- (1.) These matters came up before us because of the conflict in the two decisions of this Court : T. V. Vatheeswaran v. State of Tamil Nadu, 1983 (2) SCR 348 : 1983 (2) SCC 68, Sher Singh v. State of Punjab, 1983 (2) SCR 582 : 1983 (2) SCC 344, and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, 1985 (2) SCR 8 : 1985 (1) SCC 275. In Vatheeswaran case [1983 (2) SCR 348 : 1983 (2) SCC 68], a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial Court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life. The Court observed that : "Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death."
(2.) In Sher Singh case [1983 (2) SCR 582 : 1983 (2) SCC 344] which was a decision of a three Judges' Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation an two years rule could not be laid down in cases of delay. It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence. The Court observed : "Apart from the fact that the rule of two years runs in the teeth of common experience as regards the time generally occupied by proceedings in the High Court, the Supreme Court and before the executive authorities, we are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitle to pursue all remedies lawfully open to him to get rid of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live." It was further observed : "Finally, and that is no less important, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by sentence of life imprisonment cannot follow by the application of the two years' formula, as a matter of quod eret demonstrandum."
(3.) In Javed case, [1985 (2) SCR 8 : 1985 (1) SCC 275] it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the Jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of death into imprisonment for life. It is because of this controversy that the matter was referred to a five Judges' Bench and hence it is before us.;