Rajasthan High Court - Jaipur
Jagdish S/O Asharam vs State Of Rajasthan on 11 December, 1985
Equivalent citations: 1986(1)WLN256
JUDGMENT Guman Mal Lodha, J.
1. The two applications have filed one for grant of leave to appeal to the Supreme Court from the judgment of this Court dated 29th November, 1985 rejecting the appeal of the accused Jagdish and enhancing the sentence from life imprisonment to death sentence and the second one, is for suspension of execution of sentence of death.
2. On November 29, 1985, we have rejected the appeal of the accused Jagdish and enhanced the sentence of life imprisonment to the sentence of death, for committing the offence under Section 302 IPC on the proved allegations that he burnt his wife, Smt. Chand, alive by pouring kerosene oil on her body and setting fire.
3. So far as the first application for grant of leave to appeal is concerned, Shri M.I. Khan, learned Government Advocate assisted by Shri S.B. Mathur, the learned Additional Government Advocate, opposed it on the ground that a certificate is to be issued certifying that the case is fit one to appeal and it can only be granted under the provisions of Article 134(1) read with Article 134A of the Constitution of India. The condition for such a certificate are mentioned in Article 132(1) of the Constitution of India which requires that the Court must certify that the case involves a substantial question of law as to the interpretation of this Constitution.
4. Normally, we are inclined to hold that there is no question involved in interpretation of the Constitution in the present case, and, therefore, on that ground the appellant cannot claim the grant of any certificate. However, we are of the opinion that though the finding of the guilt is based purely on appreciation of the evidence which has been confirmed in appeal by this Court, yet as we have exercised the powers of suo moto revision for enhancing the sentence, we are of the view that it would be in the interest of justice that this aspect of legal position which normally according to us, is settled as per the decision of the Apex Court in Nadir Khan v. Delhi Administration , should further be examined and considered in order to consider whether this Court was justified in exercising the powers of suo moto revision for enhancement of sentence even in the absence of appeal or revision by the State, in view of the provisions in Section 386(b)(iii) Cr.PC 1973.
5. It is, therefore, certified that the present one is a fit case which should be considered in appeal by the Supreme Court and we direct that the certificate be issued, accordingly.
6. The second application relates to the postponement of the execution of sentence of death, under Section 415(1), Cr.PC.
7. Since we have already granted a certificate and in pursuance of that certificate, Hon'ble the Supreme Court would be considering the appeal against the judgment dated 29th November, 1985, we think it just and proper to postpone the execution of the sentence of death for the period of 60 days from today. Consequently, the execution of sentence of death against Jagdish appellant is postponed for a period of sixty days from today.
8. We may here clarify that even otherwise the death sentence according to the instructions regarding the procedure to be observed by the State contained in the Jail Manual cannot be executed until the dismissal of the appeal by the Supreme Court or in case an appeal is dismissed then during the pendency of petition for mercy before the President.
9. The relevant instructions under the instructions to Rule 22 of the Jail Manual read as under:
Appeal to the Supreme Court and Application for Special Leave to appeal to the Supreme Court:
IX. Whenever a sentence of death has been passed by any court or tribunal, the sentence shall not be executed until after the dismissal of the appeal to the Supreme Court or, the application for special leave to appeal to the Supreme Court or, in case no such appeal has been preferred or no such application has been lodged, until after the expiry of the period allowed for an appeal to the Supreme Court or for lodging of an application for special leave to appeal to the Supreme Court:
Provided that if a petition for mercy has been submitted by or behalf of the convict, execution of the sentence shall further be postponed pending the orders of the President thereon.
Note : If the sentence of death has been passed on more than one person in the same case and if an appeal to a higher court or an application for special leave to appeal to the Supreme Court is lodged by, or on behalf of only one or more but not all of them, the execution of the sentence shall be postponed in the case of all such persons and not only in the case of the person or persons by whom, or on whose behalf, the appeal or the application is lodged.
10. Shri Khan, the learned Govt. Advocate assisted by Shri Mathur, has also invited our attention to the directions about the public hanging given in the judgment of this case having reference to the similar directions in the case of State of Rajasthan v. Lichhma Devi D.B Cr. Appeal No. 330/78 decided on 21-11-1985. It is submitted by them that this Court while issuing such directions of public hanging, has expressly observed that the Government should point out the difficulties if any in carrying out the death sentence in Smt. Lichhma Devi's case (supra).
11. Shri Khan points out that according to the instructions from the Government and the various provisions contained in the Jail Manual so also the settled practice so far, it would neither be possible nor feasible to carry out the direction of public hanging. In this respect, Shri Khan points out the Rules 267 to 269 of the Jail Manual which were framed under the provisions of Section 59 of the Indian Prisons Act and which also contains the administrative instructions.
12. We have perused the relevant rules pointed out by Shri Khan.
13. So far as the Code of Criminal Procedure is concerned, under Section 414, the execution of the death sentence passed by the High Court is to be carried out in pursuance of the warrant to be issued by the Sessions Court, under Section 414, Cr.PC the Form No. 42 has been prescribed which requires that the death sentence would authorise for execution by hanging by neck by the Sessions Court.
14. So far as Section 414 and the Form No. 42 so also Section 354(6), Cr.PC are concerned, no place or time has been mentioned as to where the execution is to take place. The Indian Prisons Act is also silent in this respect. The manner, procedure and method of execution of the death sentence have not been mentioned in any of the Act of the Parliament or the State legislature.
15. Since the rules pointed out by Shri Khan today, from the jail Manual make the provision of the method, manner and the details how the execution of death sentence is to be carried out, normally we would like to respect the same. A perusal of the Rules, 265. 266 and 267, would show that the execution of the death sentence is to take place within the jail walls in the early morning; the prisoners in jail are to be kept locked up until the execution is taken place. Under Rule 268, the respectable male adult aspectators and adult male relatives of the prisoner, upto a maximum of twelve are provided to be admitted with the permission of the Superintendent under Rule 269, it is provided that the spectators must be kept at a distance and reserve guard should be drawn up close at hand, ready prepared to suppress any disturbance or frustrate any attempt at rescue.
16. We are of the opinion that in view of the above provisions, since they are delegated legislation and as per the instructions of Shri Khan, the State Government do not think it necessary, just and proper to alter them or amend them for the purpose of public hanging, we should accept the view point of the State Government communicated through the Government Advocate.
17. In fact, in both the judgments of Smt. Lichhma Devi's case (supra) as well as the present appeal of Jagdish accused, we have made it clear that since there is requirement of making the punishment exemplary, and demonstrative for stopping the barbaric, gruesome flood of crimes of bride roasting the execution of death sentence should be carried out at a public place demonstratively if there is no prohibition. The relevant observations in Smt. Lichhma Devi's case (supra) are as under:
We feel that when the Society is ever-increasingly exhibiting abhorence to dowry deaths of young brides and even then bride burning cases are suddenly increasing and there is flood of bride burning cases, challenging the judicial consciousness and authority of the judiciary as well as the State to provide protection to the innocent young brides from the actual barbaric gruesome crimes of in-laws, who as dowry greedy vultures are taking out the flesh and blood of young brides, the punishment when such crimes are proved, should be exemplary and deterrent. One, such exemplary punishment if given demonstratively in public, can provide protection to thousands to young brides, from being burnt alive, by creating fear and terror in the minds of such dowry hungry vultures, who are doing torture of young brides for the satisfaction of the dowry lust. It would prevent attempt of creating miserable condition either of suicide or homicide, as every one would know that he would not be allowed to go unpunished and one can do it at his or her own peril.
If the law of the land makes no prohibition we would direct that the punishment to be demonstrative and deterrent, be given before the public eyes, at a public place, e.g. Ramlila or Stadium open to the observation of all.
These directions however, are subject to the rules and the security problems of the authorities who may take a decision to the contrary after bringing such provisions and their difficulties if any to the notice of the Court. Subject to the above, we direct that in order to make the punishment more effective deterrent and exemplary, there should be public hanging of the accused Smt. Lichhma in the stadium ground of Jaipur or Ramlila ground of Jaipur, after due notice to the people by media.
We are constrained to give this direction because of the increasing menance of dowry deaths, flood of cruelty to young helpless innocent brides who expect this protection, for their natural inherent fundamental right of living as a human being under the Constitution of India which provides not only protection of social justice and equality to all but contains a special mandate for the duty towards the weaker sex.
18. In case of Jagdish, the present applicant accused, we have also repeated the same in terms and observed as under:
While awarding the death sentence penalty in another case of State of Rajasthan v. Smt. Lichhma Devi D.B Criminal Appeal No. 330/78, decided on November 21, 1985, we have directed that ever increasing crimes of bride burning which are creating a challenge to (he social justice enshrined in the Constitution, when proved, deserves to be dealt with without leniency by imposing extreme penalty of death, and to deter other from the committing such heinous and gruesome crimes, the execution of punishment would be in a demonstrative manner of making it both, exemplary and deterrent. We have, therefore, directed that the death sentence should be executed at a public place in the guage and eye of the public and this can be done at the stadium grounds or Ramlila ground of Jaipur after giving wide spread publicity through the media, of its date, and time and place. We have, while directing the above manner and method of execution, also mentioned that this can be subject to there being no prohibition in the jail rules and without creating any law and order problems or problem of security for the Government. We feel that the present one is also a case where the circumstances warrant the same methodology of execution of death penalty, and we order accordingly that looking to the peculiar facts and circumstances of the case, in order to make this punishment deterrent, exemplary, prohibitary the accused-appellant Jagdish s/o Asharam Khatik who is being convicted under Section 302, IPC and sentenced to death, should be hanged by neck till he dies at a public place at Jaipur City, provided the State Government rules and Jail Manual permits it and there is no law and order problem and security problem.
(Emphasis added)
19. It is obvious that we have made it repeatedly clear that the public hanging should be arranged only if the Government Rules and Jail Manual permit and there is no law and order problems and security problems. No such directions were given in the Red Warrants.
20. The object of the above was to make it deterrent and demonis-trative, if there is no problem on behalf of the State authorities. In USA in Kentucky in 1936, and Missouri in 1937, a black rapist and white murders were publicly hanged.
21. We are of the opinion that now as contemplated by our judgment in explicit manner when Shri Khan has pointed out the difficulties and the problems, as narrated above, and the express requirement of the Jail Manual to carry out the death sentence only in jail premises, the direction of the public hanging which was conditional should no be carried out and we order accordingly.
22. We order that in both the cases of State v. Smt. Lichhma Devi D.B Cr. Appeal No. 330/78 decided on November 21, 1985 and Jagdish v. State of Rajasthan the present appeal No. 239/82, in case the sentences of death are confirmed by the Supreme Court in appeal then they should be carried out in terms of the procedure provided in the rules mentioned above, in the Jail Manual only, unless by that time any amendment is made in the rules. We further want to clarify that it is not for this Court to suggest any legislative or delegated legislative amendments because our duty is confined to the interpretation and the decisions according to law as it exists today, leaving it to the legislature in its wisdom to amend or not to amend.
23. Shri Khan points out that the detail conditions regarding public hanging were not known on account of partial reporting in the news papers and it was on account of this impression that the public hanging was unconditional that certain proceedings were sought to be moved in the Supreme Court as per paper reports only; as no order or notice has been received so far in this Court.
24. As we have earlier said the execution of the death sentence of of Smt. Lichhma Devi was postponed for 60 days on 4-12-85 and today we have stayed the execution of the death sentence of Jagdish and since the Government's view point has been pointed out to us and as the public hanging order was conditional, we have clarified that also today, for removing all manner of doubt about its import, we think that if in any quarter, the wrong impression has been gathered about the import of our judgment that would also stand clarified. Even otherwise as pointed out above, according to the instructions in the Jail Manual, even after the issue of red warrants, the execution of the death sentence cannot take place till the period for filing of appeal expires and further till the appeal as well as mercy a petition re decided.
25. In Smt. Lichhma Devi's case (supra), we have already postponed the execution of death sentence on 4-12-1985 for a period of sixty days.
26. This order should be placed in both the files of State of Rajasthan v. Smt. Lichhma Devi D.B Criminal Appeal No. 330/1978 decided on 21-11-1985 and the present appeal of Jagdish as it clarifies the conditional directions which are given in both the cases about the public hanging also.
27. A copy of this order may be given immediately free of charge to both the accused by sending them to jail. A copy of this order further be given to the Government Advocate and one be sent to the Chief Secretary of Government of Rajasthan, Jaipur so also to the Superintendent of Central Jail, Jaipur.
28. Additional two copies may be given of these all judgments including this judgment to the Government Advocate so that he may transmit the same to the Attorney General of India as prayed by him.