Senior Advocate Sanjay Hegde, one of the two amicus curiae appointed by the Supreme Court in the Nirbhaya case, has submitted before the Court that there is no evidence to prove conspiracy in the Nirbhaya rape and murder case.
He was arguing before a three-judge bench comprising Justice Dipak Misra, Justice R Banumathi and Justice Ashok Bhushan hearing the case.
He submitted that in the absence of proof of conspiracy by the appellants to cause the death of the prosecutrix, coupled with the failure of the prosecution to provide clear evidence with respect to the overt acts of each of the appellants in causing the death of the prosecutrix, the death sentences ought to be revisited.
“In the present case, insofar as the lack of planning or premeditation regarding the crime is concerned, it can be said that the accused did not plan the offence in detail or carry out the plan in a calculated manner which signifies the absence of anti-social predisposition or hardened criminality. While there is no doubt that the manner of the commission of the crime was brutal, it is premeditation and planning which determines the disposition of the accused, and the lack of pre-mediation or reflection on the actions of the accused should be considered in determining the possibility of reform of the accused.”
No Common Object:
Advocate Hegde submitted that the common object of the appellants to kill the prosecutrix, and to do so with the help of the iron rods, has not been established by the prosecution.
“The iron rods, which have been used in the present case, are an organic part of a bus, and are present at all times for use in the bus. The appellants in the present case were not armed with the iron rods with the plan of causing death to the prosecutrix, when they picked her up on the night of 16 December 2012. The common object of the appellants to kill the prosecutrix, and to do so with the help of the iron rods, has not been established by the prosecution. Further, the prosecution has not been able to ascribe individual acts on any of the appellants before this court with respect to the use of the iron rods, which resulted in the death of the prosecutrix.", he submitted.
No Crime Test, Criminal Test
Regarding the sentence, he submitted that while the impugned judgment considers the brutality of the crime, the mitigating circumstances of the crime test, including the nature of planning and committing the crime for each appellant through an individualised sentencing process, has not been considered.
“All appellants were convicted of the offences of rape and murder together, without considering the appropriate aggravating and mitigating circumstances for both the ‘crime test’ and the ‘criminal test’.”
Relying on precedents, Hegde submitted that, not considering the mitigating circumstance by giving it due weight and not offering special reasons to explain the balancing of the aggravating and mitigating circumstances goes against the sentencing policy laid down in s.354(3) of the CrPC which recognises that the death sentence is an exception to the general rule.
Sanjay Hegde was assisted by Anil Mishra Advocate on Record, Pranjal Kishore, S. Nithin, Atul Vinod. He also received assistance from Yash Vijay & Sahana Manjesh of Death Penalty Centre of National Law School Delhi.
Earlier, Senior Advocate Raju Ramachandran, the other amicus curiae in the case also submitted that the order on sentence passed by the Trial Court on 11.9.2013 and confirmed by the High Court, ought to be set aside for violating the fundamental norms of sentencing, constitutionally ingrained, statutorily reflected and judicially interpreted by the Apex Court. He also submitted that both the high court and trial court grossly erred in imposing death penalty to the accused without considering the circumstances relating to the criminals.
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.