Smt. Triveniben v The State of Gujarat AIR 1989 SC 142

CaseSmt. Triveniben v State of Gujarat, AIR 1989 SC 142
CourtBefore Supreme Court of India
BenchG.L. Oza (J), Jagannatha Shetty (J), K.N. Singh (J), L.M. Sharma (J), M.M. Dutt (J).
Author of the judgementG.L. Oza (J) and K. Jagannatha Shetty (J).
Counsel for PetitionersR. K. Jain, Senior Advocate (With Ms Urmila Sirur, Mohd. Naseem, Rakesh K. Khanna, P. K. Jain, Mukul Mudgal, Sanjay Parikh, B.P. Singh, P. Krishna Rao, B. K. Prasad, Ms Malini Podwal and Lalit Kumar Gupta)
Counsel for RespondentsB. Datta, Additional Solicitor General, V. C. Mahajan and T. U. Gupta, Senior Advocates. (With Ms A Subhashini, A. K. Srivastava, M. N. Shroff and Mahabir Singh)
Decided on February 7, 1989.
AbstractIn the present case there was an delay in the execution of death sentence awarded against the appellant. It was the appellant's contention that owing to this delay, the death sentence should be commuted to life imprisonment. The Honourable Supreme Court of India dealt with some important issues concerned and finally reduced the sentence from death penalty to life imprisonment. The explanation given to the term 'delay' and the aspects relating to it are noteworthy.
Author of the BriefVishesh Sharma, Student at Gujarat National Law University.
KeywordsDeath Penalty, Constitution of India, Double Jeopardy, Fundamental Rights.

Brief Facts and Procedural History:

The petitioner is the mother of the accused who was convicted under S. 302 I.P.C. and sentenced to death by the Sessions Court, Rajkot for committing triple murder. The High Court confirmed his conviction and sentence. The Supreme Court dismissed the special leave petitions/appeals and subsequent review petitions. Mercy petitions were filed before the Governor and the President.  In Special Criminal Application, it was made clear that the execution of death sentence should not be carried out as the Supreme Court granted a stay in the year 1985 and the special leave petition was dismissed by the Supreme Court much later. There was quite a bit of time that passed in between various judgments and orders of the High Court and the Supreme Court and later in receiving the reply of the Mercy Petitions.Therefore, they approached this Court by way of Writ Petitions for setting aside the death sentence and substituting it by a sentence of life imprisonment on the ground of prolonged delay in the execution. They contended that the dehumanising factor of prolonged delay with the mental torture in confinement in jail had rendered the execution unconstitutional.

Questions before the Court:

  • Whether prolonged delay in execution of the sentence of death rendered it in executable and entitled the accused to demand the alternate sentence of imprisonment for life,
  • What should be the starting point for computing this delay,
  • What were the rights of a condemned prisoner who had been sentenced to death but not executed, and
  • What could be the circumstances which should be considered along with the time that had been taken before the sentence is executed?

Three previous cases were the prime consideration before the Supreme Court in this case:

V. Vaitheeswaran v. State of Tamil Nadu (1983) 2 SCR 348 where it was held by a bench of two judges that two years delay in execution of the sentence after the judgment of the trial court would entitle the condemned prisoner to ask for a commutation of his sentence of death to imprisonment for life.

Sher Singh v. the State of Punjab (1983) 2 SCR, where, a three Judges’ Bench held that delay alone is not good enough for commutation and two year’s rule could not be laid down in the cases of delay and that the Court in the context of the nature of the offence and delay, could consider the question of commutation of death sentence. This judgement, hence, overruled the Vaitheeswaran judgement.

Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra (1986) 2 SCR 8, where, the Supreme Court observed that where the condemned man 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, would entitle him for commutation of sentence of death into imprisonment for life.

Arguments on behalf of the petitioners:

  1. Mental agony ensues as soon as the death sentence of an accused is confirmed by the High Court. This mental agony is increased when such execution is delayed. This is inhumane.
  2. Delay in the execution of the sentence will entitle a prisoner to approach Supreme Court as his right under Article 21 is being infringed.
  3. Article 21 contemplates not only a fair procedure but also expeditious procedure and in this context, it was contended that observations be made so that judicial process also is concluded as expeditiously as possible.
  4. When capital punishment is awarded the sentence awarded is only sentence of death but not sentence of death plus imprisonment and therefore if a condemned prisoner has to live in jail for long in substance it amounts to punishment which is sentence of death and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary to Article 20 and the imprisonment cannot be justified in law.

Arguments on behalf of state:

  1. When the High Court grants Death Sentence, it almost always comes to the Supreme Court and the court ordinarily grants leave and appeals are heard at length which is for the benefit of the general public interest and also for the accused. Thus, it must be seen that the court consider that the judicial process has ended only when the Supreme Court has passed the judgement and not after High Court confirms death sentence.


  1. An undue long delay in execution of the sentence would entitle the convict to approach the Supreme Court under Article 32.
  2. In such a case, the court would only have the jurisdiction to examine the nature of the delay caused and the circumstances ensued after the sentence was finally confirmed by the judicial process and would have no jurisdiction to reopen the conclusions reached by the court while finally maintaining the sentence of death.
  3. The delay which could be considered while considering the question of commutation of the death sentence into life imprisonment could only be from the date of the pronouncement of the judgement of the Apex Court. The judicial process is considered to have ended only when the apex court has passed a judgement.
  4. Hence, the only delay which would be material for consideration will be the delay in disposal of mercy petitions or delays occurring at the instance of the executive.
  5. When petitions under Articles 71 or 161 are received by the authorities concerned, it is expected that these shall be disposed of expeditiously.
  6. A judgement of the court awarding death sentence is not open to challenge under Article 14 or 21.
  7. The question of improvement in the conduct of the prisoner after the final verdict can also not be contended and the sentence cannot be altered on that ground too.


All writ petitions except Petition 1566 of 1985 are dismissed. Petition 1566 is partly allowed and the sentence of death awarded to the convict is commuted to life imprisonment.


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