Judgment

CHINNAPPA REDDY, J.:- A prisoner condemned to death over eight years ago claims that it is not lawful to hang him now. Let us put the worst against him first. He was the principal accused in the case and, so to say, the arch-villain of a Villainous piece. He was the brain behind a cruel conspiracy to impersonate Customs Officers, pretend to question unsuspecting visitors 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 the architect. There is no question that the learned Sessions Judge very rightly sentenced him to death. But that was in January 1975. Since then he has been kept in solitary confinement, quite contrary to our ruling in Sunil Batra v. Delhi Administration, (1979) 1 SCR 392: Before that he was a prisoner under remand for two years. So, the prisoner claims that to take away his life after keeping him in jail for ten years, eight of which in illegal solitary confinement, is a gross violation of the fundamental right guaranteed by Article 21 of the Constitution. Let us examine his claim. First let us get rid of the cobwebs of prejudice. Sure, the murders were wicked and diabolic. The appellant and his friends showed no mercy to their victims. Why should any mercy be shown to them? But, gently we must remind ourselves it is not Shylocks pound of flesh that we seek, nor a chilling of the human spirit. It is justice to the killer too and not justice untempered by mercy that we dispense. Of course, we cannot refuse to pass the sentence of death where the circumstances cry for it. 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?

2. Before adverting to the constitutional implications of prolonged delay in the execution of a sentence of death, let us refer to the judicial attitude towards such delay in India and elsewhere.

3. In Piare Dusadh v. Emperor, AIR 1944 FC 1, the Federal Court of India took into consideration the circumstance that the appellant had been awaiting the execution of the death sentence for over a year to alter the sentence to one of transportation for life.

4. In Ediga Anamma v. State of Andhra Pradesh, (1974) 3 SCR 329 Krishna Iyer and Sarkaria, JJ. observed that "the brooding horror of hanging which has been haunting the prisoner in her condemned cell for over two years" had an "ameliorative impact" and was "a factor of humane significance in the sentencing context."

5. In State of U. P. v. Lalla Singh, AIR 1978 SC 368, Gupta and Kailasam, JJ., were dealing with a case of gruesome murder of three persons, the head of one of whom was severed. The learned Judges, while of the view that the Sessions Judge was perfectly in order in imposing the sentence of death, thought that as the offences had been committed more than six years ago, the ends of justice did not require the sentence of death to be confirmed.

6. In Bhagwan Bux Singh v. State of U. P., AIR 1978 SC 34, the sentence of death was commuted to imprisonment for life by Murtaza Fazal Ali and Kailasam, JJ., having particular regard to the fact that the sentence of death had been imposed more than two and a half years ago.

7. In Sadhu Singh v. State of U. P., AIR 1978 SC 1506, Sarkaria, Sen, JJ. and one of us (Chinnappa Reddy, J.) took into account the circumstance that the appellant was under spectre of the sentence of death for over three years and seven months to alter the sentence of death to one of imprisonment for lif