The Bombay High Court on Tuesday reserved its order on petitions moved by two men, sentenced to death in the 2007 rape and murder of a BPO employee in Pune, urging it to strike down the rejection of their mercy petitions and commute their death sentences.
In their petitions, Purushottam Borate (37) and Pradeep Kokade (30), claimed they had suffered “undue and avoidable delay of 1,509 days in the execution of death sentence, solitary confinement lasting more than seven year”. Earlier, their lawyer, Yug Chaudhry, had argued that the delay of two years in issuance of their execution warrant, after their mercy petition was rejected, was unprecedented in India.
The execution of Borate and Kokade was scheduled for June 24. However, last week a bench of Justices B P Dharmadhikari and Swapna Joshi had asked the state government not to proceed with the execution until further orders.
On Tuesday, Chaudhry argued that on January 25, 2016, a note was sent by the government to the Governor, who was to decide on their mercy pleas.
As per the procedure, the note is supposed to include details of all three judgments by three courts — the sessions court, high court and Supreme Court —- in the case so far.
Chaudhry argued that superintendent of Pune’s Yerwada Jail had sent the evidence record and judgment of the sessions court two days after the note was sent, further claiming that the Governor may not have considered the sessions court judgment while deciding on the mercy plea.
He added that the guidelines state, the Governor has to consider the role of the accused and for that purpose, he has to go through the evidence and judgment of the sessions court and not the judgments of the High court and Supreme Court. He further added that it is from the evidence and judgment of the trial court, one can decide for the role of the accused.
Chaudhry also cited a judgment by a three-judge bench of Supreme Court in Shatrughan Chauhan versus the Union of India, which states that the jail authorities must sent all the records, including the three judgments to the Governor and President while deciding on the mercy petition.
Chaudary argued that the government had not followed the mandate for issuing the execution warrant. He told court that an execution date has to be fixed by the trial court, but it is the responsibility of the state government to make necessary applications and make effort of fixing a date.
But in this case, he said, the government has just sent letters to the trial court to decide on the date.
Chaudhry said he was relying on four grounds — delay of four year in execution of death sentence, “non-application of mind” in adjudication of applications of the mercy petitions by executive authorities, solitary confinement for seven-and-half years and illegal execution warrant as no prior notice was served on the convicts.
Advocate General Ashutosh Kumbhakoni, appearing for state government, told the court that while deciding on the petitions it should appreciate that it is the judiciary which has come to the conclusion if both the accused should be awarded death sentences.