MORE THAN two years after their mercy petitions were rejected by the President, the Bombay High Court on Monday commuted the death sentence of two convicts for the 2007 kidnapping, rape and murder of a BPO employee in Pune and sentenced them to life imprisonment, observing that the delay in their execution was “undue, inordinate and unreasonable”.
The convicts were to be executed on June 24 at Yerawada Central Prison, but on June 21, the High Court stated that the execution of the men, who had moved the court urging it to quash their execution warrants and commute their death sentence to life imprisonment, “shall not take place” until further orders of the court.
The HC has now handed a 35-year imprisonment sentence to the two, which includes the period they have already spent in jail. The court observed that in the mercy petitions filed by the two death row convicts, letters exchanged between different government departments bore the words “most urgent” and “death penalty” and yet the matter “did not receive the attention it deserved”.
“We find that there has been undue and unexplained delay both by Respondent No 3 (Inspector General of Prisons, Maharashtra) and Respondent No 1 (Union of India) in processing the mercy petitions,” the judges noted.
“Out of this period of five years, mercy petitions were pending for about two years and for period thereafter no proceedings were pending. We find that delay in the present matters could have been easily avoided and the mercy petitions and the final execution could have been dealt with in sense of urgency,” wrote Justice B P Dharmadhikar and Justice Swapna Joshi in their 106-page judgment.
The convicts had moved the HC stating that they had suffered “undue and avoidable delay of 1,509 days in execution of death sentence, solitary confinement lasting more than seven years…” Their lawyer, Yug Chaudhry, argued that the delay of two years in the issuance of execution warrant after their mercy petition was rejected, was “unprecedented” in India.
Countering the petitioner’s argument of delay in deciding their mercy petitions and issuance of execution warrant, Advocate General Ashutosh Kumbhakoni had argued that it was wrong to say the government had gone round in circles. Answering the court’s query on whether the delay was on part of a constitutional authority or the executive, Kumbhakoni said, “Ultimately, the mercy petition has to be decided by the Governor and the President, not the government. For enabling them to act on the aid and advice of the ministry, the file is processed in Mantralaya. It is legally not possible to dissect the two actions.”
“Here we have to consider the rights of a convict to be hanged and he is not concerned with the constitutional functionary which has caused delay or contributed to it. When the protection accorded by Article 21 of the Constitution of India is at stake, the Executive, Court of Law or the Governor/President stand at same pedestal. Thus, we find that undue or avoidable delay in execution of death penalty by any arm of the State would be against his fundamental right. Extra or additional punishment resulting from avoidable delay is unconstitutional in all circumstances and contingencies. Quantum or period thereof is also not material,” the High Court observed.
The victim, who hailed from Gorakhpur, had joined a BPO in December 2006, and stayed with her sister and brother-in-law. At 10 pm on November 1, 2007, the last day of her notice period with the company, one of the convicts, a driver, and his friend had picked her up in the office cab.
When she did not return by 10 am the next morning, her brother-in-law lodged a missing complaint with the Chatushrungi police station.
Police found her body on the morning of November 2, 2007, at Gahunje, about 35 km from Pune. The two men were arrested.
They were convicted and sentenced to death by a sessions court in Pune in March 2012. The sentence was upheld by the HC in September 2012 and subsequently by the Supreme Court in May 2015. The Governor had rejected their mercy petitions in April 2016 and the President had rejected their mercy pleas in June 2017.
After the court’s decision commuting the death sentence of the two convicts, the woman’s brother-in-law told The Indian Express, “We are disheartened because of this development. The court may have found reasons to show leniency to these people, but we firmly believe that they do not deserve any mercy. It was a premeditated, inhuman and brutal act. They had tried four ways to kill my sister-in-law. As people talk about the rights of the convicts, what about the victim’s right to justice? These people will be spending the rest of their lives in prison. That is longer than the time they allowed her to live.”
He added, “We request the state government and particularly Chief Minister Devendra Fadnavis to take this up and file an appeal at the appropriate forum. If the maximum possible punishment is given in the case, the sense of justice will prevail not just for family but also among women in general.”
Inputs from Sushant Kulkarni in Pune