Judgment

O.CHINNAPPA REDDY, J.:-"To be or not to be", is the question which Javed Ahmed Abdul Hamid Pawala has posed us. In connection with certain cruel and multiple murders the petitioner was convicted and sentenced to death by the learned Sessions Judge of Thane, on 6-2-1982. The High Court of Maharastra confirmed the sentence of death on 29/30-4-1982. An appeal preferred by the petitioner to this Court under Art. 136 of the Constitution was dismissed by us on 20-4-1983. (Reported in AIR 1983 SC 594). The petition for review was dismissed on 12-8-1983. A petition for clemency was also rejected by the President of India. The petitioner has filed the present writ petition under Art. 32 of the Constitution praying that in view of his tender age, his reformation in jail and the long lapse of time since the passing of the sentence of death on him, the execution of the sentence of death may be stopped and the sentence may be commuted to one of imprisonment for life. In his petition he has frankly confessed to the dastardly crimes committed by him. He has stated that he, now realises the enormity of what he has done and wants to atone and make good the injury inflicted upon society by him by striving to serve humanity if given a chance to do so. Moved by the apparent ring of sincerity in the sentiments expressed by the petitioner in his petition, one of us (E. S. Venkataramiah, J.) admitted the petition and later it has been directed by the Court that the petition should be heard by a Bench consisting of the two of us. On 14-9-1984 we called for a report from the Superintendent, Yervada Central Prison, Pune to report about the conduct and behaviour of the prisoner during the period of his incarceration. The report of the Superintendent Central Jail is to the effect that so far nothing adverse to the petitioner has came to the notice of the authority. The question therefore is what is to be done in the circumstances. The petitioner is an young man aged about 22 years. He appears to be genuinely repentant and he now desires to a tone for the grievous wrong that has been done by him .The repentance and the desire appear to be sincere as far as we are able to judge. The jail authority has no adverse comment to make against his conduct. The sentence of death has now been hanging over his head for two years and nine months.

2. In T. V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 a Division Bench of this Court consisting of one of us and R. B. Misra, J. considered at length the question whether delay in the execution of the sentence of death was sufficient to entitle the person under the sentence Of death to invoke Art 21 of the Constitution. In opining that a delay exceeding two years would so entitle the prisoner, we first observed (Para 1) : -

"First, let us get rid of the cobwebs of prejudice. Sure, die murders were wicked and diabolic. The appellant and his friends showed no mercy to their victims. Why should any mercy be shown to diem? 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 when after the sentence of death is given, the accured person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is nude to after 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"

After referring to Edigs Anamma, (AIR 1974 SC 799), Lalla Singh (AIR 1978 SC 368), Bhagwan Bux Singh (AIR 1978 SC 34), Sadbu Singh (AIR 1978 SC 1506) and Sahai (AIR 1981 SC 1442), we proceeded to quote Justice Brenna