JUDGMENT

S. RATNAVEL PANDIAN, J.:—The petitioner Shivaji Jaising who stands condemned to death is approaching this Court for modification of the sentence of death into one of imprisonment for life. A brief resume of the facts is necessary to appreciate the plea of the petitioner.

2. The case of the prosecution is that on 3-8-1980 the petitioner and his younger brother Ram Hari Jaising Babar in furtherance of their common intention committed triple murder and also attempted to cause the death of three others by causing grievous hurt. On the above allegations both the brothers were jointly tried for offences under S. 302 read with S. 34 and S. 307 read with S. 34 IPC, in the alternative under S. 326 read with S. 34 IPC in Sessions Case No. 136/81 on the file of the court of the 3rd Additional Sessions Judge at Solapur. The Trial Court by its judgment dated 28-6-82 found both the appellants guilty of the charges and convicted them thereunder and sentenced the petitioner with the extreme penalty of law death sentence, but sentenced Ram Hari Jaising Babar to imprisonment for life on all the three counts. Besides, they were also sentenced to various terms of imprisonment for offences under S. 307 read with S. 34 IPC.

3. Feeling aggrieved by the judgment of the trial Court the convicted accused preferred, Criminal Appeal No. 498 / 82. On a reference made by the Sessions Judge under S. 366 of the Code of.. Criminal Procedure, confirmation case No. 8/ 82 was registered. The High Court by its commonjudgment and order dated 30th August, 1983 dismissed the Criminal Appeal No. 498/ 82 and confirmed the death sentence in confirmation case No. 8 / 82.

4. The petitioner and his brother filed S.L.P. (Criminal) Nos.620 and 637/84 as against the judgment of the High Court which were dismissed in limine by order of this Court dated 30th April, 1984. Thereafter, the petitioner filed a Review Petition No. 245/ 84. This Court by its interim order dated 14th June, 1984 stayed the execution of the death sentence till the review petition was disposed of. The condemned prisoner Shivaji Jaising Babar sent a mercy petition dated 12-5-84. Thereafter, mother of the petitioner, Smt. Shahuai Jaising Babar submitted a separate mercy petition praying for commutation of the death sentence passed on the condemned petitioner which petition was received by the Minister of Home Affairs on 17-7-84. It appears one Subhash Shankar Chauhan of Pune and some others of the village Chopri, District Solapur submitted one other mercy petition dated nil for the commutation of the death sentence passed on the condemned prisoner Shivaji Jaising Babar. That petition was received in the Ministry of Home Affairs, New Delhi on 3rd August, 1984. When it was so, on 18th September, 1984 this Court dimissed the Review Petition (Criminal) No.245/85. It is noted from the files produced by the Home Department of the Central Government that the State Government by its letters dated 7th August, 1985, 18th October, 1985, 15th January, 1986 and 16th April, 1986 reminded the Secretary to the Government of India, Ministry of Home Affairs, New Delhi inviting the attention of the Secretary about the pendency of the mercy petition stating that the State Government would be grateful if the orders of the President of India on the condemned prisoner were communicated to the State Government at an early date. It is not in dispute that nothing had happened till May, 1988. The file relating to the disposal of the mercy petition produced by the Ministry of Home Affairs shows that the Home Department put up a note to the President of India only on 13-5-1988 and thereafter the President rejected the mercy petition on 10-6-1988. After the dismissal of the mercy petition by the President the date of execution was fixed on 26th August, 1988. Meanwhile, the mother of the condemned prisoner presented yet another mercy petition dated 24-8-1988 before the President. She also filed a Writ Petition (Criminal) No. 256/