed on the intervention of the Members of Parliament and that the Petitioner was in no responsible for the same.
Even otherwise, the stay is dated 8th September, 1981 and the date of vacation of stay and confirmation of the death sentence is 6th June, 1984. This is undoubtedly an inexplicably long delay; and in fact, learned Public Prosecutor did not put forth any explanation apart from saying that the State Government is in no way responsible for the delay. Such a delay would not have been occasioned if all concerned have been vigilant about the matter. It is worth pointing out that Rule 806 of the Rules for the Superintendence and Management of Prisons in the State of Madras (the Madras Prison and Reformatory Manual, Volume II) enjoins on the Superintendent of the Jail to telegraph to the Secretary to Government, Home Department, if no reply is received within 5 days from the date of despatch of the mercy petition from the jail. Further, the Supreme Court in Sher Singh and Others Vs. State of Punjab, referred to supra has observed as follows:
We must take this opportunity to impress upon the Government of India and the State Government to that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Code of Criminal Procedure must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.
So, it is clear in the present case that independently of any action by the Petitioner an ordeal of 5 years and 9 months was occasioned him after his mercy petition was rejected and he was asked to get ready for execution for the second time.
Yet another circumstance which militates in favour of the Petitioner is the treatment meted out to him during his stay in prison by keeping him isolated from other prisoners. The Supreme Court in Sunil Batra Vs. Delhi Administration and Others etc., has observed that Sub-section (2) of Section 30 of the Prisons Act merely provides for confinement of a prisoner under sentence of death in a cell apart from other prisoners, that such confinement can neither be cellular confinement nor separate confinement and in any event, it cannot be a solitary confinement and that placing the prisoner under sentence of death in confinement would tantamount to imposing upon him additional and separate punishment. It further observed that the prisoner under sentence of death in the context of Sub-section (2) of Section 30 of the Prisons Act can only mean the prisoner whose sentence of death has become final and operative after all the remedies available in law have been exhausted that till then the prisoner who is awarded capital punishment by the Sessions court cannot be said to be a prisoner under sentence of death and that it was not necessary till that stage is reached to keep the prisoner in a cell apart from other prisoners and to place him by day and night under the charge of a guard. In the present case, the Jail Superintendent has stated in his parawise remarks that the Petitioner was kept in a separate cell throughout day and night under warder guard from 8th February, 1977, the date on which he was sentenced to death by the Sessions court, upto 10th April, 1983. He pleaded that he did so according to the Rules found in the Tamil Nadu Prison and Reformatory Manual, Vol. II, and that lodging a condemned prisoner in a separate cell was different from solitary confinement. He further added that after the pronouncement of the judgment by the Supreme Court in Sunil Batra''s case, (Supra) in W.P. No. 2202 of 1977, 1 the Petitioner was treated as any other ''B'' class prisoner by removing him from the separate cell, as instructed by the Inspector General of Prisons. It is thus evident that for a period of six years the Petitioner was in cellular confinement, which has been aggravating his torment and which is a punishment inflicted in addition to the one meted out by the Court.
To sum up, taking into account the gravity of the offence, the educational background of the Petitioner, his conduct prior and after the offence, the long delay in execution not attributable to the Petitioner and the extra punishment of cellular confinement to which he was subjected for a long period, we are fully satisfied that this is a fit case in which the death sentence should be commuted.
We, therefore, allow the writ petition, quash the sentence of death and substitute the sentence of imprisonment for life in its stead.