Jagdish v. State of M.P. , (SC) BS203175
SUPREME COURT OF INDIA

Before:- Harjit Singh Bedi and J.M. Panchal, JJ.

Criminal Appeal No. 338 of 2007. D/d. 18.9.2009.

Jagdish - Appellant

Versus

State of M.P. - Respondent

For the Appellant :- Mr. Sudhir Kulshreshtha, Advocate.

For the Respondent :- Mr. C.D. Singh, Advocate.

IMPORTANT

Death sentence awarded, but delay in execution - There can be no justification for execution of prisoner after much delay - It is open to prisoner to contend that the death sentence should be commuted to one of life.

IMPORTANT

Prisoners awarded death sentence - 26 Mercy petitions pending before President - Agony of horror of condemned prisoners explained.

A. Constitution of India, Articles 161 and 72 - Constitution of India, Article 21 - Indian Penal Code, Section 302 - Criminal Procedure Code, Section 366 - Death sentence - Delay in actual infliction of death - It is open to condemned prisoner and his relatives to contend that the death sentence should be commuted to one of life - In the instant case, accused was sentenced to death by Session Court for murder his wife and 5 children - His appeal came up for hearing before Supreme Court after 3 years - Request for commutation of death sentence to life imprisonment rejected - Murders were horrifying - Victims were wife and minor children - Moreover in the facts of case there was no delay.

[Paras 10, 13 and 16]

B. Constitution of India, Article 21 - Indian Penal Code, Section 302 - Criminal Procedure Code, Section 366 - Death sentence awarded, but delay in actual infliction of death - Effect of delay explained - Death sentence has two underlying philosophies -

The delay has the effect of obliterating both the above factors - There can be no justification for execution of prisoner after much delay - 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". 408 U.S. 238 relied.

[Paras 12 and 13]

C. Constitution of India, Articles 72 and 161 - Mercy Petition - Death sentence - 26 mercy petitions are pending before President - Agony and horror of condemned prisoners explained - It was observed by Supreme Court :-

[Paras 13, 14 and 15]

D. Indian Penal Code, Section 302 - Criminal Procedure Code, Section 366 - Murder - Death sentence - Accused committing murder of his wife and 5 minor children (aged 1 to 16 years) using a knife - Awarded rightly awarded death sentence - Held - 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. 2006(1) Apex Criminal 245 (SC) relied.

[Para 10]

E. Indian Penal Code, Section 302 - Criminal Procedure Code, Section 366 - Accused committing murder of his wife and 5 minor children - Death sentence awarded by Sessions Judge - Lapse of 3 years between awarding of death sentence and hearing of appeal by Supreme Court - It was urged that delay in execution of death sentence was itself a dehumanizing and an unreasonable procedure, the death sentence ought to be converted to one for life - Contention rejected - Held - No hard and fast rules can be laid down with respect to the delay which could result as a mitigating circumstance, and each case must depend on its own facts - In this case there was no delay in facts of case. 1983(1) RCR (Civil) 242 (SC), (1978) 1 SCC 214 Distt., 1983(1) RCR (Criminal) 274 (SC) relied.

[Para 11]

F. Criminal Procedure Code, Section 366 - Indian Penal Code, Section 302 - Indian Penal Code, Section 84 - Unsound mind - Accused brutally murdered his wife and 5 minor children (aged 1 to 16 years) - Accused convicted and sentenced to death by Husband - No plea of unsoundness of mind was raised before trial Court or High Court - Supreme Court of its own examined question of unsoundness of mind as it was felt that only a 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 - However, no medical evidence was brought on record evidence was brought on record that accused was of unsound mind - Death sentence upheld.

[Para 7]

G. Indian Penal Code, Section 302 - Criminal Procedure Code, Section 366 - Murder - Awarding of Death Sentence - Broad principles culled out by Supreme Court -

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. 2006(1) Apex Criminal 245 (SC) relied.

[Para 9]

H. Indian Penal Code, Section 302 - Indian Penal Code, Section 84 - Unsound mind - Murder committed by accused - Defense version that accused was a person of unsound mind within meaning of Section 84 Indian Penal Code - Held 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.

[Para 7]

Cases Referred :-

Mohan Singh v. State of Delhi, AIR 1977 Supreme Court 949.

Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 Supreme Court 916.

Bachan Singh v. State of Punjab, AIR 1980 Supreme Court 898.

Mahesh v. State of M.P., AIR 1987 Supreme Court 1346.

Darshan Singh v. State of Punjab, AIR 1988 Supreme Court 747.

Dhananjay Chatterji v. State of West Bengal, 1994(1) RCR (Criminal) 429 : 1994(1) JT 33 SC.

Nirmal Singh v. State of Haryana, 1999(2) RCR (Criminal) 256 .

Nathu Garam v. State of Uttar Pradesh, AIR 1979 Supreme Court 716.

Ravji v. State of Rajasthan, 1996(2) SCC 175.

Umashankar Panda v. State of M.P., 1996(1) RCR (Criminal) 759 : 1996(8) SCC 110.

Dayanidhi Bisoi v. State of Orissa, 2003(3) RCR (Criminal) 862 : 2004(1) Apex Criminal 374 : JT 2003(5) SC 590.

State of Rajasthan v. Kheraj Ram, JT 2003(7) SC 419.

Sushil Murmu v. State of Jharkhand, 2004(1) RCR (Criminal) 353 : 2004(2) Apex Criminal 224 : JT 2003(10) SC 340.

Union of India v. Devendra Nath Rai, 2006(1) Apex Criminal 245 : 2006(2) SCC 243.

Machhi Singh v. State of Punjab, 1984(2) RCR (Criminal) 412 : (1983)3 SCC 470.

Devender Pal Singh v. State of NCT of Delhi, 2002(2) RCR (Criminal) 515 : (2002)5 SCC 234.

T.V. Vatheeswaran v. State of Tamil Nadu, 1983(1) RCR (Criminal) 242 : (1983)2 SCC 68.

Ediga Anamma v. State of Andhra Pradesh (1974)4 SCC 443.

Bhagwan Bux Singh v. State of U.P., (1978)1 SCC 214.

Sadhu Singh v. State of U.P., (1978)4 SCC 428.

Vivian Rodrick v. State of West Bengal, (1971)1 SCC 468.

State of U.P. v. Sahai, (1982)1 SCC 352.

Sher Singh v. State of Punjab, 1983(1) RCR (Criminal) 274 : (1983)2 SCC 344.

Coleman v. Balkcom, 451 U.S. 949, 952

Gregg v. Georgia, 428 U.S. 153 (1976).

Furman v. Georgia 408 U.S. 238.

JUDGMENT

Harjit Singh Bedi, J. - The appellant was convicted under Section 302 of the Indian Penal Code 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.

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 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 Criminal Procedure Code 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 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 v. State of Delhi, AIR 1977 Supreme Court 949, Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 Supreme Court 916, Bachan Singh v. State of Punjab, AIR 1980 Supreme Court 898, Mahesh & Ors. v. State of M.P., AIR 1987 Supreme Court 1346, Darshan Singh v. State of Punjab, AIR 1988 Supreme Court 747, Dhananjay Chatterji v. State of West Bengal, 1994(1) RCR (Criminal) 429 : 1994(1) JT 33 SC and Nirmal Singh v. State of Haryana, 1999(2) RCR (Criminal) 256 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 counsel based on the judgment of this Court in Nathu Garam v. State of Uttar Pradesh, AIR 1979 Supreme Court 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 Criminal Procedure Code 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 v. State of Rajasthan, 1996(2) SCC 175, Umashankar Panda v. State of M.P., 1996(1) RCR (Criminal) 759 : 1996(8) SCC 110, Dayanidhi Bisoi v. State of Orissa, 2003(3) RCR (Criminal) 862 : 2004(1) Apex Criminal 374 : JT 2003(5) SC 590, State of Rajasthan v. Kheraj Ram, JT 2003(7) SC 419, Sushil Murmu v. State of Jharkhand, 2004(1) RCR (Criminal) 353 : 2004(2) Apex Criminal 224 : JT 2003(10) SC 340 and Union of India & Ors. v. Devendra Nath Rai, 2006(1) Apex Criminal 245 : 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 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 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 Indian Penal Code. 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 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 Indian Penal Code. Section 84 reads as under :

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 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.

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 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 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 clichi 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 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-a-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 v. 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 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 :

In Devendra Nath Rai's case (supra) this Court after examining Bachan Singh v. State of Punjab, (1980)2 SCC 684, Machhi Singh v. State of Punjab, 1984(2) RCR (Criminal) 412 : (1983)3 SCC 470 and Devender Pal Singh v. State of NCT of Delhi, 2002(2) RCR (Criminal) 515 : (2002)5 SCC 234 culled out the broad principles with regard to the infliction of the death penalty in the following terms :

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 v. State of Maharashtra (2009) 6 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 v. State of Tamil Nadu, 1983(1) RCR (Criminal) 242 : (1983)2 SCC 68 and Ediga Anamma v. 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. v. 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 v. 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 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 v. The State of West Bengal, (1971)1 SCC 468 and this is what the Court had to say :

Likewise in State of U.P. v. Sahai & Ors., (1982)1 SCC 352 which pertained to a murder of four persons in a particular ghastly manner, it observed as under :

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 v. State of Punjab, 1983(1) RCR (Criminal) 274 : (1983)2 SCC 344, this 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 :

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 :

The Court concluded with the following significant observations :

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 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 v. 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 :

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 emphasised that the death sentence has two underlying philosophies;

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 "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 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 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 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 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.

Appeal dismissed.