One of the four convicts in the Nirbhaya rape and murder case, Pawan Kumar Gupta, on Wednesday moved the Delhi High Court claiming that he was a minor at the time of the incident, in 2012.
He has claimed that his ossification test was not done at that point and should be given the benefit of that.
The Delhi HC will hear the matter tomorrow.
Kumar's counter comes after the Supreme Court, on Wednesday, dismissed the petition filed by another convict, Akshay Singh, seeking review of SCs 2017 judgment upholding his death penalty.
Reacting to the SC’s verdict, Nirbhaya’s mother Asha Devi said that she was very happy.
She also broke down and cried at Delhi’s Patiala House court later in the day when the court said that a death warrant for the hanging of the four convicts in the 2012 gang-rape, torture and killing of her daughter in December 2012 would have to be postponed.
“Wherever we go, we are told about the rights of the convicts. What about our rights?”Asha Devi, Mother of Victim
Singh's counsel, AP Singh told the Supreme Court that Singh wants to file mercy petition before the President of India and sought three weeks time to file it. However, Solicitor General Tushar Mehta said that under law, one week is the time prescribed to file a mercy petition before the President. The SC bench said that the petitioner, Singh, can avail the relief of a mercy petition within that time.
The SC bench added that considering the submissions, the petitioner had sought to assail the facts yet again, which could not be done at this stage. The bench also pointed out that the grounds being raised now are identical to the ones raised in the review petitions filed in this case by other convicts, which had been dismissed, according to Bar & Bench.
Saying that they did not see any error in the record, the apex court dismissed Singh’s petition.
Convict’s Lawyer Furnishes ‘New Facts’
The court heard arguments by the convict's lawyer AP Singh, who argued that the decision of the Supreme Court in 2017 confirming his conviction and death sentence should be reviewed as new facts about the case had come to light.
The ‘new facts’ raised by him included claims that the victim had been dosed heavily with morphine when she was being tested for the severe injuries caused to her. Singh sought to use this to cast doubts on her dying declarations.
He also sought to show a report from Maulana Azad Dental Institute to argue that bite marks on the victim could not have been caused by his client.
Questions over the death in prison while awaiting trial, of Ram Singh, one of the accused in the case, were also raised using revelations from retired Tihar Jail official Sunil Gupta in his book Black Warrant (written with journalist Sunetra Chaudhary).
The judges asked why Gupta hadn’t made these claims before, to which Singh said at least these were grounds to not give the death penalty.
‘No Mercy’: Solicitor General Tushar Mehta
Solicitor General Tushar Mehta opposed the review petition on behalf of the Delhi government. He also pointed out that the arguments by Singh had already been raised before.
Countering the arguments for mercy, he said that “there are crimes when humanity is put to shame. There are crimes when god cries that this girl could not be saved, and also that monsters were born. There can be no mercy in such a case.”
Mehta also criticised the way in which he felt the lawyers for the convicts were trying to delay the inevitable by filing cases and withdrawing them.
One Convict to Explore Last Legal Recourse
After the SC dismissed the review plea for the four convicts, lawyer for one of the death row convicts said on Wednesday that there is still a legal remedy of curative petition in the Supreme Court before filing mercy petition to the President.
Convict Mukesh Kumar's lawyer said that he is examining the option of filing a curative petition against the apex court order on 9 July last year by which it dismissed his review petition.
“The question of filing the mercy petition will arise only after I exhaust the remedy of curative petition.”ML Sharma, Advocate
Curative petition is the last legal recourse available to a person and its generally considered in-chamber.
SC Seeks Status Report from States, High Courts Over Rape Cases
Taking serious note of rising rape cases in India, the Supreme Court on Wednesday took suo motu (on its own) cognisance for assessment of the criminal justice system in response to sexual offences.
Referring to the Nirbhaya gang rape and murder case, the apex court said it had shocked the conscience of the nation and delay in such matters in recent times has created agitation, anxiety and unrest in the minds of people.
A bench headed by Chief Justice SA Bobde sought response and status report by 7 February 2020 from all the states and high courts on several aspects in such cases including probe, collection of evidence, forensic and medical evidence, recording of statement of victim and time frame for trial.
(With PTI inputs)
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