2007 Pune Gangrape And Murder: Inordinate Delay In Execution Of Death Sentence Unconstitutional Says Bombay HC, Commutes Death To Life [Read Judgment]

A division bench of Justice BP Dharmadhikari and Justice SS Joshi held that there was an inordinate and unreasonable delay in execution of death penalty.

"We find that delay in the present matters could have been easily avoided and the mercy petitions and the final execution could have been dealt with in sense of urgency", the bench observed.

Pradeep Kokade, 30 and Purshottam Borate, 37 sought quashing of death warrants issued against them and challenged the rejection of mercy petition filed before the Governor of Maharashtra and the President of India.

The accused were convicted of raping and murdering the 22-year-old victim and disposing off her body in the outskirts of Pune in 2007. They were scheduled to be executed on June 24, but the High Court stayed the execution pending hearing of their petitions.

Submissions

Dr. Yug Mohit Chaudhary appeared on behalf of the petitioner convicts, he submitted that there was a delay of 1507 days, ie. 4 years 1 months and 6 days between the judgment of Supreme Court in the case dated May 8, 2015, and June 24, 2019 when death sentence was to be executed.

"There is no application of mind by Hon'ble the Governor and Hon'ble the President to their respective mercy petitions. After the judgment of Sessions Court dated 20/3/2012 sentencing them to death, they have continued in solitary confinement and they have thus undergone more than 8 years of solitary confinement. This sentence inflicted upon them is in violation of Article 21 of the Constitution of India. Lastly, it is urged that issuance of death warrant ex-parte without any opportunity to them is bad in law and unsustainable" Chaudhary said.

Dr. Chaudhary pointed out that the Sessions Court judgement holding the accused guilty of offence under section 302, 376(ii)(g), 364 and 404 read with 120-B of IPC was upheld by the High Court on September 25, 2012 while dismissing a Criminal Appeal filed by both the petitioners.

On July 7, 2013, Supreme Court issued notices confined to sentences in Criminal Appeal and on May 8, 2015 said criminal appeal was dismissed and therefore after the said date, the sentence of death ought to have been executed within 90 days. Time taken thereafter is unconstitutional, Chaudhary submitted. He placed heavy reliance on the judgement of the Apex Court in Shatrughan Chauhan & Anr. Vs. Union of India and Ors in support of his arguments.

Advocate General AA Kumbhakoni relied upon the affidavit of Yerwada Central Prison Superintendent Umaji Pawar and stated that the petitioners were not in solitary confinement and there is nothing like Fansi Yard in Yerwada Central Prison. The prisoners not on death roll, are also kept in high security yard where petitioners were kept. He explained that 'Fansi Yard' is antiquated and colonial description of this security yard.

In the said yard, prisoners mix with each other, can play in the courtyard and interact with each other either in courtyard or in corridor or veranda in front of their rooms. The said claim of petitioners that after judgment of Sessions Court, they are undergoing solitary confinement is factually incorrect, the AG asserted.

In his affidavit, Superintendent pointed out that judgment of Sessions Court along with other documents pertaining to the said proceeding before Trial Court were received by him and without making any assessment about relevancy thereof Superintendent swiftly forwarded judgment of Sessions Court to Home Department on January 27, 2016.

Pawar noted that this judgment ought to have accompanied the mercy petitions only. It shows that there is time gap of 4 months & 10 days in the matter. He further stated that because of need to ensure that all documents are forwarded by his office, on February 1, 2016 he requested Talegaon Police to send copy of police diary, short crime history and other material to Home Department of Government of Maharashtra directly. He then said that communication of rejection of mercy petitions was received on April 9, 2016 by him and it was communicated on April 11, 2016 to both the convicts.

Judgement

As per Maharashtra Prison Rules 1963, rule 11(1) states that the Superintendent has to once repeat back to the state government telegrams communicating orders regarding petitions of mercy by way of acknowledgment of their receipt. All such acknowledgments sent by telegram or by express letters are to be addressed to Secretary to Government in Home Department.

The bench noted-

"Concept like telegram or express letters used years ago show the need of utmost speed & hence use of fastest mode of communication then available. Now it has to be E-mail, Fax or Telephone. Not resorting to these devises in digital era would be to deliberately delay the exercise or to derail it. It would be an instance of avoidable delay."

Thereafter, Court examined the exact chronology of events to determine the amount of delay-

"The mercy petition of petitioners sent by the State on April 28, 2016 goes to the President of India only on May 4, 2017. The Hon'ble President has taken the decision upon it on 26/5/2017 and rejected it. This rejection has been communicated to the petitioners on 19/6/2017. The file after rejection is received by the Ministry of Home Affairs on 30/5/2017 and then the decision is communicated to the State Government on 6/6/2017. Respondent no.2 (state) in paragraph 14 and 15 of the affidavit states that this rejection was intimated to the Superintendent on 19/6/2017 who in turn communicated it to the petitioners on the same day. The other part of delay is after this rejection in actual execution of death penalty."

Even if the exercise of the consideration or application of mind is presumed to have commenced on dates on which the respective departments got necessary papers to draft an advisory, still the period spent in making available those documents cannot be seen as the just period. The authorities were aware of the prescribed procedural norms & the importance of time & cannot indulge into avoidable correspondence, the bench observed.

Court accepted the submissions of Dr.Chaudhary and examined the judgement of Apex Court in Shatrughan Chauhan & Anr. Vs. Union of India and Ors. Finally, the bench noted-

"We therefore find the delay in execution of death penalty in the present matters undue, inordinate and unreasonable. Out of this period of 5 years, mercy petitions were pending for about 2 years and for period thereafter no proceedings were pending.

Here we have to consider a convict to be hanged & he is not concerned with the constitutional functionary which has caused delay or contributed to it. When the protection accorded by Article 21 of the Constitution of India is at stake, the Executive, Court of Law or the Governor/President stand at same pedestal.

Shatrughan Chauhan's case (supra) lays down "Long delays in investigation and trial etc." also as one of the norms relevant for commutation. Thus, Delay by any arm of the State would be against his fundamental right. Extra or additional punishment resulting from avoidable delay cannot be legalized because it is on account of undue time taken by the Constitutional Functionary. Such additional punishment is unconstitutional in all circumstances & contingencies. Quantum or period thereof is also not very material. Moreover, the convicts before us have been undergoing solitary confinement also from 20/3/2012."

Qaushing the death warrants issued against the convicts, Court said-

"Taking over all view of the matter we find convicts before us entitled to relief of commutation of their respective death penalties. We, in this situation commute their death sentence to life imprisonment for period of 35 years including the period already put in by them."