SC pre-dawn hearing brings curtain down on Nirbhaya gangrape and murder case

PTI, Mar 20, 2020, 10:08 AM IST

New Delhi: In an unprecedented pre-dawn hearing, hours before a Nirbhaya case death row convict Pawan Kumar Gupta was to be sent to gallows, the Supreme Court Friday midnight opened its door to dismiss his last plea challenging the rejection of second mercy petition by the President.

The top court dismissed Gupta’s plea saying no ground was made out to warrant a judicial review of the President’s decision to reject his mercy plea.

It also refused to pass any direction allowing Gupta and Akshay Singh to meet their family members just before they are sent to gallows.

A bench of Justices R Banumathi, Ashok Bhushan and A S Bopanna took up the matter at 2.30 am and heard at length Pawan’s lawyer A P Singh and Shams Khwaja, who contended that Gupta was juvenile at the time of the commission of the offence.

“We do not find any ground to challenge the rejection of mercy petition by the President,” the bench said, adding that “when the power vests with the highest authority, it is assumed that there was the proper application of mind.”

With the rejection of plea of Pawan, the legal hurdles were cleared for the hanging of all the four convicts which include Vinay Kumar, Mukesh Singh and Akshay Singh at 5.30 am.

During the hearing, Singh said that as per his school leaving certificate he was a minor of 16 years of age at the time of the offence and none of the courts, including the trial court and the high court, ever considered his documents.

The bench, which heard the plea till 3.15 am said these documents were already filed before the trial court and were before the High Court and in the appeal before the top court, which was rejected.

Solicitor General Tushar Mehta, appearing for Centre and Delhi government objects to juvenility claim of Pawan Gupta, saying that these grounds have been dealt.

“You are asking us to review our judgement. These cannot be the ground to challenge the rejection of the mercy petition by the President. In this case review and curative petitions have also been dismissed. It is settled law that judicial review of the rejection of mercy petition has a very limited scope and the court has to only see whether there was any application of mind,” the top court said.

It said, “We refuse to consider the claim of juvenility made by the petitioner.”

Singh contended that the second mercy petition was filed on March 18 and was rejected on March 19 and claimed that a remission petition of Pawan is also pending with Delhi LG and Chief Minister Arvind Kejriwal.

He sought deferment of the hearing for two-three days till the decision is taken on that plea.

“Tomorrow you may not know that after the hanging, the remission plea is accepted and their death sentence is commuted. Then it will be a miscarriage of justice,” Singh.

To this, the bench said that all these arguments have been made and the petitioner has to come out with some new grounds.

Advocate Khawaja, also appearing for Pawan while referring to the assassination of ex-Punjab CM Beant Singh, says Nirbhaya convicts be also granted remission like convicts of that case.

He said that Pawan may have committed gangrape but he cannot commit premeditated murder as there was no common intention rather he could have been bullied to perform the act and therefore cannot be given capital punishment.

“All the acts cannot be painted with the same brush. Court has to take every aspect into account,” Khawaja said.

The bench reminded Khawaja that it is a consistent view of the court that scope of judicial review is very limited and said that convict is not right in alleging that juvenility claim was not considered by the courts.

To the request of Pawan’s lawyer that he and Akshay be allowed to meet their family members for 10-15 minutes before hanging, the bench said that it would not be appropriate and refrained from passing any order.

Solicitor General Tushar Mehta said that rules do not permit such visits and it would also be painful to both the convicts and the family members.

The apex court on Thursday had trashed the desperate attempts made by three of the four death-row convicts, scheduled to be hanged at 5.30 am in the Nirbhaya gang-rape and murder case, to escape the gallows.

Just a day before the scheduled execution, the top court one after the other dismissed three pleas filed by Pawan Gupta, Mukesh Singh and Akshay Singh including two petitions that were filed on Thursday itself.

The fourth convict Vinay Sharma has not filed any petition after he exhausted all his legal remedies including the mercy petition with the President.

On March 5, the trial court had issued fresh warrants for hanging on March 20 at 5.30 am of all convicts in the case – Mukesh Singh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Singh (31).

A 23-year-old paramedic student, referred to as Nirbhaya, was gang-raped and brutally assaulted on the intervening night of December 16-17, 2012, in a moving bus in south Delhi by six people before she was thrown out on the road.

One of the six accused in the case, Ram Singh, allegedly committed suicide in Tihar Jail in 2013.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term.