Supreme Court of India
Jumman Khan vs State Of U.P on 30 November, 1990
Equivalent citations: 1991 AIR 345, 1990 SCR SUPL. (3) 398, AIR 1991 SUPREME COURT 345, 1991 (1) UJ (SC) 328, (1991) IJR 88 (SC), 1991 CRILR(SC MAH GUJ) 98, (1991) 2 CHANDCRIC 79, (1991) SC CR R 271, (1991) EASTCRIC 161, (1991) 2 CRILC 170, (1991) 1 JT 31 (SC)
PETITIONER:
JUMMAN KHAN
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT30/11/1990
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1991 AIR 345 1990 SCR Supl. (3) 398
1991 SCC (1) 752 JT 1991 (1) 31
1990 SCALE (2)1167
CITATOR INFO :
D 1992 SC2100 (56)
ACT:
Indian Penal Code, 1860: Section 302--Murder--Death
sentence Constitutional validity of.
Criminal Procedure Code, 1973: Sections 235(2)--Sen-
tence-Pre-decisional opportunity of hearing to
accused--Statutory mandate-Not a mere formality strict
compliance required.
Sections 368, 413, 414 and 415--Sentence of
death--Whether open to review--Undue delay in
execution--Subsequent supervening circumstances warranting
interference.
Constitution of India, 1950: Article 21: Capital punish-
ment-Constitutional validity of.
Practice & Procedure: New plea--raising of--For the
first time-Permissibility of.
HEADNOTE:
The petitioner was charged with rape and murder of his
neighbour's six year old daughter. As per the post-mortem
report, the victim was brutually raped and strangulated to
death. The Trial Court found the petitioner guilty under
both the charges and sentenced him to undergo life imprison-
ment under Section 376 IPC and to death under Section 302
IPC. On an appeal preferred by him, the High Court confirmed
the conviction and sentences passed by the Trial Court.
Aggrieved by the judgment of the High Court, the peti-
tioner freed a special leave petition which was dismissed by
this Court. Thereafter he presented a mercy petition and the
Governor rejected the same. The petitioner fried a review
petition against the rejection of his mercy petition. The
execution was stayed initially, but the stay was vacated,
later. The petitioner addressed a mercy petition to the
President of India and it was rejected. Subsequent mercy
petition to the President also met the same fate.
399
In the present writ petition, the petitioner contended
that there was substantial non-compliance with the mandatory
provisions of Section 235(2) of the Code of Criminal Proce-
dure of 1973, vitiating the imposition of the sentence of
death; that the constitutional validity of capital punish-
ment upheld by this Court in Bachan Singh's case [1980] 2
SCC 684 deserved to be reviewed by a larger Bench since it
was just and necessary that the vires of Section 302 IPC has
to be re-examined taking into account all subsequent deci-
sions of this Court rendered in the context of Article 21 of
the Constitution; that since there has been an undue delay
in consideration of the mercy petitions submitted by the
petitioner praying for clemency both to the President as
well as the Governor, the petitioner was entitled for commu-
tation of the death sentence to one of imprisonment for
life.
Dismissing the writ petition, this Court,
HELD: 1.1. The sentence in every criminal case when
confirmed by this Court is justified and, therefore, normal-
ly it is not open for review or reconsideration. However,
this Court on several occasions in appropriate cases, even
after the imposition of sentence of death reached its final- ï7
3
by exercising its extraordinary powers when this Court felt
that the execution of that sentence was not justified on
account of the subsequent supervening circumstances namely,
the undue long delay which has elapsed since the confirma-
tion of this sentence by this Court. This is based on the
principle that sentence of death is something and the sen-
tence of death followed by lengthy imprisonment prior to
execution is another. [406F-H]
1.2. In the instant case, there is no undue delay and so
the sentence of death imposed on the petitioner does not
call for interference on the ground of delay in execution of
the death sentence. [404E]
Sher Singh v. State of Punjab, [1983] 2 SCC 344 and
Triveniben v. State of Gujarat, [1989] 1 SCC 678, followed.
T.V. Vatheeswaran v. State of Tamil Nadu, [1983] 2 SCC
68, referred to.
2. Death sentence is constitutionally valid. The deci-
sion in Bachan Singh's case needs no reconsideration.
[405E-F]
Bachan Singh v. State of Punjab, [1980] 2 SCC 684, affirmed.
400
Sher Singh v. State of Punjab, [1983] 2 SCC 344; Allau-
din Mian v. State of Bihar, [1989] 3 SCC 5 and Triveniben v.
State of Gujarat, [1989] 1 SCC 678, relied on.
3.1. The mandatory provision of Section 235(2) of the
Criminal Procedure Code, 1973 provides that the accused must
be given an opportunity in regard to the sentence and it is
only after hearing him the Court has to pass the sentence
according to law. The strict compliance of this provision is
a statutory mandate but not a mere formality and so it must
be scrupulously followed in its true spirit. [404D]
3.2 In the instant case, the plea that Section 235(2) of
the Criminal Procedure Code was not complied with, has been
raised for the first time. Since the Trial Court had in fact
heard the petitioner on the question of sentence, but of
course on the same day, such a new plea cannot be accepted
at this stage. [404E-F]
Santa Singh v. State of Punjab, [1977] 1 SCR 229; Mu-
niappan v. State of Tamil Nadu, [1981] 3 SCR 270 and Allau-
din Mian v. State of Bihar, [1989] 3 SCC 5, relied on.
4. On the basis of the relevant records, there is absolutely
no ground for reconsideration of the orders of the President ï7
3
Kehar Singh and Another v. Union of India and Another,
[1989] 1 SCC 204, referred to.
JUDGMENT:
