JUDGMENT

OZA, J.— (For himself, M. M. Dutt, K. V. Singh and L. M. Sharma, JJ.) : These matters came up before us because of the conflict in the two decisions of this Court : T.V. Vatheeswaran v. State of Tamil Nadu, (193) 2 SCR 348; Sher Singh v. State of Punjab (1983) 2 SCR 582 and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, (1985) 2 SCR 8. In Vatheeswarams case a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial Court will entitle the condemned prisioner to ask for commutation of his sentence of death to imprisonment for life. The Court observe that : (At p. 367 of AIR)

"Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death."

2. In Sher Singhs case (AIR 1983 SC 465) which was a decision of a three Judges Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years rule could not be laid down in cases of delay. It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence. The Court observed (at Pp. 471-472 of AIR) :

"Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the SC and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness. who does not want to live."

It was further observed (at p. 472 of AIR)

"Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years formula, as a matter of "quod erat demonstrandum".

3. In Javeds case (AIR 1985 SC 231) it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of death into imprisonment for life. It is because of this controversy that the matter was referred to a five- Judges Bench and hence it is before us.

4. Learned counsel for the petitioners at length has gone into the sociological, humane and other aspects in which the question of sentence of death has been examined in various decisions and by various authors. It is however not disputed that in Bachan Singh v. State of Punjab (AIR 1980 SC 898) constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P. N. Bhagwati, as he then was, which is the minor