Day Before Hanging, SC Dismisses Nirbhaya Convict's Review Against Rejection Of Juvenility Claim

A day ahead of his scheduled execution, the Supreme Court dismissed the review petition filed by Pawan Kumar Gupta, one of the four death-row convicts in the 2012 Delhi gangrape and murder case, against the order dated January 20, whereby his juvenility claim was rejected.

The trial court has ordered the hanging of four convicts on February 1.

A bench comprising Justices R Banumathi, Ashok Bushan and AS Bopanna dismissed the review in chambers.

The same bench had rejected his SLP while stating that the same claim was earlier rejected by the Court after due consideration.

Pawan has contended that the impugned order was passed in ignorance of the new evidence in the form of the school register of the school first attended by him, which conclusively shows that he was a juvenile on the date of the offence.

He was held to be a major by an order of Magistrate passed in 2013. The death row convict now stated that the order was passed without hearing him. He alleged that the police had not produced the school records in the case. No opportunity was given to his counsel to examine the papers submitted by police on the plea of juvenility, Pawan states in the petition.

He submitted that the school certificate came to light only after 2017, when his lawyers were collecting materials for preparing an affidavit detailing his mitigating circumstances, following the directions of the Supreme Court on February 3, 2017. He argued that the school leaving certificate showed his date of birth as October 8, 1996.

Referring to proviso Section 9(2) of the JJ Act and the SC decision in Upendra Pradhan v State of Orissa (2015), he stated that the claim of juvenility can be raised at any stage, even after the final disposal of the proceedings.

He claimed that the Prosecution had purposely suppressed the said record inasmuch as it had issued a notice under section 91 CrPC to the Principal of his school seeking all documents pertaining to his date of birth. However, this notice and its response were kept from the Court.

This suppression, he submitted, is particularly material since section 94(2) of the Juvenile Justice Act, 2015 categorically gives primacy to the school documents over the municipal records.

At the Trial stage, Pawan's age was determined on the basis of a municipal birth certificate however, he has contended that evidence of his parents' residence shows that the address shown in his birth certificate was not even their address at the relevant time.

In this regard the plea read,

"The Petitioner's age has not been determined in accordance with the procedure laid down in the Juvenile Justice Act and this has led to a miscarriage of justice."

He has further contended that such suppression provides him a cause to not only re-agitate his claim but also to seek accountability from the officers involved in the suppression.

In the interim, Pawan has sought an injunction restraining the Respondent from executing the sentence of death, scheduled for February 1, 2020.

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