In a surprising and sudden move, the Supreme Court today gave some hope to the four death row convicts in the sensational Nirbhaya case saying it would re-examine and re-assess the capital punishment awarded to them by the trial court which was upheld by the Delhi High Court.
A bench headed by Justice Dipak Misra took the decision after accepting the contention of the two senior lawyers Raju Ramachandran and Sanjay Hegde who had been appointed as amicus curiae in the case.
Both of them had significantly argued that several principles of code of criminal procedure had not been followed while giving death sentence to all four convicts- Mukesh (24), Pawan (20), Vinay (22) and Akshay (29.
Significantly, Ramachandran had argued that charges and nature of crime alleged against each one of them were separate and all of them could not have been sentenced to death in one brush without hearing them separately on the point of sentence
LAWYERS CAN MEET THE CONVICTS IN JAILJustice Misra said that now that it has been decided to re-examine the sentence awarded to them for the crime, the court will give all the convicts opportunity to file affidavits along with documents stating the mitigating circumstances. Their lawyers have been allowed to meet them for the purpose at the Tihar jail. Their affidavits have been sought within two weeks.
Ramachandran had pointed out that the apex court had held in the famous 1980 Bachan Singh case that a balance sheet of "mitigating and aggravating circumstances" have to be drawn before sentencing a person to death.
He contended that the young age of the convicts, the fact that they had no criminal antecedents, the crime being "not pre-meditated" were mitigating factors in their favour.
"The crime was not premeditated," Ramachandran had said. "There is no evidence on record to deem the rape and murder was a pre-planned act. The accused did not know the victim and had any occasion to believe she would be present at the relevant spot on the fateful day. Trial court failed to even consider this factor which has been treated as a mitigating factor."
In 2012, five men and a juvenile lured the 23-year-old trainee physiotherapist and her male friend onto a bus in Delhi, where they repeatedly raped the woman and beat both with a metal bar before dumping them on a road. The woman, later dubbed Nirbhaya (meaning fearless), died two weeks later of her injuries. Four of the adults were sentenced to death while the fifth hanged himself in prison.
On August 31, 2013, the juvenile was convicted and sentenced to three years in a reformation home. He was released in December 2015.
GIST OF RAMACHANDRAN’S ARGUMENTSenior Advocate Raju Ramachandran had submitted before the Court 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 submitted that firstly, the statutory procedure prescribed under the Code of Criminal Procedure, 1973 was not strictly adhered to. Secondly, the tests prescribed by the Supreme Court to be followed while awarding death sentence have been overlooked and/or misapplied both by the Trial Court and the High Court.
GIST OF HEGDE’S ARGUMENTSenior Advocate Sanjay Hegde submitted before the Court that there is no evidence to prove conspiracy in the Nirbhaya rape and murder 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 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 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.”
Read the Order Here