Death penalty cannot be executed separately against a single convict, when legal proceedings filed by other co-convicts in the same case are pending - this is one of the arguments raised by lawyers for the convicts in the Nirbhaya case to seek deferral of their executions.
The lawyers cited Rule 836 of the Delhi Prison Rules to buttress this argument.
The Prosecution however contended that there is no legal hurdle in executing a convict, who has exhausted all his legal remedies, regardless of the pendency of proceedings of the co-convicts in the same case.
The Central Government has even filed an application in the Supreme Court seeking a clarification in the death sentence guidelines laid down in the Shatrughan Chauhan judgment to allow such segregated executions of co-convicts.
In this regard, it is pertinent to recall a case, which is a bizarre and shocking tale of three death row convicts facing different fates in the same case.
This was in the case Harbans Singh v Union of India AIR 1982 SC 849, which reveals the role of chance in determining death penalty.
Harbans Singh, Kashmira Singh and Jeeta Singh were convicted for murder of four persons and were awarded capital punishment by the trial court. This was confirmed by the High Court.
Three of them filed special leave petitions in the Supreme Court, at different stages.
Jeeta Singh's petition got dismissed on April 15, 1976.
Almost a year later, another bench considered the petition of Kashmira Singh and commuted his death penalty to life imprisonment on April 10, 1976, without noticing the dismissal of SLP of Jeeta Singh. This commutation was done by a bench consisting of Justices Bhagwati and Fazal Ali.
After one more year, Harbans Singh approached SC against his death penalty. This was considered by another bench consisting of Justices Sarkaria and Shinghal. This bench dismissed the petition, confirming the death penalty. The commutation of co-convict Kashmira Singh's death penalty was not brought to the notice of the bench. Harbans Singh's later sought review, but met with no success. Later, the President rejected his mercy petition. Curiously, his special leave petition, review petition and mercy petition had no mention of the commutation of Kashmira Singh's sentence.
Following this, death warrants were issued for the executions of Jeeta Singh and Harbans Singh on October 6, 1981.
As a last attempt to escape the noose, Harbans Singh filed a writ petition in the Supreme Court against the death warrant, by pointing out the commutation of Kashmira Singh's sentence. The Court stayed his execution. However, Jeeta Singh, who did not file any writ petition in the SC, was executed on the scheduled date!
Harbans Singh's petition was later considered by a bench comprising Justices Y V Chandrachud and Amarendra Nath Singh. The bench could not hide its pain, anguish and sadness at the fact that one among the convicts got executed, just because he did not approach the Court at the right time.
"The course which this case has taken makes a sad reading. Three persons were sentenced to death by a common judgment and, regretfully, each one has eventually met with a different fate. One of those three persons, Jeeta Singh, who did not file any Review Petition or Writ Petition in this Court was executed on October 6, 1981. The other person, Kashmira Singh, succeeded in having his death sentence commuted into life imprisonment. The petitioner was to be executed on the same day on which Jeeta Singh was executed but, fortunately, he filed this Writ Petition on which we passed an order staying the execution of his death sentence", Justice Chandrachud said in the judgment.
The Court said that no distinction could have been made with respect to the roles of three convicts in the crime. Therefore, the benefit of commutation given to Kashmir Singh has to be necessarily extended to Harbans Singh as well.
"It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singh's sentence. Were he to approach this Court like the petitioner, the sentence imposed upon him would have been commuted into life imprisonment because no distinction could have been made between his case and that of Kashmira Singh whose sentence was commuted prior to the execution of Jeeta Singh", the Court said.
Although the Court observed that Harbans Sigh's death sentence deserved commutation, it stopped short of ordering so and disposed of the petition by recommending the President to commute his sentence exercising his mercy powers by taking into account the case of Kashmira Singh.
The Court also noted that the case of Jeeta Singh had a "posthumous moral to tell".
"He cannot profit by the direction which we propose to give because he is now beyond the process of human tribunals", it said.
Taking note of the startling fact that three convicts had to face different fates - one of them being irreversible- the Court ordered that prior to the actual execution of any death sentence, the Jail Superintendent should ascertain personally whether the sentence of death imposed upon any of the co-accused of the prisoner who is due to be hanged, has been commuted. If it has been commuted, the Superintendent should apprise the superior authorities of the matter, who, in turn, must take prompt steps for bringing the matter to the notice of the Court concerned.
As much as this case is an example for the randomness in the results of legal proceedings, it also exposes the arbitrariness in death penalty!