"A Sea Of Change In Death Penalty Jurisprudence"; Death-row Convict In Nirbhaya Case Mukesh Files Curative Plea In SC

Another Death-row convict in the Nirbhaya Case. Mukesh has filed a Curative Petition in the Supreme Court against the judgment passed by the Court in Criminal Appeal No. 607 of 2017 by which he was sentenced to Death.

The Trial Court had issued the death warrant to hang all convicts- Mukesh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Kumar Singh (31) on January 22 at 7 am in Tihar jail.

In the Petition filed through Advocate Vrinda Grover it is submitted that subsequent to the impugned judgment, there has been a sea change in the jurisprudence of death sentencing in India, brought about by Supreme Court in several judgments. In a case where the very life of the Petitioner- the most cherished right under the Constitution- is at stake, upholding and executing the death sentence of the Petitioner despite a subsequent change in law would result in a gross miscarriage of justice.

Petitioner has cited the Judgment in Navneet Kaur v. State [NCT of Delhi] (2014) 15 SCC 155] where the Supreme Court quashed a death sentence in curative proceedings on grounds of change in law subsequent to the main appeal being dismissed.

The Petitioner submits that the Supreme Court has recently evolved the doctrine of "residual doubt", a lingering doubt which is not in the realm of 'beyond reasonable doubt', as a mitigating factor warranting the commutation of sentence of death.

The Petitioner's case has sufficient cause for there to be a residual doubt regarding his role in the offence warranting the commutation of sentence of death to life. Only the DNA of accused Ram Singh was recovered from the rectal swab of the deceased in this case. Further the odontology reports implicate only Ram Singh and co-accused Akshay Thakur. While there is forensic evidence linking the presence of the Petitioner to the scene of the offence, his case is at a different footing from his co-accused in terms of his culpability and involvement in the offence. Further, the disclosure statement of accused Ram Singh Ex PW74/F states that while all the accused participated in the crime, it was Ram Singh's acts alone that caused the grievous injuries to the deceased. In these circumstances, while the Petitioner's presence at the scene of the offence has been established, there are sufficient lacunae in the evidence against him to permit a residual doubt about the degree of his culpability in the offence, especially since the worst parts of the crime have been ascribed to Ram Singh.

It is also submitted that subsequent to the pronouncement of the impugned judgment there have been as many as 17 cases involving sexual violence and murder in which the sentence of death has been commuted to life by Supreme Court. This has created a sea change in the jurisprudence surrounding the death penalty.

Citing the landmark Judgment in Bachan Singh Case, it is submitted that in order to consider a case as 'rarest of rare', there has to be clear evidence led by the prosecution to show that the accused is beyond any probability of reformation. There has to be ample evidence that the accused is simply incapable of being reformed or rehabilitated before it can be said that the alternative option of life imprisonment is unquestionably foreclosed.

It is also submitted that In the present case the state has led no evidence in the form of a psychological/psychiatric assessment of the Petitioner. In fact the state has led no evidence whatsoever to show that the Petitioner is beyond the pale of reform and rehabilitation. In the absence of any such evidence, upholding the death sentence is a patent error of law.

Another ground taken by the petitioner is the inconsistency in sentencing. It is submitted that subsequent to the impugned judgment, specifically since November 2018 till date Supreme Court has commuted death sentences in 17 cases involving rape and murder. Since 2018, various High Courts all over the country commuted the death sentence of 74 convicts in offences pertaining to rape and murder. Therefore, a total of 91 death sentence cases were commuted from death to life imprisonment all over the country from 2018. While others similarly placed or worse off are spared the noose, the Petitioner is being subjected to the harshest penalty in the land for reason of sheer arbitrariness which is implicit in our judicial system. Imposing the death sentence on the Petitioner would be a grave violation not only of Article 21, but also of Article 14 of the Constitution of India.

Petitioner submits that death sentence upheld by the impugned judgment further was occasioned by the immense media frenzy and political pressure surrounding the case of the Petitioner. This has created an extremely unfavourable atmosphere against the Petitioner which has caused prejudice against him. As the Petitioner is from the lowest socio-economic strata of society, there is already tremendous systemic bias against him.

"To eliminate systemic and political bias against the Petitioner, it is imperative that this case be reheard in open court by the senior most judges of this Hon'ble Court in an atmosphere uninfluenced by immense media and political pressure, and taking cognizance of all the prejudices and hurdles that the Petitioner has had to face as an indigent person accused of a high profile offence".

The Additional Sessions Judge, through judgment dated 10.09.2013 in SC No.114/2013 convicted the Petitioner. The Petitioner was sentenced to death for the offence under section 302 of the Indian Penal Code vide order dated 13.09.2013.

The Petitioner was earlier represented by Advocate ML Sharma. On 30th December the Trial Judge had asked Vrinda Grover to meet Mukesh in Tihar Jail.

Another Petitioner Vinay Sharma has also filed Curative Petition in the Supreme Court.

https://www.livelaw.in/top-stories/nirbhaya-case-death-row-convict-vinay-sharma-files-curative-plea-in-sc-151463