MANU/SC/0253/2019

Equivalent Citation: AIR2019SC 1160, 2019 (2) ALD(C rl.) 9 (SC ), 2019C riLJ1801, 2019(1)C rimes205(SC ), 2019(2)N.C .C .183,
2019(3)SC ALE888

IN THE SUPREME COURT OF INDIA

Review Petition (Crl.) No. 591 of 2014 in Criminal Appeal No. 338 of 2007 and Writ
Petition (Crl.) No. 197 of 2014
Decided On: 21.02.2019
Appellants: Jagdish
Vs.
Respondent: State of Madhya Pradesh
Hon'ble Judges/Coram:
N.V. Ramana, Deepak Gupta and Indira Banerjee, JJ.
Case Note:
Criminal - Death sentence - Mercy petition - Delay -Challenge in present
case was relating to rejection of mercy petition and main ground was that
there was a delay of almost 5 years in deciding mercy petition - Whether
sentence of death should be upheld or not. Facts: Petitioner was tried for
the murder of his wife and five children. He was convicted by trial court
vide judgment and sentenced to death. He filed an appeal which was
dismissed by High Court and death sentence was confirmed. Thereafter, he
filed Criminal Appeal in this Court which was dismissed and again death
sentence was confirmed vide judgment. Petitioner filed mercy petition
before jail authorities, which came to be rejected by President of India on
16th July, 2014. Petitioner had filed Writ petition challenging rejection of
his mercy petition and main ground was that there was a delay of almost 5
years in deciding mercy petition and this itself was a ground to commute
death sentence to life imprisonment. Thereafter, Petitioner also filed
Review Petition in which review of judgment of this Court was sought both
on merits and question of sentence in Criminal Appeal. Hence, present
matter was before this Bench. Held, while allowing the appeal in part 1. In
present case, occurrence took place on intervening night of 19/20th
August, 2005. Trial court completed trial swiftly and delivered its judgment.
High Court confirmed sentence within 2 months, and this Court dismissed
appeal on 18th September, 2009. Petitioner filed a mercy petition
addressed to President of India and Governor of Madhya Pradesh through
the jail authorities. This application was forwarded by Madhya Pradesh
authorities to Ministry of Home Affairs after more than 4 years. Thereafter,
Ministry of Home Affairs called for some records from State of Madhya
Pradesh. These documents were supplied by State of Madhya Pradesh. File
was forwarded to President of India. File was returned to Ministry of Home
Affairs for reconsideration. It was re-submitted to President of India and
finally mercy petition was rejected on 16th July, 2014. [7] 2. As far as
Government of India or Secretariat of the President of India was concerned,
there was no delay in dealing with mercy petition and same had been dealt
with expeditiously. However, State of Madhya Pradesh had given no
explanation for delay of more than 4 years in forwarding mercy petition. [8]
3. Delay in forwarding petition was totally un-explained and present Court
could not countenance an un-explained delay of more than 4 years. Mercy
petition was last hope of a person on death row. Every dawn would give

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 rise to a new hope that, his mercy petition might be accepted. Inordinate
and unexplained delay in deciding mercy petition and consequent delay in
execution of death sentence for years on end was another form of
punishment which was awarded by Court. In cases where death sentence
had to be executed same should be done as early as possible and if mercy
petitions were not forwarded for 4 years and no explanation was submitted,
it was held that, delay was inordinate and un-explained. [10] 4. Death
sentence was exception and had to be awarded in rarest of rare cases.
Keeping in view all circumstances of case, including un-explained delay of 4
years in forwarding mercy petition by State of Madhya Pradesh leading to
delay of almost 5 years in deciding mercy petition and fact that, Petitioner
had been incarcerated for almost 14 years, regardless of brutal nature of
crime, present was not a fit case where death sentence should be executed
and accordingly death sentence was commuted to that of life. However,
keeping in view nature of crime and fact that 6 innocent lives were lost, life
imprisonment in present case shall mean entire remaining life of Petitioner
and he shall not be released till his death. Review Petition as well as Writ
Petition was partly allowed. [12]
JUDGMENT
Deepak Gupta, J.
1 . Petitioner Jagdish was tried for the murder of his wife and five children. He was
convicted by the trial court vide judgment dated 24.04.2006 and sentenced to death.
He filed an appeal which was dismissed by the High Court on 27.06.2006 and the
death sentence was confirmed. Thereafter, he filed Criminal Appeal in this Court
which was dismissed and again death sentence was confirmed vide judgment dated
18.09.2009.
2. The Petitioner filed mercy petition before the jail authorities on 13.10.2009, which
came to be rejected by the President of India on 16.07.2014. The Petitioner has filed
Writ petition (Crl.) No. 197 of 2014 challenging the rejection of his mercy petition
and the main ground is that there is a delay of almost 5 years in deciding the mercy
petition and this itself is a ground to commute the death sentence to life
imprisonment. Thereafter, the Petitioner also filed Review Petition No. 591 of 2014 in
which review of the judgment of this Court dated 18.09.2009 is sought both on
merits and the question of sentence in Criminal Appeal No. 338 of 2007. Hence this
matter is before this Bench.
3. At the outset we may note that we are not inclined to entertain the Review Petition
on the merits of the case. Three courts have come to a concurrent finding of fact that
it was the Petitioner who murdered his wife and five children. We have gone through
the written submissions filed by the learned Counsel appearing on behalf of the
Petitioner and find no reason to take a view different from the one taken earlier.
4 . We are only dealing with the issue whether the sentence of death should be
upheld or not? In the Writ Petition it has been urged that delay in deciding the mercy
petition and the delay in legal proceedings is sufficient to recall the sentence of
death. In the Review Petition some other arguments have been raised. It has been
urged that this case does not fall in the category of the rarest of rare cases; this is a
case based on circumstantial evidence; that the Petitioner Jagdish was suffering from
mental illness; the Petitioner has been incarcerated for almost 14 years and execution
of the death sentence at this stage would virtually mean imposing two sentences
upon him - a sentence of life imprisonment and then a sentence of death.

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 5. Delay in dealing with mercy petition:
This Court in V. Sriharan alias Murugan v. Union of India and Ors.
MANU/SC/0104/2014 : (2014) 4 SCC 242 held that one of the circumstances
recognized by this Court for commutation of death sentence into life
imprisonment is the undue, inordinate and unreasonable delay in the
execution of death sentence. The Court, however, held that whether the delay
is unreasonable or not, it has to be appreciated in the facts of each case. In
Sriharan's case, there was a delay of 5 years and one month in disposing of
the mercy petition and this Court held as follows:
1 7 . Exorbitant delay in disposal of mercy petition renders the
process of execution of death sentence arbitrary, whimsical and
capricious and, therefore, in executable. Furthermore, such
imprisonment, occasioned by inordinate delay in disposal of mercy
petitions, is beyond the sentence accorded by the court and to that
extent is extra-legal and excessive. Therefore, the apex
constitutional authorities must exercise the power Under Articles
72/161 within the bounds of constitutional discipline and should
dispose of the mercy petitions filed before them in an expeditious
manner.
18. ..........
1 9 . Before we advert to respond the aforesaid contention, it is
relevant to comprehend the primary ground on the basis of which
the relief was granted in cases of delayed disposal of the mercy
petition and that is, such delay violates the requirement of a fair,
just and reasonable procedure. Regardless and independent of the
suffering it causes, delay makes the process of execution of death
sentence unfair, unreasonable, arbitrary and capricious and thereby,
violates procedural due process guaranteed Under Article 21 of the
Constitution and the dehumanising effect is presumed in such cases.
It is in this context, this Court, in the past, has recognised that
incarceration, in addition to the reasonable time necessary for
adjudication of mercy petitions and preparation for execution, flouts
the due process guaranteed to the convict Under Article 21 which
inheres in every prisoner till his last breath.
Consequently, the Court commuted the death sentence to life.
6. In Ajay Kumar Pal v. Union of India and Anr. MANU/SC/1181/2014 : (2015) 2 SCC
478 this Court was dealing with a case where there was a delay of 3 years and 10
months in dealing with the mercy petition. In this case it was also admitted that the
Petitioner had been kept in solitary confinement after the death sentence was
confirmed by this Court. This Court held that the combined effect of the inordinate
delay in disposal of the mercy petition and solitary confinement for such a long
period caused deprivation of the cherished right to liberty of the Petitioner and,
therefore, the death sentence was converted to life imprisonment.
7 . As far as the present case is concerned the occurrence took place on the
intervening night of 19/20.08.2005. The trial court completed the trial swiftly and
delivered its judgment on 24.04.2006. The High Court confirmed the sentence within
2 months on 27.06.2006, and this Court dismissed the appeal on 18.09.2009. The
Petitioner filed a mercy petition addressed to the President of India and the Governor
of Madhya Pradesh through the jail authorities on 13.10.2009. This application was

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 forwarded by the Madhya Pradesh authorities to the Ministry of Home Affairs after
more than 4 years on 15.10.2013. Thereafter, the Ministry of Home Affairs called for
some records from the State of Madhya Pradesh on 20.11.2013. These documents
were supplied by the State of Madhya Pradesh on 12.12.2013. The file was forwarded
to the President of India on 02.04.2014. The file was returned to the Ministry of
Home Affairs for reconsideration. It was re-submitted to the President of India on
07.07.2014 and finally the mercy petition was rejected on 16.07.2014.
8 . As far as the Government of India or the Secretariat of the President of India is
concerned, there is no delay in dealing with the mercy petition and the same has
been dealt with expeditiously. However, the State of Madhya Pradesh has given no
explanation for the delay of more than 4 years in forwarding the mercy petition.
9. We are constrained to observe that not only was there a long, inordinate and un-
explained delay on the part of the State of Madhya Pradesh but to make matters
worse, the State of Madhya Pradesh has not even cared to file any counter affidavit in
the Writ Petition even though notice was issued 4 years back on 18.11.2014 and
service was effected within a month of issuance of notice.
10. The delay in forwarding the petition is totally un-explained and this Court cannot
countenance an un-explained delay of more than 4 years. We are dealing here with
the case of a person who has been sentenced to death. The mercy petition is the last
hope of a person on death row. Every dawn will give rise to a new hope that his
mercy petition may be accepted. By night fall this hope also dies. Inordinate and
unexplained delay in deciding the mercy petition and the consequent delay in
execution of death sentence for years on end is another form of punishment which
was awarded by the Court. This Court has repeatedly held that in cases where death
sentence has to be executed the same should be done as early as possible and if
mercy petitions are not forwarded for 4 years and no explanation is submitted we
cannot but hold that the delay is inordinate and un-explained.
11. We are not only dealing with the issue of delay in disposal of the mercy petition.
The Petitioner has now been behind bars for almost about 14 years. This is also a
factor which will have to be taken into consideration.
1 2 . Death sentence is the exception and has to be awarded in the rarest of rare
cases. Keeping in view all the circumstances of the case, including the un-explained
delay of 4 years in forwarding the mercy petition by the State of Madhya Pradesh
leading to delay of almost 5 years in deciding the mercy petition and the fact that the
Petitioner has been incarcerated for almost 14 years, we are of view that regardless
of the brutal nature of crime this is not a fit case where death sentence should be
executed and we, accordingly commute the death sentence to that of life. However,
keeping in view the nature of crime and the fact that 6 innocent lives were lost, we
direct that life imprisonment in this case shall mean the entire remaining life of the
Petitioner and he shall not be released till his death. The Review Petition as well as
the Writ Petition are partly allowed in the aforesaid terms and, accordingly, disposed
of. Pending application(s) if any shall stand disposed of.
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