REPORTABLE

IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 338 OF 2007

Jagdish           …..Appellant

Versus

State of M.P.          ...Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

1. The appellant was convicted under Section 302 of the IPC  

for having murdered his wife, four minor daughters and a  

minor son all  between 1 and 16 years of  age and was  

sentenced  to  death  by  the  Additional  Sessions  Judge,  

Manasa  by  judgment  dated  24th April,  2006.    On an  

appeal and reference to the High Court,  the conviction  

and sentence has been maintained leading to the present  

appeal.  The prosecution story is as follows:

2. At  about  mid  night  of  the  19th August,  2005  PW1  

Ramprasad,  the  brother  of  the  appellant,  on  being  

informed by PW-4 Balchand that he had heard a huge  

commotion from the appellant’s house, rushed that side  

and looking through the window saw the appellant sitting  

in the room with a bloodstained knife in his hand and his  

clothes soiled in blood and the dead bodies of his wife  

Amribai, and daughters Karibai, Vidhyabai, Rajubai and  

Rachna aged 16 years,  12 years,  8  years and 6 years  

respectively  and  his  son  Dilkhush  aged  1  year  lying  

besides him.  Ramprasad asked the appellant as to what  

he  had  done  but  he  threatened  him  with  dire  

consequences  and told  him that  he  would kill  him as  

well.   Ramprasad  thereupon  retreated  and  raised  an  

alarm which attracted the occupants of the neighbouring  

houses,  and also  locked the room from the outside  to  

prevent the appellant’s escape.  He also rushed to Police  

Station, Manasa accompanied by Sarpanch Devilal (PW3)  

and recorded the F.I.R..  He then returned to the village  

with a police  party,  headed by PW15 SI  Karulal  Patel.  

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The  appellant  was  arrested  on  the  spot  and  on  

interrogation a bloodstained pajama and knife hidden in  

a  quilt  were  seized.   On  the  completion  of  the  

investigation,  he  was brought  to trial  on six  counts of  

murders.  He pleaded innocence and claimed trial.  The  

trial  court  observed  that  the  case  rested  almost  

exclusively on circumstantial evidence and then went on  

to examine the various circumstances.  The court found  

that  the  evidence  of  PW1  Ramprasad  that  the  dead  

bodies  were  lying  in  the  room  was  supported  by  the  

evidence of PW3 Devilal,  PW11 Vinod as also PW15 SI  

Karulal.   The  court  also  observed  that  the  medical  

evidence of PW-8 Dr.  R.K. Joshi and PW-9 Dr.  Dinesh  

Bansal,  who,  between themselves,  had carried  out  the  

post-mortem  examinations  on  the  dead  bodies  to  the  

effect that the murders had been committed with a knife  

and  that  the  knife  which  had  been  recovered  at  the  

instance of the appellant from inside the room could be  

the  murder  weapon,  corroborated  the  ocular  account.  

The  court  further  held  that  though  in  a  case  of  

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circumstantial evidence motive was of great significance,  

it  could  not  be  said  as  a  matter  of  principle  that  the  

absence  of  motive  would  render  the  prosecution  story  

weak and in the light of the fact that the murders had  

been committed  in  the  family  home which  was  locked  

from the  inside,  with  no  other  person  present  at  that  

time, it was to some extent obligatory on the appellant to  

have  given  some explanation  as  to  the  murders.   The  

court  then  observed  that  the  explanation  in  the  

statement  under  Section  313  of  the  Cr.P.C.  was  

unacceptable as it had been simply pleaded that he had  

been sleeping in the room and had woken up on hearing  

a noise outside and the police had entered the room and  

caught hold of him and had immediately arrested him.  

The  appellant  also  undertook  to  produce  evidence  in  

defence,  but  ultimately  did  not  do  so.   PW-1  Ram  

Prasad’s statement at the trial that some thief had been  

present in the room on the date and time in question was  

rejected,  as  being  an  after  thought  as  he  was  the  

appellant’s brother, and was making a belated attempt to  

Criminal Appeal  No.338/2007 4

save him.  The court finally found that the extra judicial  

confession made before Ramprasad PW1 and Devilal PW3  

and the fact that he had been arrested from the spot,  

clearly  proved  his  involvement.   On  a  cumulative  

assessment  of  the  circumstances,  the  Court  concluded  

that the appellant was involved in the multiple murders.  

The question as to the sentence to be imposed was then  

examined in depth and relying on various judgments of  

this Court and in particular on Mohan Singh vs. State of  

Delhi  AIR  1977  SC 949,  Rajendra  Prasad  vs.  State  of  

Uttar Pradesh AIR 1979 SC 916, Bachan Singh vs. State  

of Punjab AIR 1980 SC 898,        Mahesh & Ors. Vs.  

State of M.P. AIR 1987 SC 1346,    Darshan Singh vs.  

State of Punjab AIR 1988 SC 747,  Dhananjay Chatterji  

vs.  State  of  West  Bengal  1994  JT  33  SC,  and  Nirmal  

Singh vs. State of Haryana AIR 1999 SC 1221 held that  

the  offence  which  the  appellant  had  committed  was  

reprehensible  and  truly  diabolical  and  that  the  only  

sentence appropriate  to the gravity of  the crime was a  

sentence of death.  The plea on behalf of the appellant’s  

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counsel based on the judgment of this Court in  Nathu  

Garam vs. State of Uttar Pradesh AIR 1979 SC 716 that a  

conviction based on circumstantial evidence should not  

ordinarily  invite  a  death  penalty,  was  rejected.   A  

Reference was thereafter made by the Sessions Judge to  

the  High  Court  as  postulated  by  Section  366  of  the  

Cr.P.C. and the accused too challenged the judgment in  

appeal.  The High Court first examined the appeal and  

concluded that  the evidence against  the  appellant  was  

conclusive as to his involvement and though there was  

no  apparent  motive,  the  other  circumstances  were  

sufficient to bring home the charge.  The merits of the  

murder  reference  were  then  examined  and  after  days  

consideration it was held that the matter fell within the  

category of  the rarest  of  rare cases and relying on the  

judgments of this Court in  Ravji vs. State of Rajasthan  

1996(2) SCC 175, Umashankar Panda vs. State of M.P.  

1996 (8) SCC 110,  Dayanidhi Bisoi vs. State of Orissa JT  

2003 (5) SC 590, State of Rajasthan vs. Kheraj Ram   JT  

2003(7) SC 419, Sushil Mumu vs. State of Jharkhand JT  

Criminal Appeal  No.338/2007 6

2003(10)  SC  340,  and  Union  of  India  &  Ors.  Vs.  

Devendra Nath Rai 2006 (2) SCC 243  observed that as  

the  murders  were  particularly  foul,  vile  and senseless,  

the death penalty was the only appropriate sentence in  

such a situation.  The High Court, accordingly, dismissed  

the appeal and confirmed the Reference.  The matter is  

before us by way of special leave in this backdrop.

3. This  Special  Leave  Petition  first  came  up  before  this  

Court on the 1st September, 2006 and was adjourned to  

call for the records.  On 25th September, 2006, when the  

case was again taken up, it appears that an argument  

was raised  that  the  appellant  had been suffering from  

some mental ailment at the time of the murders and the  

counsel  sought  time  to  go  through  some  documents  

pertaining to his treatment.  On 8th January, 2007, this  

Court made an order that the counsel should find out, if  

possible,  the  date  and place  where  the  petitioner  may  

have been treated.  On 12th February, 2007, the counsel  

made a statement that the appellant’s  family members  

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had been able to collect some documents which would be  

received by him shortly.  On 12th March, 2007 leave was  

granted,  limited  however,  to  the  question  of  sentence  

only.  During the pendency of this appeal,  and on the  

direction of this Court, yet another enquiry was made to  

find out if the appellant had any mental disorder and had  

been  undergoing  any  treatment  to  this  effect.  

Consequent to the enquiry, a report has been tendered to  

this  Court  supported  by  an  affidavit  of  Shri  Vineet  

Kumar,  Additional  Superintendent  of  Police,  District  

Neemuch, Madhya Pradesh to the effect that no medical  

record  which  could  establish  that  the  appellant  had  

undergone  treatment  for  a  mental  or  psychological  

problem had  been  found  but  statements  of  his  family  

members  and  others  including  Mohan  Lal,  his  elder  

brother and his parents Mohan Lal and Sita Devi and the  

Secretary of the Gram Panchayat, Achalpur which were  

to  the  effect  that  the  appellant  had  been  addicted  to  

drugs, particularly to Ganja, and had become mentally  

disturbed and had been under treatment, and it was on  

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account  of  this  mental  illness  that  he  had  killed  his  

family, had been received, were being put on record.   

4. Relying on these statements, the learned counsel for the  

appellant has pointed out that as the appellant appeared  

to be of unsound mind and incapable of understanding  

the nature of his actions he was absolved of any liability  

under  Section  84  of  the  IPC.   On merits,  it  has  been  

urged that in the light of the fact that there was no eye  

witness to the incident, the mere circumstance that the  

murders  had  happened  in  the  family  home,  was  

insufficient to prove the case beyond reasonable doubt,  

and reliance has finally been placed on Nathu Ram’s case  

(supra)  to  contend  that  a  sentence  of  death  based  on  

circumstantial evidence was a risky proposition, and was  

thus not called for.

5. We have heard the learned counsel for the parties and  

gone  through  the  record  very  carefully.   The  sheer  

enormity  of  the  crime,  the  diabolical  manner  of  the  

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murders,  and  the  feeling  of  abhorrence  which  would  

undoubtedly  be  raised  in  the  mind  of  the  court,  are  

factors which have persuaded us to examine the entire  

story with even greater care and notwithstanding that a  

notice limited to the question of sentence only had been  

issued, we have, in the backdrop of the new issue that  

has been raised, and the horrific  consequences for the  

appellant,  permitted  his  counsel  to  argue  the  entire  

appeal.

6. We first examine the argument of the appellant’s counsel  

based on Section 84 of the I.P.C..  Section 84 reads as  

under:

“Act of a person of unsound mind. – Nothing is an  offence which is done by a person who, at the time  of doing it,  by reason of unsoundness of mind, is  incapable of knowing the nature of the act, or that  he is doing what is either wrong or contrary to law.”

7. The benefit of this provision is available to a person who  

at  the  time  when  the  act  was  done  was  incapable  of  

knowing the nature of his act or that what he was doing  

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10

was wrong or contrary to law.  The implication of this  

provision  is  that  the  offender  must  be  of  this  mental  

condition at the time when the act was committed and  

the fact that he was of unsound mind earlier or later are  

relevant  only  to  the  extent  that  they,  alongwith  other  

evidence,  may  be  circumstances  in  determining  the  

mental condition of an accused on the day of incident.  

We  have  gone  through  the  status  report  filed  by  Shri  

V.K.Jain, Additional S.P. and find it based exclusively on  

the  statements  made  by  close  family  members  of  the  

appellant.  It is significant that before the trial court as  

well as in appeal in the High Court, no plea with regard  

to the appellant’s mental condition had been taken and it  

was only in this Court at the SLP stage when, shaken by  

the sheer brutality of the crime, this Court perhaps felt  

that only a person of unsound mind could commit such a  

horrendous crime, and it had thus been thought prudent  

to have the matter re-examined.  We are of the opinion  

however, that the statements in the status report and the  

affidavit do not advance the appellant’s case whatsoever.  

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8. We  find  that  the  case  against  the  appellant  has  been  

proved by the evidence of PW1 Ramprasad, his brother,  

PW3 Devilal and PW11 Vinod his neighbours, who had all  

seen the dead bodies with the appellant  sitting  beside  

them armed with a knife and he had in fact threatened  

that anyone else interfering would meet the same fate.  It  

is also significant that Ramprasad had locked the door  

from the outside and it  was in that condition that the  

appellant  had  been  arrested  by  SI  Karulal  and  his  

bloodstained clothes and knife had been recovered.  It is  

true that in a case of circumstantial evidence motive does  

have extreme significance but to say that in the absence  

of  motive,  the  conviction  based  on  circumstantial  

evidence cannot, in principle, be made is not correct.  It  

bears  repetition  that  the  appellant  and  the  deceased  

family members were the only occupants of the room and  

it  was  therefore  incumbent  on  the  appellant  to  have  

tendered  some  explanation  in  order  to  avoid  any  

suspicion  as  to  his  guilt.   The  story  that  a  thief  was  

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present  in  the  room introduced  by  Ramprasad  at  the  

stage of the trial was doubtless an attempt to help the  

appellant  who was  his  brother.   The  medical  evidence  

also supports the prosecution story in its entirety.  The  

two  doctors,  R.K.Joshi  and  Dinesh  Bansal  who  had  

conducted  the  post-mortem  examination  on  the  dead  

bodies,  concluded  that  the  knife  recovered  at  the  

instance of the appellant could have been used to commit  

the  murders.   There  is  another  extremely  relevant  

circumstance  pointing  towards  the  appellant’s  

involvement.  The appellant, after arrest, was found with  

injuries on his person and was subjected to a medical  

examination by PW5 Dr. K.C.Kothari. The doctor reported  

six superficial incised injuries on his person, some on the  

neck and the others on the fingers, and opined that they  

could  all  be  self  suffered.   This  statement  was further  

corroborated by the unrebutted testimony of PW3 Devi  

Lal  who testified  that  the  appellant  had told  him that  

after  killing  his  family  he  had  attempted  to  commit  

suicide.  All the factors referred to above are undoubtedly  

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circumstances, but they are so evidently categoric, that  

they  constitute  a  chain  even  stronger  than  an  eye-

witness account, and do remind us of the cliché that men  

often lie, circumstances do not.  We are, therefore, of the  

opinion that the conviction of the appellant on the charge  

of multiple murders is fully justified.

9. The  crucial  question,  and  the  question  on  which  the  

learned counsel for the appellant has argued with some  

emphasis,  is  the  question  of  sentence.   It  has  been  

submitted  that  the  death  sentence  in  a  case  of  

circumstantial evidence was not called for and as there  

appeared to be some evidence that the appellant was of  

unsound mind and the sheer enormity and senselessness  

of  the  killings  also  pointed  in  that  direction,  and also  

indicated that something unusual had happened on that  

day were all  factors  which required consideration.   He  

has  also  submitted  that  as  the  murders  had  been  

committed in the year 2006 and as the death sentence  

had  been  hanging  over  the  appellant’s  head  for  more  

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than  three  years  was  itself  a  punishment,  the  death  

sentence  ought  to  be  commuted  to  life.   He  has  also  

referred us to some of  the judgments  abovementioned.  

The  learned  State  counsel  has  submitted  with  equal  

emphasis that the enormity  of  the  crime,  the brutality  

with which had been executed, the helpless state of the  

victims vis-à-vis the assailant who was a husband and  

father were all factors which brought the matter within  

the category of the rarest of the rare cases.  He too has  

relied on   Ravji vs. State of Rajasthan 1996(2) SCC 175,  

Umashankar  Panda  and  Devendra  Nath  Rai  cases  

(supra).  In Ravji’s  case (supra), which pertained to the  

inexplicable  murder  of  a  wife  and  5  others  (including  

three minor children) this Court, after examining several  

earlier  cases,  observed that  the  killing  of  a  wife  in  an  

advanced stage of  pregnancy and three minor children  

for no reason whatsoever “was one of the most heinous  

crimes”  and  that  the  appellant  being  the  head  of  the  

family had a solemn duty to protect them but he had on  

the contrary “betrayed the trust reposed in him in a very  

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cruel  and  calculated  manner  without  any  provocation  

whatsoever” and that the court “would be failing in its  

duty  in  not  imposing  an  adequate  punishment  for  a  

crime which had been committed  not  only  against  the  

individual victim but also against the society to which the  

criminal and victim belonged,” and that the  “enormity of  

the  crime  requires  that  the  society’s  cry  for  justice  

against such a criminal should be heard.”  Umashankar  

Panda’s case again pertained to the murder of a wife and  

two children and grievous injuries to 3 children during  

an attempt to kill them and it was observed as under:

“We  have  already  given  the  injuries  inflicted on the deceased persons as well  as  on  the  children  who  escaped  death.  We find that the accused had caused in  all 64 sword injuries to all the six persons  including the three deceased persons and  those injuries speak for themselves about  the  gruesome  nature  of  the  crime  committed  by  the  accused.  Be  it  noted  that there was no provocation and there  is nothing to suggest that there was any  quarrel between the accused and his wife  or among any one of the family members.  The way in which the crime was executed  clearly shows that it was a premeditated  one  and  not  on  account  of  sudden  provocation  or  any  “mental  

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derangement”.  The  motive  suggested  in  the  course  of  cross-examination  of  the  prosecution witnesses is also not  helpful  to  the  accused  inasmuch  as  he  has  pleaded  alibi  in  his  statement  (under  Section 313 CrPC) and that has also been  taken note of by the trial court as well as  by  the  High  Court.   As  pointed  out  earlier, both the Sessions Judge and the  High Court have given special reasons for  awarding death sentence and we are also  of the opinion that the crime indulged by  the  accused  is  undoubtedly  gruesome,  cold-blooded,  heinous,  atrocious  and  cruel.  We are  also  satisfied that  on the  facts  established  on  the  record,  there  appears  to  be  no  mitigating  circumstances  whatsoever,  but  only  aggravating  circumstances  which  justify  the  imposition  of  death  sentence.  If  we  look into the manner in which the crime  was  committed,  the  weapon  used,  the  brutality of the crime, number of persons  murdered,  the  helplessness  of  the  victims,  we  cannot  come  to  any  other  conclusion except the one,  the Sessions  Judge and the High Court arrived at  to  award  the  capital  sentence  to  the  appellant.”

In Devendra Nath Rai’s case (supra) this Court after examining  

Bachan Singh vs. State of Punjab (1980) 2 SCC 684, Machhi  

Singh v. State of Punjab (1983) 3 SCC 470 and and Devender  

Pal Singh vs. State of NCT of Delhi (2002) 5 SCC 234 culled  

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out  the  broad principles with regard to the  infliction of  the  

death penalty in the following terms:

“The  community  may  entertain  such  sentiment in the following circumstances:

(1) When the  murder is committed in  an  extremely  brutal,  grotesque,  diabolical,  revolting, or dastardly manner so as to arouse  intense  and  extreme  indignation  of  the  community.

(2) When the murder is committed for  a  motive  which  evinces  total  depravity  and  meanness;  e.g.  murder  by  hired  assassin  for  money  or  reward;  or  cold-blooded  murder  for  gains of a person vis-à-vis whom the murderer  is in a dominating position or in a position of  trust; or murder is committed in the course for  betrayal of the mother land.

(3)  When  murder  of  a  member  of  a  Scheduled Caste or minority community, etc. is  committed  not  for  personal  reasons  but  in  circumstances which arouse social wrath; or in  cases  of  ‘bride  burning’  or  ‘dowry  deaths’  or  when murder is committed in order to remarry  for the sake of extracting dowry once again or to  marry  another  woman  on  account  of  infatuation.

(4)  When  the  crime  is  enormous  in  proportion.  For  instance  when  multiple  murders, say of all or almost all the members of  a  family  or  a  large  number  of  persons  of  a  particular  caste,  community,  or  locality,  are  committed.

(5) When the victim of murder is an  innocent child, or a helpless woman or old or  infirm person or  a  person vis-à-vis  whom the  murderer is in dominating position, or a public  

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figure  generally  loved  and  respected  by  the  community.

If upon taking an overall global view of all  the circumstances in the light of the aforesaid  propositions  and  taking  into  account  the  answers to the questions posed by way of the  test  for  the  rarest  of  rare  cases,  the  circumstances of the case are such that death  sentence is warranted, the court would proceed  to do so.”

These aggravating circumstances have been reiterated in  

Dhananjay Chatterjee’s case (supra).

10. A bare perusal of the aforesaid judgments would bring  

this matter within principles 1, 4 and 5.  We find the case in  

hand  that  the  murders  were  particularly  horrifying,  as  the  

assailant was in a dominant position and a position to trust as  

well as he was the head of the family, the crime was enormous  

in its proportions as the entire family had been done away, the  

hapless victims being the wife and the minor children of the  

assailant, the youngest being the only son, just one year old.  

We have also examined the mitigating circumstances referred  

to  in  Bachan  Singh’s  case  (supra)  and  in  Santosh  Kumar  

Satishbhushan Bariyar vs.  State of  Maharashtra (2009)  6  

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SCC 498.  We find that the balance sheet is heavily weighted  

against the appellant.

11. The appellant’s counsel has also referred to the lapse of  

about three years between the sentence of death awarded by  

the Sessions Judge and the hearing of this appeal and has  

submitted  that  as  a  delay  in  the  execution  of  the  death  

sentence  was  itself  a  dehumanizing  and  an  unreasonable  

procedure, the death sentence ought to be converted to one for  

life.   We  have  examined  this  matter  very  carefully.   In  

T.V.Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68  

and  Ediga Anamma vs. State of Andhra Pradesh (1974) 4  

SCC  443  it  has  been  held  that  a  delay  of  two  years  was  

permissible beyond which the sentence ought to be converted  

to life.   In Bhagwan Bux Singh & Anr. vs.  The State of U.P.  

(1978) 1 SCC 214 similar observations were made with respect  

to a delay of two and a half years and in  Sadhu Singh vs.  

State of U.P. (1978) 4 SCC 428 to a delay of  three and a half  

years.   We find, however, that as per the latest position in  

law, no hard and fast rules can be laid down with respect to  

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the delay which could result as a mitigating circumstance, and  

each case must depend on its  own facts.   We have  in this  

connection gone through the judgment in   Vivian Rodrick vs.  

The State of West Bengal (1971) 1 SCC 468 and this is what  

the Court had to say:

“It  seems  to  us  that  the  extremely  excessive delay in the disposal of the case of the  appellant  would  by  itself  be  sufficient  for  imposing a lesser sentence of imprisonment for  life  under  Section  302.  Section  302,  IPC  prescribes  two  alternate  sentences,  namely,  death  sentence  or  imprisonment  for  life,  and  when  there  has  been  inordinate  delay  in  the  disposal  of  the  appeal  by  the  High  Court  it  seems to us that it is a relevant factor for the  High  Court  to  take  into  consideration  for  imposing the lesser sentence.  In this particular  case, as pointed out above,  the appellant  was  committed to trial by the Presidency Magistrate  as early as July 31, 1963, and he was convicted  by the Trial Judge on September 4, 1964.  It is  now January 1971, and the appellant has been  for  more  than  six  years  under  the  fear  of   sentence of death.  This must have caused him  unimaginable mental  agony. In our opinion, it  would be inhuman to make him suffer till  the  Government  decides  the  matter  on  a  mercy  petition. We consider that this now a fit case for  awarding the sentence of imprisonment for life.  Accordingly, we accept the appeal, set aside the  order  of  the  High  Court  awarding  death  sentence and award a sentence of imprisonment  for  life.  The  sentences  under  Section  148,IPC  and Section 5 of the Explosive Substances Act  

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and  under  Section  302,  IPC,  shall  run  concurrently.”

Likewise in State of U.P. vs. Sahai & Ors. (1982) 1 SCC  

352  which  pertained  to  a  murder  of  four  persons  in  a  

particular ghastly manner, it observed as under  :

“The next question that remains is as  to  the  sentences  to  be  imposed  on  the  respondents. Although the Sessions Judge  had  given  all  the  respondents,  excepting  Sahai,  sentences  of  life  imprisonment  under Section 302 read with Section 149  of the Indian Penal Code, he had passed  the sentence of death on Sahai because he  alone had shot dead three of the deceased  persons.  The  occurrence  took  place  sometime  in  December  1972,  and  more  than  eight  years  have  elapsed since.  The  accused  had  been  convicted  by  the  Sessions  Court  but  acquitted  by the  High  Court.  The  present  appeal  has  been  pending for five years. Having regard to the   reasons given above, therefore, we feel that   although the murders committed  by Sahai   were  extremely  gruesome,  brutal  and  dastardly, yet the  extreme penalty of death   is not called for in the circumstances of this   particular case.”

It is true that in some of the cases referred to above, a  

delay beyond two or three years has been said to be excessive  

but in Sher Singh vs. State of Punjab (1983) 2 SCC 344, this  

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Court while agreeing with the broad proposition with regard to  

the delay in death penalty cases, declined to accept the outer  

time limit of two years for the execution of a death sentence,  

failing which it would be incumbent on the court to commute  

it  to  life  but  at  the  same  time  had  some  very  pertinent  

observations  to  make.   We  reproduce  some of  them herein  

below:

“But we must  hasten to add that this Court  has  not  taken  the  narrow  view  that  the  jurisdiction to interfere with a death sentence  can be exercised only in an appeal against the  judgment  of  conviction  and  sentence.  The  question  which  arises  in  such  appeals  is  whether the extreme penalty provided by law is  called for in the circumstances of the case. The  question which arises in proceedings such as  those before us is whether, even if the death  sentence was the only appropriate sentence to  impose in the case and was therefore imposed.  It  will  be  harsh  and  unjust  to  execute  that  sentence by reason of supervening events. In  very recent times, the sentence of  death has  been commuted to  life  imprisonment  by this  Court in quite a few cases for the reason, inter  alia, that the prisoner was under the spectre of  the sentence of death for an unduly long time  after  the  final  confirmation  of  that  sentence,  consequence  upon  the  dismissal  of  the  prisoner’s  special  leave  petition  or  appeal  by  this Court.”

and further

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“The  prolonged  anguish  of  alternating  hope  and  despair,  the  agony  of  uncertainty,  the  consequences  of  such  suffering  on  the  mental, emotional, and physical integrity and  health  of  the  individual  can  render  the  decision to execute the sentence of death an  inhuman  and  degrading  punishment  in  the  circumstances of a given case.”

“Death sentence is  constitutionally  valid  and permissible within the constraints of the  rule in Bachan Singh. This has 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 after a full debate have  to  be  accepted  without  mental  reservations  until they are set aside.”

The  Bench  also  relied  on  a  sociological  study  

“Condemned to Die, Life Under Sentence of Death” by Robert  

Johnson  which  we  too  have  found  appropriate  to  quote  to  

complete the narrative :

“Death row is barren and uninviting. The  death  row  inmate  must  contend  with  a  segregated environment marked by immobility,  reduced  stimulation,  and  the  prospect  of  harassment by staff. There is also the risk that  visits from loved ones will become increasingly  rate, for the man who is “civilly dead” is often  

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abandoned  by  the  living.  The  condemned  prisoner’s  ordeal  is  usually  a lonely  one and  must  be  met  largely  through  his  own  resources.  The  uncertainties  of  his  case  –  pending  appeals,  unanswered  bids  for  commutation,  possible  changes  in  the  law  –  may  aggravate  adjustment  problems.  A  continuing  and  pressing  concern  is  whether  one  will  join  the  substantial  minority  who  obtain a reprieve or will be counted among the  to-be-dead.  Uncertainty  may  make  the  dilemma  of  the  death  row  inmate   more  complicated  than  simply  choosing  between  maintaining hope or surrendering to despair.  The condemned can afford neither alternative,  but must nurture both a desire to life and an  acceptance of imminent death.  As revealed in  the suffering of terminally ill  patients, this is  an  extremely  difficult  task,  one  in  which  resources  afforded  by  family  or  those  within  the institutional context may prove critical to  the  persons’s  adjustment.  The  death  row  inmate  must  achieve  equilibrium  with  few  coping   supports.  In  the  process,  he  must  somehow maintain his dignity and integrity.

Death  row is  a  prison  within  a  prison,  physically and socially isolated from the prison  community and the outside world. Condemned  prisoners life twenty-three and one-half hours  alone in their cells…..”

The  Court  concluded  with  the  following  significant  

observations  :

“A  prisoner  who  has  experienced  living  death for years on end is therefore entitled to  

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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.  The horizons of  Article  21 are  ever  widening  and  the  final  word  on  its  conspectus  shall  never have been said. So long as life lasts, so  long shall it be the duty and endeavour of this  Court  to  give  to  the  provisions  of  our  Constitution  a  meaning  which  will  prevent  human suffering  and  degradation.  Therefore,  Article 21 is as much relevant at the stage of  execution of the death sentence as it is in the  interregnum  between  the  imposition  of  that  sentence and its execution. The essence of the  matter is  that all  procedure, no matter  what  the  stage, must be fair, just and reasonable.”

The judgments rendered aforesaid have  thrown  model  underlying  philosophy  of  the  aforesaid  judgments  has  already  indicated  above stem out not only from Article 21 of the  Constitution but from the judgments rendered  by the 8th Amendment in the US Constitution  ratifying way back in 1791 which provide that  no  cruel  and  unusual  punishment  shall  be  inflicted.  While construing this provision, the  Court of the Magistrates while observing that  the Eight Amendment does not prohibit capital  punishment  did  indicate  that  as  pending  execution  had  it  dehumanizing  effect  and  lengthy imprisonment  prior  to  execution and  the  judicial  and  administrative  procedures  essential to the due process of law are carried  

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out.   Penologists and medical experts agreed  that  the  process  of  carrying  out  a  verdict  of  death is often so degrading and brutalizing to  the human spirit as to constitute psychological  torture.  Relying on Coleman vs. Balkcom, 451  U.S.  949,  952  (1981)  observed  that  “the  deterrent  value  of  incarceration  during  that  period of uncertainty may well be comparable  to the consequences of the ultimate step itself”  and  when  the  death  penalty  “ceases  realistically  to  further  these  purposes,…..its  imposition  would  then  be  the  pointless  and  needless extinction of  life  with only marginal  contributions  to  any  discernible  social  or  public  purposes.   A  penalty  with  such  negligible  returns  to  the  State  would  be  patently  excessive  and  cruel  and  unusual  punishment  violative  of  the  Eighth  Amendment.”   The  Courts  have,  however,  drawn  a  distinction  whereby  the  accused  himself has been responsible for the delay by  misuse  of  the  judicial  process  but  the  time  taken  by  the  accused  in  pursuing  legal  and  constitutional  remedies  cannot  be  taken  against him.  The Court nevertheless cautious  which we have reproduced as under:

“We must take this opportunity to  impress upon the Government of  India and  the  State  Governments  that  petitions  filed  under Article 72 and 161 of the Constitution  or  under  Sections  432  and  433  of  the  Criminal Procedure Code 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  

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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.  Several  instances can be cited, to which the record of  this  Court  will  bear  testimony,  in  which  petitions  are  pending  before  the  State  Governments  and  the  Government  of  India  for  an  inexplicably  long  period.   The  latest  instance  is  to  be  found  in  Criminal  Writ  Petition Nos. 345-348 of 1983, from which it  would  appear  that  petitions  filed  under  Article  161 of  the  Constitution  are  pending  before the Governor of Jammu & Kashmir for  anything  between  five  to  eight  years.  A  pernicious  impression  seems  to  be  growing  that whatever the courts may decide, one can  always turn to the executive for defeating the  verdict of the court by resorting to delaying  tactics.  Undoubtedly,  the  executive  has  the  power, in appropriate cases, to act under the  aforesaid provisions but,  if  we may remind,  all exercise of power is pre-conditioned by the  duty  to  be  fair  and  quick.  Delay  defeats  justice.”

12. We have also examined the case law on this aspect with  

respect  to  other  jurisdictions.   We  may  refer  to  a  few  such  

decisions.  It has been repeatedly emphasized that the death  

sentence has two underlying philosophies  ;

(1) that it should be retributive, and  (2) it should act as a deterrent

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and as the delay has the effect of obliterating both the above  

factors,  there  can  be  no  justification  for  the  execution  of  a  

prisoner  after  much  delay.   Some  extremely  relevant  

observations  have  been  quoted  above  from  Coleman  v.  

Balkcom, 451 U.S. 949, 952 (1981).   While examining the  

matter in the background of the Eighth Amendment to the U.S.  

Constitution which provides that :

“excessive  bail  should  not  be  required,  nor  excessive  fine  imposed,  nor  cruel  and  unusual punishment inflicted”  

it has observed that though the death penalty was permissible,  

its effect was lost in case of delay (Gregg v. Georgia, 428 U.S.  

153  (1976).  The  Court  also  has  repeatedly  examined  the  

consequences  on  a  prisoner  who  was  under  the  spectre  of  

death  over  a  period  of  time  and  has  emphasised  “when  a  

prisoner  sentenced  by  a  Court  to  death  is  confined  in  the  

penitentiary awaiting the execution of the sentence, one of the  

most  horrible  feelings to  which he can be subjected during  

that time is the uncertainty during the whole of it”.  The U.S.  

Supreme Court  and  other  courts  have  repeatedly  held  that  

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“the  cruelty  of  capital  punishment  lies  not  only  in  the  

execution itself and the pain incident thereto, but also in the  

dehumanizing  effects  of  the  lengthy  imprisonment  prior  to  

execution”    and that    “the  prospect  of  pending execution  

exacts a frightful toll during the inevitable long wait between  

the  imposition  of  sentence  and  the  actual  infliction  of  

death”.(Furman v. Georgia 408 U.S. 238, 288-289 (1972)

13. We are of the opinion that the underlying principles of  

the Eighth Amendment with regard to the infliction of a cruel  

and unusual  punishment  has its  echo in  Article  21 of  our  

Constitution  as  well  and  it  would,  therefore,  be  open  to  a  

condemned prisoner, who has been under a sentence of death  

over a long period of time, for reasons not attributable to him,  

to contend that the death sentence should be commuted to  

one of life.  The power of the President and the Governor to  

grant  pardon  etc.  under  Articles  72  and  161  of  our  

Constitution  though  couched  in  imperative  terms,  has  

nevertheless  to  be  exercised  on  the  advice  of  the  executive  

authority.  In this background, it is the Government which, in  

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effect, exercises that power.  The condemned prisoner and his  

suffering  relatives  have,  therefore,  a  very  pertinent  right  in  

insisting  that  a  decision  in  the  matter  be  taken  within  a  

reasonable time, failing which the power should be exercised  

in  favour  of  the  prisoner.   We,  as  Judges,  remain  largely  

unaware  as  to  the  reasons  that  ultimately  bear  with  the  

Government  in  taking  a  decision  either  in  favour  of  the  

prisoner or against him but whatever the decision it should be  

on sound legal principles related to the facts of the case.  We  

must, however,  say with the greatest emphasis, that human  

beings are not chattels and should not be used as pawns in  

furthering some larger political or government policy.  We may  

hark back to our own experiences in life.  Even a matter as  

mundane or trivial as the impending result of an examination  

or the report of a medical test arising out of suspicion of a  

serious  disease,  or  the  fate  of  a  loved  one  who  has  gone  

missing  or  a  person  hanging  between  life  and  death  on  

account of a severe injury, makes it impossible for a person to  

maintain his equanimity or normal way of life.  Contrast this  

with the plight of a prisoner who has been under a sentence of  

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death for 15 years or more living on hope but engulfed in fear  

as his life hangs in balance and in the hands of those who  

have no personal interest in his case and for whom he is only  

a name.  Equally, consider the plight of the family of such a  

prisoner, his parents, wife and children, brothers and sisters,  

who too remain static and in a state of limbo and are unable  

to get on with life on account of the uncertain fate of a loved  

one.  What makes it worse for the prisoner is the indifference  

and ennui which ultimately  develops in the  family,  brought  

about  by  a  combination  of  resignation,  exhaustion,  and  

despair.   What  may  be  asked is  the  fault  of  these  hapless  

individuals  and  should  they  be  treated  in  such  a  shabby  

manner.  

14. The  observations  reproduced  above  become  extremely  

relevant as of today on account of the pendency of 26 mercy  

petitions before the President of India, in some cases, where  

the  Courts  had  awarded  the  death  sentences  more  than  a  

decade  ago.   We,  too,  take  this  opportunity  to  remind  the  

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concerned  Governments  of  their  obligations  under  the  

aforementioned statutory and Constitutional provisions.  

15. Those of us who have had the occasion to inspect a Jail  

where executions are carried out have first hand knowledge of  

the agony and horror that a condemned prisoner undergoes  

every  day.     The  very  terminology  used  to  identify  such  

prisoners – death row in-mates, or condemned prisoners, with  

their even more explicit translations in the vernacular - tend to  

remind  them  of  their  plight  every  moment  of  the  day.   In  

addition to the solitary confinement and lack of privacy with  

respect to even the daily ablutions, the rattle on the cell door  

heralding  the  arrival  of  the  Jailor  with  the  prospect  as  the  

harbinger of bad news, a condemned prisoner lives a life of  

uncertainty and defeat.  In one particular prison, the horror  

was exacerbated as the gallows could be seen over the wall  

from the  condemned  cells.   The  effect  on  the  prisoners  on  

seeing  this  menacing  structure  each  morning  during  their  

daily exercise in the courtyard, can well be imagined.   To cap  

it  all,  some  of  these  prisoners,  sentenced  to  death  by  the  

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Sessions  Judge  in  a  case  of  multiple  murders,  were  later  

acquitted by the High Court in appeal for lack of evidence.  

16. The facts of the present case; the incident happened on  

the  20th August  2005.   The  Additional  Sessions  Judge  

rendered his judgment on 24th April 2006 and the judgment  

was confirmed by the High Court on 27th June 2006.  This  

matter first came up in this Court on 1st September 2006 and  

was  adjourned  repeatedly  on  the  request  of  the  appellant’s  

counsel so as to find out if some material could be collected to  

substantiate his claim that he was unsound mind and it was  

on  12th March  2007  that  leave  was  granted  limited  to  the  

question of sentence only.  The matter is being disposed of by  

us in September 2009.  We are, therefore, of the opinion that  

there is no delay whatsoever in the aforesaid circumstances.  

The appeal is, accordingly, dismissed.

.…………………….J.                  (Harjit Singh Bedi)

..……………………J.

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        (J.M.Panchal) New Delhi, Dated:  September 18, 2009

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