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PETITIONER: JUMMAN KHAN

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT30/11/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1991 AIR  345            1990 SCR  Supl. (3) 398  1991 SCC  (1) 752        JT 1991 (1)    31  1990 SCALE  (2)1167  CITATOR INFO :  D          1992 SC2100  (56)

ACT:     Indian  Penal  Code,  1860:  Section  302--Murder--Death sentence Constitutional validity of.     Criminal  Procedure  Code, 1973:  Sections  235(2)--Sen- tence-Pre-decisional     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 punish- ment-Constitutional validity of.     Practice  &  Procedure: New  plea--raising  of--For  the first time-Permissibility of.

HEADNOTE:     The  petitioner was charged with rape and murder of  his neighbour’s  six year old daughter. As per  the  post-mortem report,  the victim was brutually raped and strangulated  to death.  The  Trial Court found the petitioner  guilty  under both the charges and sentenced him to undergo life imprison- ment  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  peti- tioner freed a special leave petition which was dismissed by this Court. Thereafter he presented a mercy petition and the Governor  rejected the same. The petitioner fried  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.  Subsequent  mercy petition to the President also met the same fate. 399     In  the present writ petition, the petitioner  contended that there was substantial non-compliance with the mandatory provisions of Section 235(2) of the Code of Criminal  Proce- dure  of 1973, vitiating the imposition of the  sentence  of

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death;  that the constitutional validity of capital  punish- ment  upheld by this Court in Bachan Singh’s case  [1980]  2 SCC  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 taking into account all subsequent  deci- sions 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 commu- tation  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, normal- ly  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 final- ï7 3 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  confirma- tion  of this sentence by this Court. This is based  on  the principle  that sentence of death is something and the  sen- tence  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 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, referred to.     2.  Death sentence is constitutionally valid. The  deci- sion  in  Bachan  Singh’s  case  needs  no  reconsideration. [405E-F] Bachan Singh v. State of Punjab, [1980] 2 SCC 684, affirmed. 400     Sher Singh v. State of Punjab, [1983] 2 SCC 344;  Allau- din Mian v. State of Bihar, [1989] 3 SCC 5 and Triveniben v. State of Gujarat, [1989] 1 SCC 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 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 in its true spirit. [404D]     3.2 In the instant case, the plea that Section 235(2) of the Criminal Procedure Code was not complied with, has  been raised for the first time. Since the Trial Court had 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] 1 SCR  229;  Mu- niappan v. State of Tamil Nadu, [1981] 3 SCR 270 and  Allau- din 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 ï7 3     Kehar  Singh and Another v. Union of India and  Another, [1989] 1 SCC 204, referred to.

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JUDGMENT: