Nirbhaya Gangrape: ‘Mukesh Kumar Falsely Implicated; Not Present At Scene Of Crime,’ Reiterates Advocate ML Sharma

A Supreme Court bench of Chief Justice Dipak Misra, Justice R Banumathi and Justice Ashok Bhushan on Monday admitted the review petition against judgment dated May 5 of the court upholding the death sentence awarded by the Delhi High Court in the 2012 Nirbhaya gangrape case.

The petition under Article 137 of the Constitution read with Order XLVII of the Supreme Court Rules, 2013, filed on behalf of convict Mukesh Kumar, challenges the impugned judgment on the ground that the aforesaid convict is falsely implicated and that he was not present at the crime scene at the time of the unfortunate incident on December 16, 2012.

Advocate ML Sharma, appearing for Mukesh Kumar, requested the bench to reconsider the imposition of capital punishment on his client, contending, “The disclosure statements for the purpose of section 21 of the Indian Evidence Act, 1872, are tainted with custodial torture in respect of which a writ petition was also filed by Mukesh before the Delhi High Court. There are a plethora of judgments since Sunil Batra vs Delhi Administration [1980 SCR (2) 557] whereunder the admissibility of evidence obtained through illegal means is discussed.”

He also relied on the special police diary containing dying declaration dated December 21, 2012, of the victim recorded by the Investigating Officer wherein the name of Mukesh does not appear. Further, he referred to the mobile phone recovered from the person of Mukesh Kumar from which a call was made at 8.54 pm on the night of the crime to co-accused Ram Singh (since deceased), emphasising that the testimony of neither the prosecutrix nor the informant mentions boarding of the bus wherein the crime is alleged to be committed by Mukesh thereafter. Lastly, the driver’s license recovered from Mukesh pertains to two-wheeler vehicles and not heavy vehicles like the bus which Mukesh is alleged to have driven during the commission of the crime.

Sitting in appeal, the Supreme Court had in May 2017, refused to attach any weight to the defence objections of delay in filing of FIR, non-mentioning of assailants’ names in the FIR, credibility of the testimony of the informant or the alleged tampering of the CCTV footage.

The submission regarding non-compliance with the provisions of sections 235(2) and 354(3) of CrPC also had not influenced the judgment. The top court had also declined to take into consideration mitigating factors such as young age, poor and rural background, family circumstances, lack of criminal antecedents and good conduct in prison of the convicts to commute the death sentence to life imprisonment, while observing, “The accused may not be hardened criminals, but the cruel manner in which the gang-rape was committed in the moving bus; iron rods were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold wintery night of December, shocks the collective conscience of the society. The present case clearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’. If at all there is a case warranting award of death sentence, it is the present case.”

On September 13, 2013, the additional sessions judge of Saket District Court Complex, finding the accused guilty under, inter alia, sections 365-366, 376(2)(g), 377, 302 and 307 of the IPC read with its section 120 B had ordered them to be hanged till death. The said order was upheld by the Delhi High Court in appeal by judgment dated March 13, 2014, and thereafter by the Supreme Court.

The apex court on Monday allowed review petitions to be instituted on behalf of the remaining 3 convicts, namely Pawan Kumar Gupta, Akshay Kumar Singh and Vinay Sharma. Further, the court directed the present petition along with these connected matters to be listed for further arguments on December 12.