HOLIRAM BORDOLOI Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition, the petitioner is questioning the legality of the rejection of the mercy petition filed by him before the Governor of Assanm and President of India after keeping it in cold freeze for 9 years and 3 months. He is now facing execution of the death sentence imposed upon him by the learned Sessions Judge, Morigaon in Sessions Case No. 47(A) of 1999 as ultimately confirmed by the Apex Court in its judgment and order dated 8-4-2005 passed in Criminal Appeal No. 1063 of 2004. He was convicted under U/s 147/148/436/326/302 read with Section 149 IPC.

(2.) Shorn of unnecessary details, the undisputed facts on record may be noticed at the outset. On 18-4-2005 the petitioner preferred a mercy petition to both the Governor of Assam and the President of India, which were forwarded to the concerned authorities by the Superintendent of Jail, Nagaon. It was, however, only on 15-7-2013 communicated to him through the letter dated 2-7-2013 that his mercy petition was rejected by the Governor of Assam. On 25-7-2014, he was supplied with copy of the letter dated 14-7-2014 of the Ministry of Home Affairs, Government of India informing him that his mercy petition had been rejected by the President of India. It, therefore, took a period of 9 long years and 3 months for both the functionaries to reject his mercy petition. The grievance of the petitioner is that the inordinate delay in carrying out the death sentence and/or the inordinate delay in disposing of his mercy petition has compelled him to move this Court in this writ petition for converting his death sentence to life imprisonment as has been done by the Apex Court from time to time in the case of similarly situated convicts in the death row.

(3.) Unfolding his submissions, Mr. AK Bhattacharya, the learned senior counsel for the petitioner, contends that the petitioner and his family have been undergoing a living hell in the death row not knowing whether he would live or die or see another day ever since his death sentence was confirmed by the Apex Court, while his mercy petition was pending before the Governor of Assam. According to the petitioner, due to such mental torture and pain, he developed kidney stones and coronary heart disease and has already suffered two heart attacks during his incarceration in the death row. The learned senior counsel maintains that the extraordinary and unjustified delay in deciding his mercy petition is entirely attributable to the Government of Assam, the Ministry of Home Affairs, the Office of the Raj Bhavan, Assam as well as the President of India, for which the petitioner cannot be faulted with in any manner; the callous attitude of these authorities and their grossly negligent act in sitting over his mercy petition for years and years altogether warrant commutation of his death sentence to one of life imprisonment. In fact, according to the learned senior counsel, the petitioner has fulfilled all the criteria laid down by the Apex Court in TV Vatheeswaran v. State of Tamil Nadu, 1983 2 SCC 68 inasmuch as he never filed a review, curative of revision petition, and his mercy petition was filed immediately after his SLP was dismissed (ten days after the dismissal of the SLP). It is argued by the learned senior counsel that the execution of his death sentence after 11 years of his incarceration in the death row is violative of his fundamental rights guaranteed under Articles 14 and 21 of the Constitution: a procedure which deprives a convict of his life or personal liberty must be fair, just and reasonable and not fanciful. The learned senior counsel points out that the petitioner is not challenging, and, in fact and in law, cannot challenge the legality of his conviction and sentence, which has attained finality and this Court is equally under an obligation to refrain from examining the gravity of the offences committed by the petitioner. The learned senior counsel takes us to the various decisions of the Apex Court and High Courts such as Sher Singh and others v. State of Punjab, 1983 2 SCC 344; Rajendra Prasad v. UP, 1979 3 SCR 78; Smt. Triveniben v. state of Gujarat, 1989 1 SCC 678; Jagdish v. State of MP, 2009 9 SCC 495; TV Vatheeswaran ; Shatrugh Chauhan v. Union of India, 2014 3 SCC 1; V. Sriharan v. Union of India, 2014 4 SCC 242; Navjeet Kaur v. State of NCT of Delhi & another, Curative Petition (Criminal) No. 88 of 2013 (decided on March 31, 2014); K.P. Mohd. V. State of Kerala, 1984 Supp1 SCC 684; Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, 1985 1 SCC 275; Madhu Mehta v. Union of India, 1989 4 SCC 62, Shivaji Jaysingh Babar v. State of Maharashtra, 1991 4 SCC 375; Daya Singh v. Union of India, 1991 3 SCC 61, to fortify his submissions. Dr. YM Choudhury, the learned counsel for the petitioner, supplementing the arguments of the learned senior counsel, draws our attention to a number of decisions of the Apex Court and the High Courts, and contends that instances are legion where death sentences were quashed in most heinous crimes due to delay in disposal of mercy petitions for a period ranging from 2 to 14 years and where the gravity of the crimes was not considered and commuted the death sentence to life imprisonment. He, particularly, points out the following cases:- Munawar Haran Singh Shah v. State of Mahashtra, 1983 3 SCC 354; K.P.Moammed ; Javed Abdul Hamid Pawala ; Triveniben ; Daya Sing ; Shivaji Singh Babar ; Madhu Mehta ; Jumman Khan v. State of U P, 1991 1 SCC 752; Devendra Pal Singh Bhullar v. UOI, 2013 6 SCC 253; Shatrughan Chauhan ; Suresh & another v. UOI, Writ petition (Crl) No. 132 of 2013, etc. where the Apex Court and various High Courts quashed death sentences and commuted them to life imprisonment and submits that as the petitioner is equally situated with the convicts in those cases, his death sentence should be set aside and commuted it to life imprisonment.