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Synopsis

The Karnataka High Court has commuted death sentence of a 70-year-old man to life imprisonment after noting that he had been in jail for over 30 years, including over 16 years in solitary confinement, without any sanction of law. 

It also noted the "unexplained and inordinate" delay over seven years and eight months in deciding his mercy petition, in a "clear lapse on the part of the state government and the union government", "which inheres a right in the petitioner to seek commutation of the death sentence". 

Petitioner Saibanna was convicted of killing his first wife, Malkawwa, suspecting her of having an illicit relationship with another man in 1988. He was awarded life imprisonment in 1993. 

In 1994 during parole, he killed his second wife, Nagamma, and the girl child, Vijaylakshmi from the second marriage, solemnised during the bail in the first case. He was then awarded the death sentence.

Lodged in the Belagavi prison, he filed a writ petition in the court, seeking a declaration that the execution of his death penalty after rejection of his mercy petition was unconstitutional.

A division bench of Justices G Narendar and C M Poonacha said, "Taking into consideration the entirety of facts and circumstances and in view of the fact that the petitioner has undergone imprisonment for more than 30 long years, in our view, ends of justice would be met if the death sentence awarded to the petitioner is commuted to one of life imprisonment, with liberty to move an application for remission."

After killing his wife, Saibanna had surrendered himself before the Afzalpur police in Kalaburagi district on January 9, 1988. He married Nagamma when he was out on bail and fathered a baby girl. During the parole on September 19, 1994, he killed Nagamma and the child alleging that it was not his child and that she had an extramarital affair. He also stabbed himself but was saved. He was awarded the death penalty on January 8, 2003, which was confirmed by the High Court of Karnataka and the Supreme Court. 

In his plea, he contended that jail authorities subjected him to solitary confinement without any sanction of law and that there was an inordinate and unexplained delay of over seven years and eight months in rejection of his mercy plea by the President of India in 2013. 

The High Court, in its order, noted it could be authoritatively said that the petitioner had been undergoing incarceration from January 09, 1988 till the date except for a short period between July 13, 1988 to February 02, 1993 and thereafter from February 02, 1993 till the date, he had been lodged in Gulbarga Jail and was transferred to Belgavi Prison on January 10, 2003 and from which date, the petitioner had been kept in solitary confinement. 

The observations of the Apex Court in B A Umesh’s case would squarely cover the instant case too, it said.

The bench, which sought a report from jail authorities, also noted fear psychosis and mental trauma suffered by him "caused by the solitary confinement or singular cell confinement" for almost 16 long years.

The court also said that in totality, the cumulative delay in considering and disposing of petitioner’s mercy petition was more than seven years and eight months.

"We have no hesitation in holding that the consideration of the mercy petition has seriously prejudiced the rights of the petitioner. We draw succor and support from the observations of the Apex Court in the cases of Ajay Kumar Pal vs. Union of India and another (2015), Shatrughan Chauhan, B A Umesh, PUDR and Jagdish. The delay of more than seven years and eight months has neither been explained nor demonstrated as not being, in-ordinate," the bench said. 

"The observations of the Apex Court in Sunil Batra’s case regarding the mental status of a death row convict is an eye-opener to the extreme mental trauma undergone by a death row convict, which in turn has a bearing and causes physical trauma also which is borne out by the medical records attached to the reports, secured by us," the bench added.

The court also said that the facts and circumstances of the case would clearly point to delay, which was an in-ordinate one and for which no explanation was made.

"The delay not only being inordinate, the pleadings do not disclose any explanation much less any worth-while explanation for the delay. In that view of the matter, we have no hesitation in holding that the delay in consideration of the mercy petition is an inordinate and unexplained delay and the same inheres a right in the petitioner to seek commutation of the death sentence," the bench said.

Case Title: Saibanna Vs Union of India & Anr