- (1.) Heard Mr. Shyam Divan, learned senior Counsel appearing for the Petitioner and Mr. R.F. Nariman, learned Solicitor General appearing for the Union of India. We have also heard Mr. Avijit Roy, Learned Counsel appealing for the State of Assam.
(2.) The Petitioner has been convicted Under Section 302 of the Indian Penal Code and has been sentenced to death. He committed this offence while on bail in another murder trial in which he was also convicted. The conviction and the death sentence has been confirmed by the High Court as well as this Court. The judgment of this Court was delivered on 14.5.1999 in Criminal Appeal No. 700 of 1998. Thereafter, Mercy Petitions were filed by the Petitioner before the Governor of Assam as well as the President of India. The Governor rejected the Mercy Petition on 7.4.2000 and the President of India rejected the Mercy Petition on 8.5.2011. On account of long delay in the execution of the death sentence, the Petitioner moved the Gauhati High Court in W.P.(Crl.) No. 35/2011 for commutation of the death sentence to life imprisonment relying on Constitution Bench judgment of this Court in Smt. Triveniben v. State of Gujarat, 1989 1 SCC 678. The High Court has, however, dismissed the writ petition by the impugned order dated 30.1.2012.
(3.) Delivering the majority judgment in Smt. Triveniben v. State of Gujarat , Ojha, J. held that undue long delay in execution of sentence of death will entitle the condemned person to approach this Court under Article 32 of the Constitution of the India but this Court will examine the nature of the delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusion reached by the Court while finally maintaining the sentence of death. In the concurring judgment, K. Jagannatha Shetty, J., has, however, observed that "if the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay".;