judgement:
Civil Appeal No. 2264 of 1979.
Appeal by Special leave from the Judgment and Order dated the 30th March, 1979 of the Allahabad High Court in Civil Misc.
Writ Petition No. 417 of 1977).
R.K. Jain for the Appellant.
Bishamber Lal Khanna and S.K. Gupta for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant who was unsuccessful before the High Court of Allahabad in a writ petition filed by him under Article 226 of the Constitution has filed this appeal by special leave against the judgment of the High Court.
In the writ petition the appellant had questioned the validity of the appointment of Mr. A.P. Joseph, respondent No. 2 herein as the Principal of the Ranikhet Intermediate College, Ranikhet, which was a minority institution having the protection of Article 30 of the Constitution in preference to him.
The proceedings for the selection of a qualified person to the post in question commenced in the year 1973.
The Selection Committee constituted under section 16 E of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act) recommended three persons viz.
Shri Bindeshwari Prasad 600 Shri S.C. Khyali and the appellant.
The appellant was given the third rank in that recommendation.
The Regional Deputy Director of Education did not approve of the said selection.
The matter was again remitted to the Selection Committee.
On the second occasion, the Selection Committee recommended the names of the appellant and respondent No. 2 assigning respondent No. 2 a higher rank.
That selection also was disapproved by the Deputy Director.
The Selection Committee thereafter made a third recommendation.
The appellant preferred a writ petition before the High Court questioning the validity of the third selection made by the Selection Committee.
The High Court by its judgment dated August 19, 1975 allowed his writ petition quashed the selection made by the Selection Committee on the third occasion as being without jurisdiction and having regard to the fact that the post in question was that of the Principal directed the Director of Education to make an appointment in accordance with section 16(F)(4) of the Act.
Pursuant to the direction of the High Court, after considering the cases of the qualified candidates who had applied for the vacancy in question, the Director appointed respondent No. 2 to the post by his order dated March 8, 1977.
The appellant questioned this appointment by the writ petition out of which this appeal arises before the High Court.
The High Court dismissed the petition.
This appeal by special appeal is filed against the judgment of the High Court.
Before the High Court the appellant raised two contentions: 1.
The appointment made by the Director was opposed to the relevant provisions of the Act as they stood on the date of the appointment since on that day by reason of the amendment made to the Act by U.P. Act 26 of 1975 which had come into force on August 18, 1975, the power of the Director to make an appointment had been taken away in relation to minority institutions.
In any event the Director could not have appointed respondent No. 2 for the post since his selection had been disapproved earlier by the Deputy Director.
Both these contentions were negatived by the High Court.
They are again urged before us.
601 Section 16 F of the Act, as it stood prior to August 18, 1975 read thus : "16 F. (1) Subject to the provisions hereinafter specified, no person shall be appointed as a Principal, Headmaster or teacher in a recognised institution unless he (a) possesses the prescribed qualifications or has been exempted under sub section (1) of section 16 E, (b) has been recommended by selection committee constituted under sub section (2) or (3), as the case may be, of the said section and approved, in the case of Principal or Headmaster by the Regional Deputy Director, Education and in the case of a teacher by the Inspector : Provided that if the Inspector is satisfied that for any institution, no candidate, who possesses all the prescribed qualifications, is available for appointment, he may permit the institution to employ as a temporary measure any suitable person for a period not exceeding one year.
Such period may be extended with the prior approval of the Inspector : Provided also that in the case of leave vacancy or of a vacancy occurring for a part of the session of the institution, it shall be lawful for the Committee of Management to appoint a Principal, Headmaster or teacher if information of such an appointment is immediately conveyed to the Inspector.
(2) The name of the selected candidate shall be forwarded for approval, in the case of a teacher, by the Principal or Headmaster to the Inspector, and in the case of Principal or Headmaster, by the Chairman of the Selection Committee to the Regional Deputy Director, Education.
A statement showing the names, qualifications, and other particulars as may be prescribed, of all candidates who may have applied for selection shall also be sent along with the name of the selected candidate.
The Inspector or Regional Deputy Director, Education, as the case may be, shall give his decision within two 602 weeks of the receipt of the relevant papers, failing which approval shall be deemed to have been accorded.
(3) Where the Regional Deputy Director, Education, or the Inspector, as the case may be, disapproves for reasons to be recorded in writing of any name proposed under sub section (1), the management may, within three weeks of the receipt of the disapproval, make a representation against it to the Director in the case of a Principal or Headmaster and to the Regional Deputy Director, Education, in the case of a teacher, and the decision of the Director or the Regional Deputy Director, Education, as the case may be, in the matter shall be final.
(4) Where the recommendation made under subsection (2) has been disapproved and the representation of the management, if any, under sub section (3) has been rejected, the Selection Committee shall proceed to select and recommend another name for approval as provided under section 16 E and 16 F.
If the selection so made is again disapproved and the representation, if any, against the disapproval has not been accepted, the Regional Deputy Director, Education in case of a teacher and the Director in the case of a Principal or Headmaster may appoint any qualified person out of the list of the candidates applying for the vacancies and such appointment shall be final.
" It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18,1975 taking away the power of the Director to make an appointment under section 16 F (4) of the Act in the case of minority institutions.
The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under section 16 F of the Act.
Nor do we find any words in it which by necessary intendment would affect such pending proceedings.
The process of selection under section 16 F of the Act commencing from the stage of calling for applications for a post upto the date on which the Director becomes entitled to make a selection under Section 16 F(4) (as it stood then) is an integrated one.
At every stage in that process certain rights are created in favour of one or the other of the candidates.
Section 16 F of the Act cannot, therefore, be construed 603 as merely a procedural provision.
It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations.
But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.
In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question.
At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power.
Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect.
It did not have any effect on the proceedings which had commenced prior to August 18, 1975.
Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings.
We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case.
In so far as the second contention is concerned, it is to be stated that the Act does not state that a person who had been recommended by a Selection Committee once and whose selection had been disapproved by the Deputy Director should not be considered for the post in question by the Director when he exercises his power under sub section (4) of section 16 F of the Act.
That provision merely states that in such an event, where the post to be filled up is that of a Principal or a Headmaster, the Director may appoint any qualified person from amongst the candidates who had applied for the vacancy and that such appointment shall be final.
The respondent No. 2 satisfied the requirement of sub section (4) of section 16 F of the Act.
The fact that the Deputy Director had disapproved the recommendation of the Selection Committee recommending him for the post in question once before cannot be construed as amounting to a disqualification.
It is also to be noticed 604 that under section 16 F(4) of the Act it is the Director who is authorised to make the appointment of a Principal and not the Deputy Director.
There is, therefore, no ground to interfere with the judgment of the High Court.
In view of the foregoing, the appeal is dismissed.
There shall be no order as to costs.
H.S.K. Appeal dismissed.

summary:
Under section 16 F(4) of the U.P. Intermediate Education Act, 1921 the Director of Education had the power to appoint the Principal of a recognised institution from amongst the qualified persons who had applied for that post, if the recommendation made under sub section
(2) by the Selection Committee constituted under section 16 E had twice been disapproved by the Regional Deputy Director and the representation of the management of the institution, if any, under sub s.(3) against that disapproval had been rejected.
This power of the Director in relation to minority institutions was taken away by the amending Act 26 of 1975 with effect from August 18, 1975.
Respondent No. 2 was appointed Principal of a minority institution by the Director of Education on March 8, 1977 in exercise of his power under section 16 F(4) of the Act.
The process of selection for the post in question had been commenced in 1973 and the recommendation of the Selection Committee had been rejected twice by the Regional Deputy Director of Education.
The appellant challenged the appointment on the ground that (i) on the date of appointment the Director had no power to appoint a Principal of a minority institution as it had been taken away by the amending Act; and (ii) that in any event the Director could not have appointed respondent No. 2 as his selection had been disapproved earlier by the Deputy Director.
The High Court dismissed the writ petition.
Dismissing the appeal, ^ HELD: No retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.
The amending Act had no retrospective effect.
It did not provide expressly that the amendment in question would apply to the pending proceedings under section 16 F, nor did it contain any words which by necessary intendment would affect such pending proceedings.
The process of selection under section 16 F commencing from the stage of calling for applications or a post 599 upto the date on which the Director becomes entitled to make a selection is an integrated one.
At every stage in that process certain rights are created in favour of one or the other candidates.
[603 B, 602 G H, 603 A] In the instant case, the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates, who had applied for the vacancy in question.
Although the Director exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal.
[603 B D] The Act does not state that a person who had been recommended by a Selection Committee once and whose selection had been disapproved by the Deputy Director should not be considered for the post in question by the Director when he exercised his power under section 16 F(4).
The fact that the Deputy Director had disapproved the recommendation of the Selection Committee recommending respondent No. 2 for the post in question once before cannot be construed as amounting to a disqualification.
[603 F H]


judgement:
N: Criminal Appeals Nos. 54 &55 of 1974.
Appeals by Special leave from the Judgment and Order dated the 21st September, 1973 of the Allahabad High Court in Criminal Appeal Nos.
1923 & 1918 of 1969 respectively.
Frank Anthony and K B. Rohtagi for the Appellants in Crl.
54 of 1974.
Frank Anthony, S N. Singh and T.N. Singh for the Appellants in Crl.
55 of 1974 S.M.Jain, H.M. Singh and Dalveer Bhandari for the Respondent in both Appeals.
Devendra N. Goburdhan and D. Goburdhan for the complainant in both the Appeals.
The Judgment of the Court was delivered by VARADARAJAN J.
These appeals by special leave are directed against the dismissal of Criminal Appeals Nos. 1918 and 1923 of 1963 by a Division Bench of the Allahabad High Court.
Those appeals in the High Court were filed against the conviction of nine accused persons, Om Prakash (A 1), Anoop Singh (A 2), Sheo Gopal (A 3), Raj Narain (A 4), Chandra Prakash (A 6), Mool Chand (A 12), Beni Singh (A 16) Ram Pal (A 17) and Lajjar Ram alias Raja Ram (A 18)under section 396 I.P.C. and the sentence of imprisonment for life awarded to them by the learned Sessions Judge, Kanpur Etawah at Kanpur in Sessions Trial No. 172 of 1969, in which in all 18 accused persons were tried.
The trial Court acquitted the other nine accused, Bhoop Singh (A 5), Virendra (A 7), Ramadhin (A 8), Ranjit (A 9), Chhotay Lal (A 10), Chunni Lal (A 11), Bhanu Prakash (A 13), Dhani Ram (A 14) and Ram Gopal (A 15) in the alleged dacoity with murder at the house of Mauji Lal,Pradhan in Makhauli village, at about 1.A.M. in the night of 16/17.2.1968.
In that incident Mauji Lal died and his wife Ram Shree (P.W.2), Parasuram (P.W.7) and P.W.2 's brother Ram Shankar (P.W.8) are stated to have sustained injuries.
The case of the prosecution was this: There was enmity between the deceased Pradhan Mauji Lal and his brother Baij Nath (P.W.1) on one hand and the appellants on the other ever since the 568 deceased Mauji Lal, fought an election battle in 1955 with Mauji Lal, the father of Om Prakash (A 1) and Bhagwati Prasad, the father of Raj Narain (A 4).
There were several cases between the parties.
About a month before this occurrence, Mauji Lal had reported by Exh.
Ka 7 dated 22.1.1968 that accused persons Om Prakash (A 1) and Sheo Gopal (A 3) had committed theft of timber belonging to the village school managed by him.
A few days later on 26.1.1968 Mauji Lal had complained before the Sub Divisional Magistrate, Ghatampur that Mool Chand (A 12) forcibly occupied Gaon Sabha land.
In 1967 there was rioting in the village, to which the prosecution party and accused belong.
In that rioting one Ran Sanahi was murdered on one side and Kanwar Lal was murdered on the other side, and two cases were registered, and Om Prakash (A 1), Sheo Gopal (A 3), Raj Narain (A 4), Ranjit (A 9), Chhotay Lal (A 11), Mool Chand (A 12), Bhoop Singh (A 5), Rampal (A 17), Lajjar Ram (A 18) and other are accused in one case while in the other case the deceased Mauji Lal and 14 others including Mauji Lal 's brother Baij Nath (P.W.1) are accused and those cases were pending even on the date of the occurrence in this case.
Om Prakash (A 1), Anoop Singh (A 2), and Sheo Gopal (A 3) are brothers.
Raj Narain (A 4), Bhoop Singh (A 5) Virendra (A 7) and Chandra Prakash (A 6) are brothers.
Mool Chand (A 12) and Bhanu Prakash (A 13) are brothers, Beni Singh (A 16) nephew of Dhani Ram (A 14) and Ram Gopal (A 15), Ram Pal (A 17) and Lajjar Ram alias Raja Ram (A 18) are cousins.
On the moon lit night of 16/17.2.1968 deceased Mauji Lal who was Pradhan of the village and his wife Ram Shree (P.W.2) and their children were sleeping in their house in Makhauli village, Mauji Lal in the western kotha and PW 2 and her children in the eastern kotha, between which there is a barotha.
There was a lighted lantern hanging from a peg at a height of 6 feet from the floor on the eastern wall of the eastern kotha.
Ram Shankar (P.W.8) the brother of Ram Shree (P.W.2) who was assisting his deceased brother in law Mauji Lal in the cultivation of his lands was sleeping in a tin shed situate west of the western kotha.
The deceased Mauji Lal and his wife Ram Shree (P.W.2) woke up on hearing some commotion when the miscreants who entered the eastern kotha of the house were breaking open the northern door P.W.2 raised the wick of the lantern, material Exh.
III, which had been lowered previously, and there was sufficient light in the kotha for recognising the miscreants.
Mauji Lal had come 569 into the eastern kotha before its northern door was broken open by the miscreants.
Om Prakash (A.1), Sheo Gopal (A 3), Anoop Singh (A 2), Raj Narain (A 4), Chandra Prakash (A 3), Mool Chand (A 12), Beni Singh (A 16), Ram Pal (A 17) and Lajjar Ram alias Raja Ram (A 18) entered the eastern kotha after breaking open the northern door with a kulhari, Om Prakash armed with a pistol and the others armed with Kanta, ballams, kulhari lathi and pistol.
A Pistol shot was fired through the opening in the door before the miscreants entered the eastern kotha.
These nine accused persons, Om Prakash (A 1), Anoop Singh (A 2), Sheo Gopal (A 3), Raj Narain (A 4), Chandra Prakash (A 6), Mool Chand (A 12), Beni Singh (A 16), Ram Pal (A 17) and Lajjar Ram alias Raja Ram (A 18) severely assaulted Mauji Lal who died at the spot as a result of the injuries sustained by him.
Sheo Gopal (A 3), Chandra Prakash (A 6), Beni Singh (A 16), Ram Pal (A 17) and Lajjar Ram alias Raja Ram (A 18) assaulted P. W.2 severely and ransacked the house for about 15 or 20 minutes and took away from that eastern kotha and the adjacent box room of the house ornaments, cash, clothes etc., valued at Rs. 2,700/ .
Ram Shankar (P.W.8) who was sleeping in the tin shed, as stated above, woke up on hearing the shouts and sound of gun fire and saw accused Virendra (A 7) and Ramadhin (A 8) standing near his cot armed with lathis and they inflicted lathi blows on him.
When he got an opportunity, Ram shankar (P W.8) entered the house and concealed himself by the side wall near the door connecting the eastern kotha and the barotha and witnessed what was happening inside the eastern kotha.
P.Ws. 2 and 8 could see the miscreants in the light of the lantern material Exh.
Baij Nath (P.W.1), Parasuram (P.W.7) and others of the village woke up on hearing sound of gun shot, and proceeded towards the house of the deceased Mauji Lal and stood under a neem tree in front of one Banwari Lal 's house and concealed themselves in the chappra of one Motilal situate east of the deceased Mauji Lal 's house.
They saw the miscreants when they were departing from the scene, with the moonlight.
The miscreants standing on the roof of Sham Lal 's house earlier shot at Parasuram (P.W.7) while he was standing in front of that house and he sustained gun shot injuries.
About one and a half hours after the miscreants left the place, P.W. 1 who went inside the house and found Mauji Lal lying dead with injuries and P.Ws. 2 and 8 having injured, got the report, Exh.
Ka 1 written by one Shankar Singh.
He thereafter proceeded to 570 the Police Station at Mooa Nangar situate six miles away from the village, and handed it over to the Head Constable Ram Kishore Panday (P.W.9).
On the basis of that report a formal FIR was registered at the Police Station at 6.05 AM on 17.2.1968.
Tiwari, the Sub Inspector of Police (P.W. 11) took up investigation and reached the village at 8 AM on 17.2.1968 when PW 2 handed over to him a list of properties which had been looted from her house.
P.W. 11 found the dead body of Mauji Lal in the eastern kotha and the lantern material Exh.
III hanging from a peg in the eastern wall of the kotha and boxes broken open and the locks thrown in the verandah.
Autopsy on the body of Mauji Lal was conducted by Dr. Sharma (P.W. 3), Civil Surgeon, Kanpur at 2 PM on 18.2.1968.
He found six incised wounds, two lacerated wounds and three abrasions on the body of the deceased.
The left eye was found black.
The sculpt bones were found cut through and through under three incised wounds.
The doctor (P.W.3) was of the opinion that the incised wound might have been caused by some sharp edged weapons like kanta and axe, that the lacerated wounds could have been caused with lathi, that the abrasions might have been caused by coming into contact with some rough object, that the blackening of the eye might be due to clotting of blood due to the head injury and that all the injuries together were sufficient in the ordinary course of nature to cause instantaneous death.
exhibit Ka 2 is the post mortem certificate issued by P.W.3.
The injured witnesses P.Ws. 2, 7 and 8 were examined between 6 PM and 7.30 PM on 17.2.1968 by Dr. Mukherjee of Chattarpur Dispensary, who could not be examined as a prosecution witness on account of difficulty due to his non availability.
The wound certificates, Exh.
Ka 18 20, issued by that Doctor in respect of P.Ws.2, 7 and 8 have been proved by the Compounder Vishamber Nath (P.W. 13).
P.W. 2 had sustained 19 injuries consisting of one lacerated wound on the left side of the head and a number of contusions and abrasions on various parts of her body, all caused by blunt weapons.
P.W. 7 had sustained six gun shot injuries.
P.W. 8 had sustained a contusion on the top of his shoulder joint and an abrasion on the lower aspect of the right clavicular region, all caused by blunt weapons such as lathis.
That fact the there was enmity between the two parties and that Mauji lal was murdered and property worth about Rs. 2,700/ from his house was looted in the night of 16 17.2.1968 and that in 571 that incident Mauji Lal 's wife (P.W. 2) and brother in law (P.W.8) were injured and P.W. 7 who came near the scene of occurrence had received six gun shot injuries, was not doubted or disputed before the learned Sessions Judge by the learned counsel for the defence.
But all the accused denied in their statement their presence and participation in the occurrence.
The suggestion made on behalf of the accused was that an armed gang of dacoits, not known to the prosecution witnesses, committed the crime and that the accused have been falsely implicated on account of enmity.
No defence witnesses were examined.
The prosecution examined.
PWs 1,2,7 and 8 as eye witnesses to speak about the participation of the accused in the occurrence.
P.W. 1 implicated all the 18 accused persons as having been present at the time of the occurrence.
P.W. 2 implicated only the nine appellants, namely A 1 to 4,6,12 and 16 to 18 as those who entered the house and attacked her and her husband and committed dacoity.
P.W. 7, implicated fourteen accused, namely Anoop Singh (A 2), Raj Narain (A 4), Bhoop Narain (A 5), Chandra Prakash (A 6), Virendra (A 7), Ramadhin (A 8), Ranjeet (A 9), Chhote alias Ram Swarup (A 10), Chunni Lal (A 11), Mool Chand (A 12), Bhanu Prakash (A 13),Dhani Ram (A 14), Ram Gopal (A 15) and Rampal (A 17) as some of the miscreants who were present at the house of P.W. 2.
P.W. 8 also implicated these nine appellants besides Virendra (A 7) and Ranjit (A 8).
The learned Sessions Judge found that the FIR (Exh. ka 1) had been lodged at the Police Station without any inordinate delay and that there was nothing on the record to show that there was any oblique motive for concocting a false story of the occurrence.
But he was of the opinion that the evidence of P.Ws. 1 and 7 does not inspire confidence, that it could not be believed beyond all reasonable doubt that those two witnesses had seen the occurrence, that P.W. 1 would have been fired at if he had been present at the chappar as claimed by him and that the probability is that as soon as P.W. 7 received the six gun shot injuries in front of Narbada 's house, he would have either fallen down there or returned to his house.
He was further of the opinion that in any case P.Ws. 1 and 7 could not have had sufficient "glimpse of the miscreants" so as to be able to identify them.
He rejected the evidence of P.W. 8 about the participation of Virendra (A 7) and Ramadhin (A 8) in the occurrence as not inspired sufficient confidence and was of the opinion that the evidence 572 Of P.Ws. 1, 7 and 8 about the participation of the acquitted accused 5, 7 to 11 and 13 to 15 in the crime was not acceptable.
As regards the participation of the appellants in the crime he accepted the evidence of P.Ws. 2 and 8.
The evidence of P.W. 2 is that she saw the appellants in the light of the lantern that was hanging in the eastern wall of the eastern kotha as soon as they entered her kotha and also while they were attacking her husband and causing injuries to her and carrying away the properties from the house.
The evidence of P.W. 8 is that he saw Om Prakash (A 1) when he was escaping from the tin shed where he was sleeping earlier to the western kotha and that he saw the other appellants from behind the door of the western kotha when they were attacking deceased and P.W. 2 and looting the properties from the house.
The learned Sessions Judge accepted the evidence of P.Ws. 2 and 8 about their presence in the house at the time of the occurrence, and also the fact that they received the injuries at the hands of the miscreants and could see what had taken place in the light of the lantern as well as of the moon.
Accordingly, he acquitted accused 5, 7 to 11 and 13 to 15 and convicted the appellants and sentenced them as mentioned above.
The learned Judges of the High Court agreed with the trial court in not relying upon the evidence of P.Ws. 1 and 7.
They were not prepared to doubt the presence of P.W. 8 in the tin shed of the house of the deceased Mauji Lal and P.W. 2 in view of the fact that he has received injuries at the hands of the miscreants.
But they found it difficult to believe that on finding an opportunity to move away from the tin shed, he would have entered the house and taken shelter there when the miscreants were in the house and beating the deceased and P.W. 2.
They were of the opinion that P.W. 8 could have been of more help to his sister P.W. 2 by running to the village abadi for help so that on the arrival of the villagers the offenders may run away and not cause undue havoc in the house.
P.W. 2 had not mentioned P.W. 8 as one of the persons who came into the kotha after the miscreants left the place though, he had mentioned the names of many other persons who came into the kotha.
According to the learned Judges, P.W. 8 could have seen only some of the offenders but he has intentionally made improvements in his version.
For these reasons the learned Judges of the High Court thought it not safe to rely on any part of the evidence of P.W. 8.
But they were of the opinion that the incident could have been witnessed only by P.W. 2.
and her children and that there is no substance in the criticism that independent witnesses have not been called to depose about the occurrence as eye witnesses.
They were of the opinion that P.W.2 573 has given straight forward evidence without any attempt at making any improvement to fit in with the testimony of the other prosecution witnesses.
They accepted the evidence of P.W. 2 as wholly reliable and confirmed the convictions of the appellants and the sentence awarded to them and dismissed the appeals.
The learned counsel for the appellants submitted that the F.I.R. Exh.
Ka 1 is ante timed.
He drew our attention to section 157 of the Code of Criminal Procedure and submitted that the time of despatch of Exh.
Ka 1 is not entered there on.
Section 157 only states that the first information report should be despatched forthwith and does not say that the time of despatch must be noted thereon.
The learned Sessions Judge has observed in his judgment that Exh Ka 1 seems to have been lodged at the Police Station without any inordinate dely and that there is nothing on record to show that there was any oblique motive for concocting a false story of the occurrence itself in that first information report.
The learned counsel for the appellants invited our attention to the evidence of Shiv Poojan Tiwari Sub Inspector of Moosa Nagar Police Station who had been examined as C.W. 1.
The evidence of CW. 1 is that while he was raiding Numain Purwa village in a murder case of his Police Station at about 2.00 A.M. in the night of 16/17 2 1968 he heard noise coming from the side of Makhauli village situate 3 miles north of Numain Purwa village and went there along with some armed police guard at about 4.00 A.M. and was informed that Mauji Lal had been murdered in his house and property had been looted from his house by dacoits and that his brother and certain other persons had gone to the police station for lodging a report.
He has also stated that he went to the house of Mauji Lal and found his dead body lying inside the house and that he stayed in the village until the Sub Inspector of the Police Station concerned (P.W. 11) arrived at the spot and started investigation.
The learned counsel for the appellants commented on the basis of the evidence of C.W. 1 that he had not noted the names of the assailants in the general diary entry made by him in his police station that the names of the 18 accused including those of the appellants have been mentioned in the first information report Exh.
Ka 1 only as an after thought.
The relevant portion of Exh.
Ka 1 may be extracted in order to appreciate the contention of the learned counsel for the appellants.
P.W. 1 the author of exhibit Ka 1 who does not claim to have seen the incident which took place in the eastern kotha of the house of the deceased has stated in that report thus : 574 "Today my brother Mauji Lal was sleeping inside his house in the night as usual.
A lantern was burning in the house.
Ram Shree (P.W. 2) was also inside the house.
Shri Ram Shankar s/o Manni Lal (P.W.8) was sleeping under the tin shed.
In the night intervening between 16th and 17th of February 1968, at about 1.00 O ' clock, the accused persons, having armed themselves with kantas, ballams, lathis, axes, guns and pistols came and surrounded the house of my brother Mauji Lal.
They cut open the door and entered the house.
They inflicted injuries upon my brother Mauji Lal and caused his instantaneous death.
They also caused injuries to my bhabhi.
My bhabhi raised alarm.
Ram Shankar was also assaulted with lathis.
He too, raised alarm.
On hearing the shouts and the sounds of guns and pistols I and Prasu Ram s/o Hira Lal (P.W. 7), Ram Adhar, Ram Kumar, Ram Prasad Sachan, Banwari Lal s/o Ram Lal, residents of my village, Beta Lal Sachan of Damodarpur, and several other persons, reached the spot, saw the occurrence, and challanged the accused persons.
They recognised them in the light of the moon.
My bhabhiji and Ram Shankar have also recognised the accused persons in the light of the moon and lantern.
Parasu Ram has also received injuries from the shots of the gun.
There are several injuries on the person of my brother.
After committing the assault, the accused persons looted away the articles kept in the boxes in the house, ornaments, clothes and cash etc.
The accused persons kept coming and going outside inside and on the roof.
Out of the accused persons, Anup Singh was armed with an axe, Dr. Om Prakash with a pistol, Raj Narian and Mool Chand with kantas, Ram Gopal and Dhani Ram with guns and Bhoop Narain and Ranjeet with ballams.
The remaining persons were armed with lathis.
" The actual part played by either any of the appellants or any of the acquitted accused has not been mentioned in this report.
It must be remembered in this connection that while P.W. 1 has named all the 18 accused mentioned in Exh.
P.W. 2 has named only the 9 appellants, P.W. 7 has named the 9 appellants as also accused 7 and 8 and P.W. 8 has named 14 accused persons.
If Exh.
Ka 1 was ante timed as submitted by the learned counsel for the appellants it is not probable that the police would have obtained that report from 575 P.W. 1 who was not one of the residents of the house of Mauji Lal where the occurrence had taken place but was admittedly living in his own house situate at some distance from the house of the deceased and was admittedly attracted to the scene of occurrence only by shouts and the sounds of guns and pistols.
If the police had intended to obtain a concocted first information report it is not probable that instead of obtaining it from P.W. 8 who was indisputably one of the residents of the house in which the occurrence had taken place they would have obtained it from P.W. 1.
The evidence shows that on the basis of this first information report a formal F.I.R. was recorded to the Police Station situate six miles away from the scene of occurrence at 6.05 A.M. on 17.2.1968.
The evidence of P.W. 1 is that he left for the police station about 1 or 11/2 hours after the culprits left the place and gave the report which he had got written by one Shankar Singh.
The Sub Inspector of Police, P.W. 11 has stated that he thereafter took up investigations of the case and reached the village at 8.00 A.M. and found the dead body of Mauji Lal in the eastern kotha and obtained a list of the looted properties from P.W. 2.
In these circumstances we are of the opinion that the submission of the learned counsel for the appellants that the first information report Exh.
Ka 1 is ante timed is not well founded.
The learned counsel for the appellants next submitted that having regard to the size of the eastern kotha of the house of the deceased it is not probable that these 9 appellants with arms such as guns, pistols, axe and lathis could have been in the kotha together at the same time at the time of the occurrence.
The evidence of P.W. 2 is that the kotha is 19 or 20 cubits north south, 41/2 cubits east west and 10 ' in height The evidence of P.W. 11 shows that the eastern kotha is 7 1/2, in height.
It is stated in the first information report Exh.
Ka 1 that the culprits were moving in and out of the house of the deceased at the time of the occurrence.
Therefore, it is quite not unlikely that all the 9 appellants were in the eastern kotha of the house at the same time and it is not improbable that these appellants were seen by P.W. 2 at different times during the occurrence which must have gone on for some length of time during which P.W. 2 has received as many as 19 injuries.
The deceased and P.W. 8 also received injuries, and P.W. 7 who was near about the house of the deceased at the time of the occurrence has also received as many as 6 gun shot injuries.
In these circumstances we are of the opinion that the submission of the learned counsel for the appellants that having regard to the size of the eastern kotha it is not probable that 576 the appellants armed with various weapons could not have been present in that kotha is not acceptable.
The learned counsel for the appellants next submitted that Dr. Mukherjee who was in charge of the Primary Health Centre, Ghatampur on 17 2 1968 and had examined P. Ws. 2,7 and 8 on that day and issued the wound certificates Exh.
Ka 18 to Ka 20, has not been examined and that only the compounder of that Primary Health Centre, P.W. 13 has been called to prove those certificates.
The reason given by the prosecution for the non examination of Dr. Mukherjee is that he was not available and could not be examined without difficulty.
The explanation for the non examination of Dr. Mukherjee is no doubt not quite satisfactory.
The learned Public Prosecutor should have taken steps to procure the attendance of Dr. Mukherjee for giving evidence about the injuries noted by him as per Exh.
Ka 18 to Ka 20 on the persons of P.Ws. 2,7 and 8.
But the fact that these three witnesses had sustained injuries during the occurrence in this case was not and could not be disputed.
Those witnesses have stated in their evidence that they sustained injuries during the occurrence.
Therefore, the non examination of Dr. Mukherjee for proving the injuries noticed by him on the bodies of P.Ws. 2, 7 and 8 as per the wound certificates Exh.
Ka 18 to Ka 20 is not fatal to the prosecution.
The learned counsel for the appellants next submitted that no property out of the properties looted from the house of the deceased and P,W. 2 has been recovered from any of the appellants and that it is, therefore, not probable that any of these appellants was responsible for the occurrence in this case.
But, as stated earlier, the fact that Mauji Lal was murdered and property from his house was looted on the night of 16/17 2 1968 and in that occurrence Mauji Lal 's wife P.W. 2 and his brother in law P.W, 8 were injured in the house and P.W. 7 sustained 6 gun shot injuries when he was standing near the scene of occurrence had not been disputed before the learned Sessions Judge by the learned counsel for the defendants.
The suggestion made on behalf of the accused was that an unknown armed gang of dacoits committed the crime and that the accused have been falsely implicated in this case on account of enmity.
Having regard to the availability of other incriminating evidence against the appellants, it is not possible to agree with the learned counsel for the appellants that from the mere fact that none of the looted properties has been recovered from any of the appellants it could be held that the appellants are not the culprits in this case.
577 The learned counsel for the appellants next submitted that the lantern material Exh.
III has not been put to or identified by P.W. 2 as the one which was burning in the eastern kotha at the time of the occurrence.
Here again it is unfortunate that the learned Public Prosecutor has not got the lantern identified by P.W. 2.
But Sub Inspector of Police P.W. 11 who had seized that lantern has stated in his evidence that it was found hanging on a peg on the eastern wall of the eastern kotha of the house of the deceased and P.W. 2 and that it was in working condition.
The presence of the lantern in the eastern kotha at the time of the occurrence as well as of moon light at the time of the occurrence has been mentioned in the first information report Exh.
Ka 1 by P.W. 1 who is a brother of the deceased Mauji Lal and a resident of the same village and could be naturally expected to have gone into the house of the deceased soon after the culprits left the place.
P.W. 2 has stated in her evidence that it was moon lit night and the lantern was burying in the eastern kotha where it had been hung on a peg fixed at a height of 6 ' from the ground on the eastern wall and that when she heard the sound of some persons in the court yard she got up immediately and raised the wick of the lantern which was until then giving dim light.
She has stated in her cross examination that the lantern used to be hung daily on the same peg, that there was no blackness on the wall near the peg and that she had scratched it off about 8 days prior to the date of her examination in the Court.
It is significant to note that it has not been suggested to P.W. 2 that there was no lantern at all in the room in which she was sleeping with her children and that her husband Mauji Lal whose dead body was found by the Sub Inspector P.W. 11 in that kotha had not come to that kotha at all.
It is seen from the almanac that the night of 16/17.2.1968 was the third night after the full moon and that the moon arose at Delhi at 8.43 P.M. on that day.
It has not been suggested to P.M. 2 or P.W. 7 or any other witness examined by the prosecution that the night was cloudy and visibility was poor for that or any other reason.
It is not improbable that the lantern was burning in the eastern kotha where P.W. 2 and her children were sleeping during the night and that P.W. 2 had raised the wick of the lantern when she heard some commotion in the court yard of her house before the culprits broke open the eastern door of her kotha and entered the same.
Therefore, there must have been sufficient light in the eastern kotha for P.W. 2 to note the presence of the appellants who belong to the same village and were not strangers and for P.W. 8 also to note the presence of the culprits.
578 There was sufficient moon light for P.W. 1 and P.W. 7 to see the culprits who are stated to have been moving in and out of the deceased and P.W. 2 during the occurrence.
Therefore, it could not be stated that P.Ws 1, 2, 7 and 8 could not have been in a position to identify any of the culprits.
The learned counsel for the appellants invited our attention to the fact that the learned Sessions Judge has disbelieved the evidence of P. Ws 1 and 7 and the learned Judges of the High Court have not relied on the evidence of P.W. 8 and submitted that P.W. 2 has modulated her evidence to fit in with the case of prosecution and that the evidence of P.W. 2 should not, therefore, be relied upon for basing the conviction of the appellants in this case.
We were taken through the evidence of P.W. 2 by the learned counsel for the appellants, and we are of the opinion that the submission that P.W. 2 has modulated her evidence to fit in with the case of the prosecution is not well founded.
P.W. 2 has stated thus in her evidence : "Raj Narain (A 4), Om Parkash (A 1), Mool Chand (A 6), Anup Singh (A 3), Ram Pal (A 7), Beni Singh (A 9), Raja Ram (A 8), Shiv Gopal (A 2) and Chandra Prakash (A 5) cut the northern door of my Kotha with small hatchets and immediately came in my kotha.
I saw and indentified them in the light of lantern.
I know them from before.
All of them were armed with kanta and spears etc.
Out of them Rampal (A 7), Beni Singh (A 9), Lajjar Ram (A 8), Shiv Gopal (A 2) and Chandra Prakash (A 5) assaulted me with lathis as a result of which I received several injuries.
My husband Mauji Lal had come in my kotha before the entery of the accused persons.
The aforesaid accused persons carried out brutal assault on Mauji Lal with lathis, small hatchets and kanta so much so that he expired.
My brother Ram Shankar (P.W. 8) was sleeping in a verandah having the tin shed.
Some persons had reached there as well.
They were assaulting him.
His voice was audible at my kotha.
The nine accused persons who entered my kotha had started looting my articles and they looted several ornaments and clothes belonging to me.
After having stayed for about 15 20 minutes inside the house of the accused persons went away outside through the northern door of my kotha.
During the mur 579 der and loot I did not hear any alarm from the maidan outside from the atari on the upper storey.
Some accused person fired a gunshot also inside my kotha from a hole of the door before cutting the same.
The pellet of that shot hit the wall but it did not hit me or my husband.
Om Prakash (A 1) had a pistol in his hand.
* * * * * * * * A sufficiently loud noise came out as a result of firing shots with a gun and a pistol. . 2 or 3 minutes after the accused persons went away, My Dewar (husband 's brother) Baijnath (P.W.1) came in my kotha first of all and along with him Ramadhar, Ram Kumar, Banwari and Parasuram (P.W. 7) also came".
P.W.2 has denied the suggestion that unknown persons came to commit dacoity inside the house and that she has falsely implicated the appellants because she could not recognise the real culprits.
We do not see any reason whatsoever for not accepting the evidence of P.W.2 who undoubtedly was in the eastern kotha where the main part of the occurrence has taken place and must have had sufficient opportunity to indentify, with the help of the lantern which was burning, the appellants who were previously known to her and not strangers and she has received as many as 19 injuries during the course of the occurrence which had gone on for about 15 20 minutes.
The noise created during the occurrence had attracted the attention of the Sub Inspector of police C.W.1 who belonged to some other police station and was in another village situate a couple of miles away from the one in which the scene of occurrence is situate.
It is, therefore, not improbable that P.Ws. 1,7 and others had got up on hearing the noise and that P.W.1 had moved near about the house of his brother Mauji Lal where the occurrence was taking place.
P.W. 1 has named all the 18 accused in his evidence as well as in the first information report Exh.
Ka 1 given by him at the police station at about 6.05 A.M on 17.2.1968.
The suggestion made to P.W.1 in cross examination is that as soon as Parsuram (P.W.7) received injuries they became afraid and did not advance ahead and that he did not reach the spot and did not see the occurrence with his own eye.
He had emphatically denied that suggestion.
The learned Sessions Judge has rejected the evidence of P.W. 1 mainly because he had not mentioned the name of 580 any of the accused to any of the villagers who entered the house of the deceased soon after the miscreants left the place and also because he has not sustained any injury and he would not have been left unharmed by the accused if he was anywhere near the scene of occurrence.
Merely because P.W.1 had not sustained any injury during the occurrence and had not mentioned the name of any of the accused to other villagers who entered the house of the deceased soon after the culprits left the place it is not possible to reject the evidence of P.W.1 altogether.
The learned Sessions Judge disbelieved the evidence of P.W.7 having regard to the fact that it is admitted by P.W.1 that P.W.7 belonged to the party of the deceased and that it was "doubtful" whether P.W.7 could have had a sufficient "glimpse" of the miscreants so as to be in a position to identify them.
The learned Sessions Judge has further observed that as soon as P.W.7 received the six gun shot injuries in front of Narbada 's house he would have either fallen down there or returned to his house.
There was sufficient moon light at the time of the occurrence and it is not improbable that P.W.7 who had undoubtedly come near the scene of occurrence would have seen any of the culprits and could not identify them.
Therefore, it is not possible to agree with the learned Sessions Judge that no reliance could be placed on the evidence of P.Ws. 1 and 7.
The learned judges of the High Court have observed in their judgement that P.W. 8 who was undoubtedly present in the house in the tin shed at the time of the occurrence could have seen some of the offenders and that his evidence could not be relied upon because he has intentionally made improvements in his version about the occurrence.
They have also observed that P.W.8 would have helped his sister P.W.2 better if he had run into the abadi and informed other villagers.
We are of the opinion that the reasons given by the learned Judges of the High Court for rejecting the evidence of P.W.8 altogether are not convincing.
We are further of the opinion that there is no reason whatsoever for rejecting the evidence of P.W.s. 1, 7 and 8 of whom P.Ws.7 and 8 are injured witnesses to the extent that their evidence is corroborated by the evidence of P.W. 2 who has been believed by not only the learned Sessions Judge but also by the learned Judges of the High Court.
The evidence of P.Ws. 1, 7 and 8 in so far as it goes to prove the presence of the appellants lends assurance to the evidence of P.W. 2 that the appellants entered the house and assaulted her husband fatally and that some of them caused injuries to her and committed dacoity by looting properties worth about Rs 2,700/ from her house.
581 Thus on consideration of the evidence of P.W.2 and of P.Ws.1, 7 and 8 to the extent that it is corroborated by evidence of P.W.2 and the other circumstances of the case, namely that the door of the eastern kotha of the house of the deceased was found broken open, that the dead body of Mauji Lal was found lying in the eastern kotha of the house and that the boxes had been found broken open and the locks were found lying nearby in the verandah of the house, we are of the opinion that prosecution has proved the case against the appellants satisfactorily and beyond all reasonable doubt and that the conviction of the appellants for the offence under section 396 I.P.C. and the sentence awarded to them by the learned Sessions Judge and confirmed by the learned Judges of the High Court are correct.
We accordingly confirm the conviction and sentence and dismiss the appeals.
P.B.R. Appeals dismissed.

dataset_name: IN-Abs

summary:
The prosecution case against the accused was that on the night of the occurrence, which was a moonlit night, the deceased was sleeping in the western room of his house while his wife and children were sleeping in the eastern room, between the two of which there was a barotha.
In the room in which the wife was sleeping there was a lighted lantern hanging from a peg on the eastern wall of that room about 6 feet high from the floor.
P.W.8.
the brother in law of the deceased was sleeping in a tin shed situate to the west of the western room.
Sometime late in the night the deceased and his wife woke up on hearing some commotion.
They found that a number of armed men entered the eastern room and started breaking open the northern door whereupon the wife of the deceased raised the wick of the lantern to see what was happening.
By the time the deceased entered the eastern room the accused who were armed with pistols and other deadly weapons had entered the room after breaking open the northern door.
The 9 accused persons.
severely assaulted the deceased who as a result of the injuries fell down dead.
The accused also assaulted the wife of the deceased (P.W.2) and her brother (P.W. 8) and ran away with ornaments, cash and clothes.
In the meantime, some of the prosecution witnesses, who heard the commotion went towards the house of the deceased and saw in the moon light the assailants leaving the scene of occurrence.
The first information report was lodged by P.W. 1 in the police station which was six miles away from the village at 6.05 a.m.
On that day.
Before the Sessions Judge the accused contended that the dacoity was committed by an armed gang not known to the prosecution witnesses but that they had been falsely implicated on account of enmity between them and the deceased.
The Sessions Judge found that the first information report had been lodged at the police station without any inordinate delay or that there was 565 nothing on record to show that there was any oblique motive for concocting a false story of the occurrence.
He, however, doubted the veracity of the evidence of P.Ws. 1 and 7, that these witnesses could not have had sufficient glimpse of the miscreants to be able to identify them.
He also disbelieved the evidence of P.W. 8, the brother in law of the deceased.
He, however, believed the evidence of the wife of the deceased (P.W. 2) that she saw the accused in light of the lantern hanging on the eastern wall both when they entered her room as well as when they attacked her husband and thereafter carrying away properties from the house.
The Sessions Judge also accepted the evidence that P.Ws. 2 and 8 were present in the house at the time of the occurrence and since they had received injuries at the hands of the assailants they could see what had taken place and that the light of lantern and moon light were sufficient to identify the assailants.
He, therefore, acquitted some of the accused and convicted the appellants and sentenced them to undergo imprisonment for life.
On appeal the High Court did not think it safe to rely on any part of the evidence of P.W. 8 but believed the evidence of P.W. 2 on the ground that she had given straight forward evidence without an attempt at making any improvements to fit it with the testimony of the other prosecution witnesses.
the High Court confirmed the conviction and sentences awarded to the appellants.
Dismissing the appeals, ^ HELD: There is no substance in the contention that the first information report was ante timed; nor is there any requirement in section 157 of the Code of Criminal Procedure that the first information report should be despatched forthwith or that the time of despatch must be noted thereon.
The Sessions judge found that the first information report had been lodged at the police station without any inordiate delay and that no oblique motive for concocting a false story of the occurrence in the first information report had been established.
If the police had intended to obtain a concocted report, it is more likely that they would have obtained it from P.W. 8, who was in the house at the time of occurrence than take it from P.W. 1 who went there on hearing shouts and sounds.
[573 B D; 575 B] The evidence on record shows that the formal first information report was recorded in the police station at the earliest on the morning of the occurrence, that is, at 6.05 a.m.
This had been corroborated with the evidence of P.W. 11, Sub Inspector of Police, who reached the village which is about 6 miles away at 8 a.m. and immediately took up the investigation.
[575 B D; 575 B] There is no substance in the contention that, having regard to the size of the eastern room in which the dead body was found, it was not probable that the 9 appellants armed with various weapons could have all been present in it at the same time.
The room was sufficiently big and the first information report stated that the culprits were moving in and out of the house at the time of the occurrence.
It was not likely that all of them were in the room at 566 the same time and it was not improbable that they were seen by P.W. 2 at different times during the occurrence which went on for some time.
[575 F H] Although the explanation of the prosecution for its failure to examine the doctor who attended the injured persons was not satisfactory the fact that the witnesses had stated that they sustained injuries during the occurrence was not disputed.
Therefore, more non examination of the doctor for proving the injuries is not fatal to the prosecution case.
[576 C E] From the mere fact that none of the looted properties had been recovered from any of the appellants it could not be said that they were not the culprits in the case.
On the contrary, there is enough incriminating evidence against them.
[576 G H] There is no substance in the contention that there was no sufficient light in the room to identify the assailants.
Though, the prosecution had not got the lantern identified by P.W. 2, P.W.11 testified that the lantern was hanging on a peg on the eastern wall of the room and was in working condition.
This fact was mentioned in the first information report.
P.W.2 woke up on hearing the noise and raised the wick of the lantern.
It was a moon lit night.
All this apart it was not the case of the appellants that there was no lantern in the room at all.
Nor was it suggested that the night was cloudy and visibility was poor.
[577 H; B F] The submission that P.W.2 had modulated her evidence to fit in with the prosecution case is not well founded.
She had denied the suggestion that unknown persons came to commit decoity inside the house and that she had falsely implicated the appellants because she could not recognise the real culprits.
She was undoubtedly in the eastern room which was the scene of the occurrence and had sufficient opportunity to recognise the assailants, who were known to her.
During the occurrence she herself sustained many injuries.
[579 D E] Merely because P.W. I had not sustained any injury during the occurrence and had not mentioned the names of any of the accused to the villagers who entered the house soon after the occurrence, it is not possible to reject his evidence altogether.
[580 A B] The Sessions Judge erred in rejecting the evidence of P.Ws. 1 and 7 and the High Court erred in rejecting the evidence of P.W. 8.
There is no reason whatsoever for rejecting the evidence of these witnesses to the extent that their evidence was corroborated by the evidence of P.W. 2 whose evidence had been believed by both the courts below.
The evidence of P.Ws. 1, 7 and 8 in so far as it goes to prove the presence of the appellants at the scene of the occurrence lends assurance to the evidence of P.W.2 that the appellants entered the house and assaulted her husband fatally and that some of them caused injuries to her and committed decoity.
The prosecution had proved the case against the appellants beyond all reasonable doubt.
[580 D H] 567


judgement:
tition Nos. 232 & 233 of 1983.
(Under article 32 of the Constitution of India) M.S. Joshi, N.D. Garg and Rajiv Kumar Garg for the Petitioners.
D.D. Sharma for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, CJ.
An important question arises for consideration in these two writ petitions.
That question is whether a delay exceeding two years in the execution of a sentence of death must be considered sufficient for setting aside that sentence.
Learned counsel who appears on behalf of the petitioners relies upon a decision of this Court in T.V. Vatheeswaran vs The State of Tamil Nadu(1) and contends that since more than two years have passed since the petitioners were sentenced to death by the Trial Court, they are entitled to demand that the said sentence should be quashed and substituted by the sentence of life imprisonment.
The petitioners, Sher Singh and Surjit Singh, and one Kuldip Singh were convicted under section 302 read with section 34 of the 586 Penal Code and were sentenced to death by the learned Sessions Judge, Sangrur, on November 26, 1977.
By a judgment dated July 18, 1978 the High Court of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to life imprisonment but upheld the sentence of death imposed upon the petitioners.
The High Court also imposed a sentence of fine of Rs. 5000 on Kuldip Singh and a fine of Rs. 5000 on each of the petitioners.
Special Leave Petition (Crl.) No. 1711 of 1978 which was filed by the petitioners against the judgment of the High Court was dismissed by this Court on March 5, 1979.
The petitioners then filed a Writ Petition in this Court challenging the validity of section 302 of the Penal Code.
That petition was dismissed on January 20, 1981.
Review Petition No. 99 of 1981 filed by the petitioners against the dismissal of their S.L.P. was dismissed by this Court on March 27, 1981.
The petitioners filed yet another petition under article 32 of the Constitution, this time challenging the validity of section 34 of the Penal Code.
That petition was dismissed on August 24, 1981.
After failing in these seemingly inexhaustible series of proceedings, the petitioners filed these two writ petitions on March 2, 1983, basing themselves on the decision rendered by Justice Chinnappa Reddy and Justice R.B. Misra on February 16, 1983 in Vatheeswaran.
The question which arose for consideration in Vatheeswaran is formulated by Chinnappa Reddy, J., who spoke for the Court, in these terms: "But the question is whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, is it not open to a court of appeal or a court exercising writ jurisdiction, in an appropriate proceeding to take note of the circumstance when it is brought to its notice and give relief where necessary ?" This question arose on the following facts as stated in the judgment of Brother Chinnappa Reddy: (1) The prisoner was rightly sentenced to death.
(2) He was the 'arch villain of a villainous piece ' and the brain behind a cruel conspiracy to impersonate Customs officers, pretend to question unsuspecting visi 587 tors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims, steal their cash and jewels and finally murder them.
The plan was ingeniously fiendish and the appellant was its architect.
(3) Since January 19, 1975 when the Sessions Judge pronounced the sentence of death, the prisoner was kept in solitary confinement contrary to the decision of this Court in Sunil Batra vs Delhi Administration.
(1) Before that, he was a 'prisoner under remand ' for two years.
On these facts, the argument advanced in this Court on behalf of the prisoner was that taking away his life after keeping him in jail for ten years, eight of which were spent in illegal solitary confinement, is a gross violation of the fundamental rights guaranteed by Article 21 of the Constitution.
In Vatheeswaran, our learned Brethren have drawn sustenance to their conclusion from one judgment of the Federal Court of India, five judgments of this Court, one of the Privy Council and one of the U.S. Supreme Court.
As to the meaning and implications of Article 21 of the Constitution, they have relied upon the decisions of this Court in Sunil Batra,(1) Maneka Gandhi,(2) Bachan Singh, (3) Hussainara Khatoon (4) and Hoskot.(5) The judgment in Bhuvan Mohan Patnaik (6) and Prabhakar Pandurang Sangzgiri (7) have been relied upon to show that prisoners who are under a sentence of death and detenus are entitled to certain fundamental rights.
In Piare Dusadh, (8) the Federal Court was considering appeals against the judgments of the High Courts of Allahabad, Madras, Nagpur and Patna, under the special Criminal Courts Ordinance II of 1942.
In Case Nos.
XLI and XLII, the High Court of Patna had 588 confirmed the sentence of death passed on the appellants by the Special Judge.
It was urged before the Federal Court that the death sentence imposed in those cases should be reduced to transportation for life on account of the time that had elapsed since the sentences were first pronounced.
The Court observed: "It is true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under threat of execution, and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the validity of the sentences themselves.
We do not doubt that this court has power, where there has been inordinate delay in executing death sentence in cases which come before it, to allow the appeal in so far as the death sentence is concerned and substitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally imposed.
But this is a jurisdiction which very closely entrenches on the powers and duties of the executive in regard to sentences imposed by courts.
It is a jurisdiction which any court should be slow to exercise.
We do not propose ourselves to exercise it in these cases.
Except in Case No. XLVII (in which we are commuting the sentence largely for other reasons as hereafter appears), the circumstances of the crimes were such that if the death sentence which was the only sentence that could have been properly imposed originally, is to be commuted, we feel that it is for the executive to do so.
" It was urged before the Federal Court that in England, when cases in which death sentence has been imposed are allowed to be taken to the House of Lords on account of some important legal point, the consequential delay in finally disposing of the case was treated as a ground for the commutation of the death sentence and that a similar course might well be adopted in India in cases in which substantial questions of law as to the interpretation of the Constitution Act had to be considered by the Federal Court.
This argument was rejected on the ground that these were matters primarily for the consideration of the executive.
589 In Case No. XLVII, which was one of the cases before the Federal Court, the appellant was convicted by a special Judge of the offence of murder and was sentenced to death on September 30, 1942.
The Allahabad High Court confirmed the sentence of death but the Federal Court commuted that sentence to transportation of life.
As is evident from the parenthetical portion of the passage extracted above, this was done "largely for other reasons", that is to say, for reasons other than that a long delay had intervened after the death sentence was imposed.
The Federal Court commuted the death sentence on the ground that the sentence of transportation for life was more appropriate in the circumstances of the case.
They added that the appellant was awaiting the execution of his death sentence for over a year.
It is thus clear that Piare Dusadh is not an authority for the proposition that if a certain number of years have passed since the imposition of a death sentence, that sentence must necessarily be commuted to life imprisonment.
In Ediga Anamma(1) this Court was hearing an appeal against the sentence of death imposed upon the appellant.
Finding that the appellant was a young woman of 24 who was flogged out of her husband 's house by the father in law, this Court reduced her sentence to life imprisonment for a variety of factual reasons peculiar to the case, like her entanglement into a sex net, that she had a young boy to look after and so on.
Speaking for the Court, Krishna Iyer, J. added: "What may perhaps be an extrinsic factor but recognised by the Court as of humane significance in the sentencing context is the brooding horror of 'hanging ' which has been haunting the prisoner in her condemned cell for over two years.
The Sessions Judge pronounced the death penalty on December 31, 1971, and we are now in February 1974.
This prolonged agony has ameliorative impact according to the rulings of this Court." Piare Dusadh was regarded by the Court as a leading case on this point.
We have already adverted to the circumstances in which the death sentence was commuted to transportation for life in that case.
590 In the other cases referred to in Vatheeswaran, (supra) this Court was hearing appeals against the judgments of High Courts confirming the sentence of death.
In those cases, the sentence of death was commuted into life imprisonment by this Court by reason of the long interval which had elapsed either since the imposition of the death sentence or since the date of the occurrence.
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, consequent upon the dismissal of the prisoner 's Special Leave Petition or Appeal by this Court.
Traditionally, subsequent events are taken into account in the area of civil law.
There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable.
Undoubtedly, principles analogous to Res judicata govern all judicial proceedings but when new situations emerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already.
That final decision is not a decision on new facts.
Courts are never powerless to do justice, that is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship.
That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justiciae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court.
Some of us dealing with this case have been parties to decisions directing, in appropriate cases, that the death sentence shall not be executed by reason of supervening circumstances.
591 In Vatheeswaran, the prisoner was under the sentence of death for over eight years and was in the jail for two years before that.
After the death sentence was pronounced upon him, he was kept in solitary confinement, contrary to this Court 's ruling in Sunil Batra.
These supervening considerations, inter alia, were unquestionably germane to the decision whether the death sentence should be allowed to be executed.
The Court took them into account and commuted the sentence to life imprisonment.
Like our learned Brethren, we too consider that the view expressed in this behalf by Lord Scarman and Lord Brightman in the Privy Council decision of Neol Riley (1) is, with respect, correct.
The majority in that case did not pronounce upon this matter.
The minority expressed the opinion that the jurisprudence of the civilized world has recognized and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading: Sentence of death is one thing; sentence of death followed by lengthy imprisonment prior to execution is another.
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 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 fact that it is permissible to impose the death sentence in appropriate cases does not, however, lead to the conclusion that the sentence must be executed in every case in which it is upheld, regardless of the events which have happened since the imposition or the upholding of that sentence.
The inordinate delay in the execution of the sentence is one circumstance which has to be taken into account 592 while deciding whether the death sentence ought to be allowed to be executed in a given case.
In his sociological study called 'Condemned to Die, Life Under Sentence of Death ', Robert Johnson says: "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 rare, for the man who is "civilly dead" is often 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 live 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 person 's adjustment.
The death row inmate must achieve equilibrium with few coping supports.
In the process, he must somehow maintain his dignity and integrity" (page 4) "Death row is a prison within a prison, physically and socially isolated from the prison community and the outside world.
Condemned prisoners live twenty three and one half hours alone in their cells. " (page 47) The author proceeds to say: "Some death row inmates, attuned to the bitter irony of their predicament, characterize their existence as a living death and themselves as the living dead.
They are speaking symbolically, of course, but their imagery is an appropriate description of the human experience in a world where life is so obviously ruled by death.
It takes 593 into account the condemned prisoners ' massive deprivation of personal autonomy and command over resources critical to psychological survival; tomblike setting, marked by indifference to basic human needs and desires; and their enforced isolation from the living, with the resulting emotional emptiness and death." (page 110) A prisoner who has experienced living death for years on end is therefore entitled to 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.
It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment.
(See Prabhakar Pandurang Sangzgiri, Bhuvan Mohan Patnaik and Sunil Batra).
It is a logical extension of the self same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair, Article 21 stands like a sentinel over human misery, degradation and oppression.
Its voice is the voice of justice and fairplay.
That voice can never be silenced on the ground that the time to heed to its imperatives is long since past in the story of a trial.
It reverberates through all stages the trial, the sentence, the incarceration and finally, the execution of the sentence.
In cases too numerous to mention, this Court has released undertrial prisoners who were held in jail for periods longer than the period to which they could be sentenced, if found guilty: this jurisdiction relates to pre trial procedure.
In Hussainara Khatoon (supra) and Champalal(1), speedy trial was held to be an integral part of the 594 right conferred by Article 21: this jurisdiction relates to procedure during the trial.
In Prabhakar Pandurang Sangzgiri, the Court upheld the right of a detenu, while in detention, to publish a book of scientific interest called 'Inside the Atom '; in Bhuvan Mohan Patnaik, it was held that prisoners had to be afforded reasonable human conveniences and that the live wire mechanism fixed on prison walls in pursuance of administrative instructions could not be justified as reasonable if it violated the fundamental rights of the prisoners; in Sunil Batra, solitary confinement and bar fetters were disapproved as normal modes of securing prisoners.
These three cases are illustrative of the Court 's jurisdiction to review prison regulations and to regulate the treatment of prisoners while in jail.
And, last but not the least, as we have stated already, death sentences have been commuted to life imprisonment by this Court either while disposing of Special Leave Petitions and Appeals or while dealing with Writ Petitions filed after the unsuccessful termination of the normal processes of litigation: this jurisdiction relates to the execution of the sentence.
This then is the vast sweep of Article 21.
What we have said above delineates the broad area of agreement between ourselves and our learned Brethren who decided Vatheeswaran.
We must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons why.
Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But, according to us, no hard and fast rule can be laid down as our learned Brethren have done that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death".
This period of two years purports to have been fixed in Vatheeswaran after making "all reasonable allowance for the time necessary for appeal and consideration of reprieve".
With great respect, we find it impossible to agree with this part of the judgment.
One has only to turn to the statistics of the disposal of cases in High Court and the Supreme Court to appreciate that a period far exceeding two years is generally taken by those Courts together for the disposal of matters involving even the death sentence.
Very often, four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the Special Leave Petition or an Appeal by the Supreme Court in that matter.
This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed 595 under Article 72 or article 161 of the Constitution or the time which the Government takes to dispose of applications filed under sections 432 and 433 of the Code of Criminal Procedure.
It has been the sad experience of this Court that no priority whatsoever is given by the Government of India to the disposal of petitions filed to the President under Article 72 of the Constitution.
Frequent reminders are issued by this Court for an expeditious disposal of such petitions but even then the petitions remain undisposed of for a long time.
Seeing that the petition for reprieve or commutation is not being attended to and no reason is forthcoming as to why the delay is caused, this Court is driven to commute the death sentence into life imprisonment out of a sheer sense of helplessness and frustration.
Therefore, with respect, the fixation of the time limit of two years does not seem to us to accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive.
Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment.
There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated.
A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live.
The Vinoba Bhaves, who undertake the "Prayopaveshana" do not belong to the world of ordinary mortals.
Therefore, it is understandable that a convict sentenced to death will take recourse to every remedy which is available to him under the law, to ask for the commutation of his sentence, even after the death sentence is finally confirmed by this Court by dismissing his Special Leave Petition or Appeal.
But, it is, at least relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice.
It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification.
Stay orders are obtained in those proceedings and then, at the end 596 of it all, comes the argument that there has been prolonged delay in implementing the judgment or order.
We believe that the Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it.
If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation And then, the rule of two years will become a handy tool for defeating justice.
The death sentence should not, as far as possible, be imposed.
But, in that rare and exceptional class of cases wherein that sentence is upheld by this Court, the judgment or order of this Court ought not to be allowed to be defeated by applying any rule of thumb.
Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.
The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula as a matter of "quod erat demonstrandum".
In the case before us, the sentence of death was imposed upon the petitioners by the learned Sessions Judge, Sangrur, on November 26, 1977.
It was upheld by the High Court on July 18, 1978.
This Court dismissed the Special Leave Petition filed by the petitioners on March 5, 1979.
The matter is pending in this Court since then in one form or another, by reason of some proceeding or the other.
The last of the writ Petitions filed by the petitioners was dismissed by this Court on August 24, 1981.
We do not know why the sentence imposed upon the petitioners has not been executed for more than a year and half.
The Government of Punjab must explain that delay.
We are of the opinion that, in the instant case, the sentence of death imposed upon the petitioners by the Sessions Court and which was upheld by the High Court, and this Court, cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence.
On the date when these Writ Petitions came before us, we asked the learned counsel for the petitioners to argue upon the 597 reasons why, apart from the dealy caused in executing the death sentence, it would be unjust and unfair to execute that sentence at this point of time.
Every case has to be decided upon its own facts and we propose to decide this case on its facts.
After hearing the petitioners ' counsel, we will consider the question whether the interests of justice require that the death sentence imposed upon the petitioners should not be executed and whether, in the circumstances of the case, it would be unjust and unfair to execute that sentence now We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 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 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 Cri.
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 5 to 8 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 preconditioned by the duty to be fair and quick.
Delay defeats justice.
On the question as to whether the death sentence should not be allowed to be executed in this case, we shall pronounce later after hearing the parties.
In the meanwhile, notice will go to the Government of Punjab.
Order accordingly.

summary:
The petitioners were convicted under section 302 read with section 34 I.P.C. and were sentenced to death on November 26, 1977.
The High Court upheld the conviction and sentence on July 18, 1978.
The petitioners ' Special Leave Petition against the judgment of the High Court was dismissed on March 5, 1979 and the Review Petition against the dismissal of the Special Leave Petition was also dismissed on March 27, 1981.
The petitioners ' successive writ petitions challenging the validity of sections 302 and 34 I.P.C. were dismissed on January 20, 1981 and August 24, 1981 respectively.
The present writ petitions were filed on March 2, 1983 on the basis of the decision in T.V. Vatheeswaran vs State of Tamil Nadu which was rendered on February 16, 1983.
The contention on behalf of the petitioners was that more than two years had elapsed since they were sentenced to death by the trial court and therefore they were entitled in terms of the ruling in vatheeswaran to demand that the said sentence should be quashed and substituted by the sentence of life imprisonment. ^ HELD : Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But no hard and fast rule that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death" can be laid down as has been done in Vatheeswaran.
[594 E F] (i) No absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the 583 sentence must be substituted by the sentence of life imprisonment.
There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated.
A convict is entitled to pursue all remedies lawfully open to him and get rid of the sentence of death imposed upon him and his taking recourse to them to ask for the commutation of his sentence even after it is finally confirmed by this Court is understandable.
But, it is, at least, relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice.
It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification.
Stay orders are obtained in those proceedings and then, at the end of it all, comes the argument that there has been prolonged delay in implementing the judgment or order.
The Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it.
If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation.
Further, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition if the death sentence is vacated, re matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed.
The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula as a matter of "quod erat demonstrandum." [595 D H; 596 AE] T.V. Vatheeswaran vs State of Tamil Nadu.
overruled.
(ii) The period of two years purports to have been fixed in Vatheeswaran after making "all reasonable allowance for the time necessary for appeal and consideration of reprieve.
" It is not possible to agree with this part of the judgment in that case.
The fixation of the time limit of two years does not accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive.
A period far exceeding two years is generally taken by the High Court and this Court together for the disposal of matters involving even the death sentence.
Very often four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the Special Leave Petition or an Appeal by this Court in that matter.
This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed under article 72 or article 161 of the Constitution or the time which the Government takes to dispose of application filed under sections 432 and 433 of the Code of Criminal Procedure.
[594 F H; 595 AC] (iii) Piare Dusadh is not an authority for the proposition that if a certain number of years have passed since the imposition of a death sentence, 584 that sentence must necessarily be commuted to life imprisonment.
In that case the Federal Court commuted the sentence of death to sentence of transportation for life for reasons other than that a long delay had intervened after the death sentence was imposed.
In Ediga Anamma, Piare Dusadh was regarded as a leading case on the point.
In the other judgments of this Court referred to in Vatheeswaran, this Court was hearing appeals against judgments of High Courts confirming the sentence of death.
However, the 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.
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.
[589 B D H; 590 A D] Piare Dusadh, [1944] F.C.R. Vol.6 61; Ediga Anamma; , ; Sunil Batra vs Delhi Administration, ; ; Maneka Gandhi [1978] 2 S.C.R. 621; Bachan Singh, , Hussainara Khatoon; , ; Hoskot; , ; Bhuvan Mohan Patnaik; , ; and Prabhakar Pandurang Sangzgiri; , referred to.
(iv) 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.
It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment.
It is a logical extension of the self same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair.
A prisoner who has experienced living death for years on end is entitled to 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.
[593 B G] Bhuvan Mohan Patnaik; , ; Prabhakar Pandurang Sangzgiri; , ; and Sunil Batra vs Delhi Administration; , referred to.
(v) Traditionally, subsequent events are taken into account in the area of civil law.
There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable.
Principles analogous to res judicata govern all judicial proceedings but when new situations emerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already.
That final decision is not a decision on new facts.
Courts are never powerless to do justice, that 585 is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship.
That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justiciae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court.
[590 E H] In the instant case, the sentence of death imposed upon the petitioners by the Sessions Court and which was upheld by the High Court and this Court cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence.
Counsel for the petitioners have been asked to argue upon the reasons why, apart from the delay caused in executing the death sentence, it would be unjust and unfair to execute that sentence at this point of time.
The question will be decided after hearing the parties.
[596 G H; 597 A B] 2.
Petitions filed under articles 72 and 161 of the Constitution and under sections 432 and 433, Cr.
P.C. must be disposed of expeditiously.
A self imposed rule should be followed by the executive authorities that every such petition shall be disposed of within a period of three months from the date on which it is received.
[597 C]