New Delhi: In a last-ditch effort to escape the noose, Vinay Kumar Sharma, one of the four men sentenced to death in the Nirbhaya gang rape and murder case, filed a curative petition in the Supreme Court on Thursday.
A curative petition is the last legal remedy available to a convict.
On Tuesday, a Delhi court issued death warrants against Mukesh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Kumar Singh (31) and said they will be hanged on January 22 at 7 am in Tihar jail.
In his curative plea, Vinay said his young age has been erroneously rejected as a mitigating circumstance.
"The petitioner's socio-economic circumstances, a number of family dependants including ailing parents, good conduct in jail and probability of reformation have not been adequately considered leading to a gross miscarriage of justice," the plea said.
It said that the court's judgment has relied on factors such as "collective conscience of society" and "public opinion" in deciding the sentence to be imposed on him and others.
"The impugned judgment is bad in law as subsequent judgments of the apex court have definitely changed the law on death sentence in India allowing several convicts similarly placed as him to have their death sentence commuted to life imprisonment," the plea said.
It further said that after the pronouncement of the apex court's judgment in 2017 there have been as many as 17 cases involving rape and murder in which various three-judge benches of the top court have commuted the death sentence.
The petitioner has also cited the 2016 report on Death Penalty prepared by the National Law University, Delhi to state that, "the death sentence as a punishment is disproportionately visited upon the poor and the marginalised."
Jessica Lal murder case mentioned in petition
To support his contention further, the petition also points out,
"In the Jessica Lal murder case, the convict Manu Sharma/Siddharth Vashisht was given life imprisonment and not death sentence despite it being a brutal and unprovoked murder of a defenceless woman. The convict was a very powerful person from a political family...
This inequity of outcome … highlights the fundamental divide in the criminal justice system where the poor and the weak always suffer the ‘worst punishments, even when people from other classes are guilty of offences that are barbaric and heinous. It also indicates a systemic bias against the poor which has caused prejudice against the Petitioner.."
In view of such concerns, it is the petitioner's argument that the case out to be reheard in open Court.
The 23-year-old paramedic student, referred to as Nirbhaya, was gang-raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road.
She died on December 29, 2012, at Mount Elizabeth Hospital in Singapore.
On July 9, 2018, the apex court had dismissed the review pleas filed by the other three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.
One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.
A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term.
The top court in its 2017 verdict had upheld the capital punishment awarded to them by the Delhi High Court and the trial court.
What is Curative petition?
A curative petition may be filed by the convict after a review plea against the final conviction is dismissed. It is meant to ensure there is no miscarriage of justice. It is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber, unless a specific request for an open-court hearing is allowed.
Every curative petition is decided on the basis of principles laid down by the Supreme Court in Rupa Ashok Hurra Vs Ashok Hurra & another, 2002. This was a case of a matrimonial discord where the question of the validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.
The judgment held that technical difficulties and apprehensions over the reopening of cases had to give way to a final forum for removing errors in a judgment where administration of justice may be affected.
