Bombay HC commutes death penalty of convicts in Pune BPO Rape and Murder case

The Bombay High court on Monday commuted the death sentence awarded to two convicts found guilty of committing rape and murder of a Pune BPO employee in 2007, in view of the government’s “inordinate, undue and unreasonable delay” in executing the death penalty.

A Division Bench of Justices BP Dharmadhikari and Swapna Joshi found,

“We find that delay in the present matters could have been easily avoided and the mercy petitions and the final execution could have been dealt with in sense of urgency.”

While passing the verdict, the Court also observed that all authorities, including the Executive, the court of law and the governor or president stand on the same pedestal, when Article 21 of Constitution is at stake. The Court found that,

“… [the] undue or avoidable delay in execution of death penalty by any arm of the State would be against the fundamental right. Extra or additional punishment resulting from avoidable delay is unconstitutional in all circumstances & contingencies.”

The case concerns the rape and murder of a BPO employee by her company’s cab driver, Purshottam Borate and his friend, Pradeep Kokade in 2007.

In 2012, the Bombay High Court had confirmed the death penalty awarded to both convicts. In May 2015, the Supreme Court upheld the High Court judgment. The President rejected the convicts’ mercy petition in June 2017.

The two convicts, through their advocate Yug Mohit Chaudhary, had approached the High Court challenging the rejection of a plea for clemency by the President. The High Court was informed that owing to a delay of over 1500 days in the execution of their death sentence, they had undergone solitary confinement for more than seven years. Chaudhary further argued that a delay of two years between the rejection of the mercy petition by the President and the date of execution is unprecedented in India.

In its affidavit, the State of Maharashtra had denied the petitioners’ claims of inordinate delay and prolonged solitary confinement. Advocate General Ashutosh Kumbhakoni also told the Court that a mere delay cannot be a reason for commuting the death sentence of the petitioners.  He argued that the Court can interfere to commute the death sentence only when the delay is avoidable, extraordinary or unexplained.

Appearing for the Central Government, Additional Solicitor General Anil Singh argued that time taken by the office of President of India to deal with the mercy plea was not exorbitant or unreasonable compared to the time taken to deal with such matters.

All the same, one of the aspects highlighted to the Court was that material judicially relevant was not placed before the higher constitutional authorities, including the President, thereby giving him no opportunity to apply his mind before rejecting the mercy pleas.

In this regard, the Court noted that the judgment delivered by sessions court and the correct and tender age of one of the petitioners, Pradeep (who was 19 years at the time of committing the crime), was not made part of record presented to the Governor of Maharashtra and President of India, who dealt with the mercy pleas.

Over the course of the judgment, the Court also pulled up the authorities for using outdated means of communication such as telegram or letters for forwarding documents and pressed on the need of the fastest mode of communication.

“In 21st century, it has to be e-mail, video conferencing, fax, telephone or mobile. Not employing these devises in digital era would be to deliberately delay the exercise or to derail it. It would be an instance of avoidable delay,” the court observed.

Further, the Bench faulted the State Government for being lax in ensuring that the death sentence is executed promptly.

“Actual execution of death penalty including fixing a date and place and to obtain death warrant is at the hands of State Government. Mere writing a letter cannot be seen as compliance under the rules.“

The Court ultimately concluded that the inordinate delay in executing the death sentence, in the facts of the case, was ground for commuting the penalty to one of life imprisonment.  While setting aside death warrants issued against the convicts in April this year, the court held,

The High Court had stayed the execution and reserved judgment in the matter last month. The convicts were expected to be executed on June 24 at Yerawada Central Prison.

The State government is expected to move the Supreme Court against the High Court Judgment.

[Read the Bombay HC Judgement]

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