After 30 Yrs In Jail, Karnataka HC Commutes Sentence Of 70-Yrs-Old Death Row Convict, Criticizes Unexplained Delay In Deciding Mercy Petition

The Karnataka High Court has set aside the death penalty imposed on a 70-year-old murder convict and commuted it to life imprisonment, after he spent 30 years behind bars and of which almost two decades he spent in solitary confinement.

A division bench of Justice G Narendar and Justice C M Poonacha allowed the writ petition filed by Saibanna Ningappa Natikar on two grounds—in-ordinate delay of 7 years and eight months in deciding his mercy petition and that he was made to suffer a singular cell confinement/solitary confinement without the sanction of law.

The bench 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.”

In the year 1988 the petitioner surrendered himself before the police stating that he had killed his wife Malkawwa as she was in an illicit relationship with another man and that had greatly disturbed him. The police effected arrest and completed the formalities and he was sent to judicial custody and during his stay, he came in contact with PW-1, one Dattu, who offered the hand of his daughter in marriage after his release.

In July 1988, the accused was released on bail after which he married Nagamma, daughter of PW-1. They had a child out of the marriage. On 02.02.1993, he was convicted and sentenced to undergo imprisonment for life. On 19.08.1994, he was released from prison on parole for a period of one month.

On 13.09.1994, the wife Nagamma and daughter Vijayalakshmi were found murdered and the petitioner was found lying on the floor with five life threatening or near fatal injuries, including a grievous injury on the head. After being discharged from hospital, he came to be arrested for the said crime.

The trial court convicted the petitioner under Section 303 IPC, despite the fact that the provision had already been struck down by a Constitutional Bench in Mithu vs. State of Punjab, (1983). He was sentenced to death penalty.

The appeal was confirmed by the High Court and the same was upheld by the Apex court in 2005. Following which the petitioner moved a Mercy Petition in 2005. It was inadvertently addressed to the Union Government which returned it as Mercy Petition is first required to be looked into by the Governor of the State. The mercy petition did not see the day of the light till January 2007 and it was ultimately rejected in February 2007. This was followed by another mercy petition the same month. That also came to be rejected in 2013.

Arguments:

Advocate Ragini Ahuja contended that there is an in-ordinate and unexplained delay of more than 7 years 8 months and 9 days that has occurred in consideration and disposal of petitioner's mercy petition. It was also argued that solitary confinement was illegally imposed upon the petitioner, post the date of sentencing i.e., from 09.01.2003 and which continued for years together.

Amicus Curiae Senior Advocate Vikram Huilgol submitted that solitary confinement is a fact that invests a right in the death row convict to pray for commutation of the death sentence. Further he submitted that delay in consideration and disposal of the mercy petition is to be construed as being fatal.

The prosecution opposed the petition.

Findings:

On going through the records the bench noted that there is no explanation for the delay in the hands of the State Government, occurring between 31.05.2005 and 09.01.2007 i.e., for a period of one year 9 months and 9 days in deciding the mercy petition.

The second leg of delay was between 12.01.2007 and 02.02.2007 at the hands of the Governor’s Secretariat. "There is absolutely no explanation as to why the decision making process was not expedited and the mercy petition was lying idle for more than 20 days," Court said.

The third leg of delay was in the communication by Karnataka government to Union government, which yet again took about 24 days. "The decision of the Governor was communicated after a delay of more than 24 days i.e., on 27.02.2007. While forwarding the decision of the Governor, neither the charge sheet nor the split verdict of the Division Bench was forwarded, which in our considered opinion, is a procedural default," Court added.

The fourth leg of "unexplained" delay was between the dates 28.02.2007 and 03.01.2013 (when the mercy petition was declined by the President.

“A cumulative reading would clearly demonstrate that there has been a delay in consideration of the mercy petition on the part of the Governor and the delay occasioned is more than one year 11 months and the delay occasioned in the consideration of the mercy petition by the Hon’ble President is more than 5 years and 9 and half months. In totality, the cumulative delay in considering and disposing of petitioner’s mercy petition is more than 7 years and eight months,” Court noted.

Thus it held that delay in consideration of the mercy petition seriously prejudiced the rights of the petitioner and inheres a right to seek commutation of the death sentence.

Court also noted that between 10.01.2003 to 20.05.2019, the petitioner was kept in a Single Cell of the Belagavi Prison. It said, “Even on the face of it, the petitioner has undergone singular cell confinement for almost 16 long years.” Notably, petitioner was permitted to come out to the yard in the morning, wash his clothes but neither the pleadings nor the documents demonstrate that he was allowed to mingle with other prisoners.

Court said as per the health report produced by the prison authorities, petitioner has been suffering mild dehydration, fear psychosis and on certain dates he is restless, complains of pain on both sides of the chest and 3-4 time loose motion quite often. It observed, “These are only testimony to the trauma that is caused by solitary confinement or singular cell confinement.”

Following which the court partly allowed the petition.

Case Title: Saibanna s/o Ningappa Natikar AND The Union of India & Others

Case No: Writ Petition no. 3297 of 2013

Citation: 2023 LiveLaw (Kar) 327

Date of Order: 17-08-2023

Appearance: Advocates Ragini Ahuja, Urmila Pullat, B.N.Jagadeesha, for petitioner.

H.Jayakara Shetty, CGC for R1.

Vikram Huilgol, AAG A/w Kiran Kumar, HCGP for R2-R4.

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