JUMMAN KHAN versus STATE OF U.P.

Citation: [1990] SUPP. 3 S.C.R. 398 · Decided: 30-11-1990 · Supreme Court of India · Bench: S. RATNAVEL PANDIAN · Disposal: Dismissed

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Judgment (excerpt)

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JUMMAN KHAN 
v. 
STATE OF U.P. 
NOVEMBER 30, 1990 
[S. RATNAVEL PANDIAN AND K. JAYACHANDRA 
~EDDY, JJ.] 
Indian Penal Code, 1860: Section 302-Murder--Death sentence 
Constitutional validity of. 
Criminal Procedure Code, 1973: Sections 235(2)-Sentence-
Pre-tf.ecisional opportunity of hearing to accused-Statutory mandate-
Not a mere formality strict compliance required. 
Sections 368, 413, 414 and 415-Sentence of death-Whether 
open to review-Undue delay in execution-Subsequent supervening 
circumstances warranting interference. 
Constitution of India, 1950: Article 21: Capital punishment-
Constitutional validity of. 
Practice & Procedure: New plea-raising of-For the first time-
Permissibility of. 
The petitioner was charged with rape and murder of his neigh-
bonr's six year old daughter. As per the post-mortem report, the victim 
was hrutually raped and strangulated to death. The Trial Court found 
the petitioner guilty under both the charges and sentenced hbu to 
undergo life imprisonment under Section 376 IPC and to death under 
Section 302 IPC. On an appeal preferred by him, the High Court con-
firmed the conviction and sentences passed by the Trial Court. 
Aggrieved by the judgment of the High Court, the petitioner filed 
a special leave petition which was dismissed by this Court. Thereafter 
he presented a mercy petition and the Governor rejected the same. The 
petitioner filed a review petition against the rejection of his mercy peti-
tion. The execution was stayed initially, but the stay was vacated, later. 
The petitioner addressed a mercy petition to the President of India and 
it was rejected. Snbseqnent mercy petition to the President also met the 
same fate. 
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JUMMAN KHAN v. STATE OF U.P. 
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In the present writ petition, the petitioner contended that there 
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was substantial non-compliance with the mandatory provisions of 
Section 235(2) of the Code of Criminal Procedure of 1973, vitiating the 
imposition of the sentence of death; that the constitutional validity of 
capital punishment upheld by this Court in Bachan Singh's case [1980] 
2 sec 684 deserved to be reviewed by a larger Bench since it was just 
and necessary that the vires of Section 302 IPC has to be re-examined 
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taking into account all subsequent decisions of this Court rendered in 
the context of Article 21 of the Constitution; that since there has been an 
undue delay in consideration of the mercy petitions submitted by the 
petitioner praying for clemency both to the President as well as the 
Governor, the petitioner was entitled for commutation of the death 
sentence to one of imprisonment for life. 
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Dismissing the writ petition, this Court, 
HELD: 1.1. The sentence in every criminal case when confirmed 
by this Court is justified and, therefore, normally it is not open for 
review or reconsideration. However, this Court on several occasions in 
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appropriate cases, even after the imposition of sentence of death 
reached its finality, has commuted the sentence to one of life imprison-
ment by exercising its extraordinary powers when this Court felt that 
the execution of that sentence was not justified on account of the subse-
quent supervening circumstances namely, the undue long delay which 
has elapsed since the confirmation of this sentence by this Court. This is 
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based on the principle that sentence of death is something and the 
sentence of death followed by lengthy imprisonment prior to execution 
is another. [406F-H] 
1.2. In the instant case, there is no undue delay and so the sen-
tence of death imposed on the petitioner does not call for interference on 
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the ground of delay in execution of the death sentence. [404E] 
Sher Singh v. State of Punjab, [1983] 2 SCC 344 and Triveniben v. 
State of Gujarat, [1989] 1 SCC 678, followed. 
T. V. Vatheeswaran v. State of Tamil Nadu, [1983] 2 SCC 68, 
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referred to. 
2. Death sentence is constitutionally valid. The decision in 
Bachan Singh's case needs no reconsideration. [405E-F] 
Bachan Singh v. State of Punjab, [1980] 2 SCC 684, aff'trmed. 
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SUPREME COURT REPORTS 
[1990] Supp. 3 S.C.R. 
Sher Singh v. State of Punjab, [1983] 2 SCC 344; A//audin Mian 
v. State of Bihar, [1989] 3 SCC 5 and Triveniben v. State of Gujarat, 
[1989] l sec 678, relied on. 
;' 
3.1. The mandatory provision of Section 235(2) of the Criminal 
Procedure Code, 1973 provides that the accused must be given an 
apportunity in regard to the sentence and

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