Prolonged delays and lack of due process in mercy petition consideration and unlawful solitary confinement violate constitutional rights, necessitating commutation of a death sentence to life imprisonment.

ORDER

1. Heard the learned counsel Smt. Ragini Ahuja appearing on behalf of the petitioner, the learned HCGP Sri Kiran Kumar for respondent Nos.2 to 4, learned CGC Sri Jayakara Shetty for respondent No.1 and the learned Senior counsel Sri Vikram A Huilgol, Amicus Curiae.

2. Facts in brief - are that the petitioner, a 70 years old death row convict has approached this Court being aggrieved by the rejection of his Mercy Petition dated 29.04.2005 by proceedings of His Excellency the President of India dated 04.01.2013.

3. The factual matrix of the case is that the petitioner appeared before the jurisdictional Afzalpur Police Station on 09.01.1988 and lodged an FIR stating that he had killed his wife Malkawwa as she was in an illicit relationship with another man and that had greatly disturbed him. The police effected arrest and completed the formalities and he was sent to judicial custody and during his stay, he came in contact with PW-1, one Dattu, who offered the hand of his daughter in marriage after his release. The petitioner was released on bail in S.C.No.32/1988 somewhere around July 1988 and during his stay on bail, the marriage with one Nagamma, daughter of PW-1 ensued and out of the marriage, the petitioner and the said Nagamma begot one girl child by name Vijayalakshmi.

4. On 02.02.1993, the petitioner was convicted and sentenced to undergo imprisonment for life in S.C.No.32/1988. On 19.08.1994, the petitioner was released from prison on parole for a period of one month. On 13.09.1994, the wife Nagamma and daughter Vijayalakshmi were found murdered and the petitioner was found lying on the floor with five life threatening or near fatal injuries, including a grievous injury on the head. The petitioner was admitted to hospital with head injury and stab injury in the abdomen. The petitioner was discharged on 26.09.1994 and the petitioner was arrested and the case came to be registered as S.C.No.11/1995.

5. Thereafter, trial commenced and a singular charge under Section 303 of Indian Penal Code was framed despite the fact that the provision had already been struck down on 07.04.1983 by a Constitutional Bench inMithu vs. State of Punjab , (1983) 2 SCC 277 During the time of sentencing on 08.01.2003, this fact was brought to the notice of the Trial Judge in S.C.No.11/1995. Nevertheless, the Trial Judge continued to place reliance on the provisions of Section 303 of IPC and proceeded to impose the maximum penalty of death sentence in terms of a non-existent provision of law. The Criminal Appeal No.497/2003 was preferred by the petitioner while in custody and hence, the Division Bench appointed an Amicus Curiae and after hearing, the Bench delivered the unanimous verdict with regard to the guilt but delivered a split verdict while answering the reference in Crl. R. C. No.2/2003. While the Senior Judge opined that it was not one of the rarest of rare case, the Companion Judge opined otherwise and upheld the imposition of the maximum punishment of death sentence. The matter was referred to a third Judge and the learned third Judge, after hearing, was pleased to pass a judgment affirming the view of the Companion Judge. Pursuant to the views of the third Judge, the Criminal Reference case No.02/2003 came to be answered in the affirmative on 10.10.2003 and the judgment of conviction and the death sentence passed by the learned Sessions Judge, Gulbarga came to be upheld and the Criminal Appeal came to be rejected. Further, the