As execution nears, 2 Nirbhaya convicts move SC, Prez

The Supreme Court will consider on Thursday the curative petition of one of the four death row convicts in the Nirbhaya gang-rape and murder case, Akshay Kumar Singh while another convict, Vinay Kumar Sharma, has filed a mercy petition before President Ram Nath Kovind on Wednesday, his lawyer said.

A bench comprising Justices N V Ramana, Arun Mishra, R F Nariman, R Banumathi and Ashok Bhushan will take up the curative petition -- the last legal recourse available to a person in a court of law.

Advocate A P Singh, who represents Vinay, said he has filed the mercy petition with the President House and has got a receiving on it.

"I have filed mercy petition for Vinay before the President. I have submitted it by hand," Singh said.

The convict, Akshay Kumar Singh (31), said the apex court "in its confidence of handing out the death penalty as 'proportional' punishment on the basis of how brutal the crime is, exposes the inconsistency of this court and all other criminal courts in this country that have handed out the death penalty as panacea for public pressure and public opinion on violence against women, despite no evidentiary link between its selective application and reduction in crime".

Curative petitions filed by two other convicts -- Vinay Kumar Sharma and Mukesh Kumar Singh -- in the case have already been dismissed by the apex court.

The fourth convict, Pawan Gupta, has not filed a curative petition, which he still can if he chooses.

"The hollow claim that the death penalty creates a special kind of deterrence which is not caused by life imprisonment and that and life imprisonment amounts to 'forgiving' the criminal is backed by nothing more than a barely masked need to justify vengeance and retribution," Akshay Kumar Singh's plea said.

The placement of the 'collective conscience of the society' and public opinion has prejudiced the case of the petitioner and other co-accused as also amounted to a back-door entry of the media frenzy, the plea said.

"The present curative petition is also filed in recognition of the increasingly unsustainable judicial demand for the death penalty in light of the severely inconsistent application of its imposition by this court," the plea said.

Akshay contended in his plea that as many as 17 cases involving rape and murder in which various three judge benches of the apex court have commuted the sentence of death.

"One such case even involved the gang-rape and murder of a minor where death penalty was commuted to life imprisonment of 20 years rigorous imprisonment in review jurisdiction by this court on the basis that the convict did not have a prior criminal history and could still have the possibility of reformation.

"To this Court which routinely hails the rights all participants of the criminal justice system uninfluenced by majoritarian and media driven narratives, this inconsistency should cause an appropriate judicial answer," the plea said.

The apex court judgment does not have any explanation as to why the alternative of life imprisonment without the possibility of parole until the exhaustion of natural life is unquestionably foreclosed in his case, it said.

"Additionally, the fact that the Petitioner has a wife and children in Aurangabad, Bihar who he was supporting through a menial existence in New Delhi has been erroneously rejected as a mitigating circumstance.

"It is a gross miscarriage of justice that the Petitioner is going to bear the burden of the country proving to itself that it is safe for women by carrying out an act of brutality, despite the extent of torture already imposed upon the petitioner in jail or even his impending death having no connection or impact to other instances of rape or murder which this country aims to tackle," he said.

Akshay sought to know from the apex court what danger could the Petitioner pose to society if he is kept alive within the four corners of his cell and allowed to earn a meagre income for his family within the prison.

"The petitioner has seen many life convicts who were ridden with poverty but at least could send little amounts home to their poverty ridden families. The petitioner puts to this court why an imprisonment to the end of his life will not satisfy 'the collective conscience' despite the only difference between such a sentence as opposed to the death penalty is the celebration of violence that will soon follow after the death of the Petitioner in the hands of the state's machinery.

The plea said that "such a celebration would not make the populace less averse to violence, but in fact more keen to engage in violence in the name of justice."

Referring to the Justice J S Verma committee report, he said it has advocated against giving the death penalty for offences of rape and murder.

Highlighting his poor socio-economic condition, Akshay said it is important mitigating circumstance which needs to taken into consideration by the court while sentencing, but in his case it was completely ignored.

He also pointed the possibility of reformation and lack of criminal antecedents as mitigating factors warranting the commutation of death sentence.

Earlier in the day, advocate AP Singh, representing Akshay, said the apex court registry has sought some more documents along with the petition.

The trial court has issued black warrants for the execution of all the four convicts -- Mukesh (32), Pawan Gupta (25) , Vinay Kumar Sharma (26) and Akshay -- at 6 am on February 1.

Their victim, a 23-year-old physiotherapy intern who came to be known as "Nirbhaya" (the fearless), was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi. She died of her injuries a fortnight later in a Singapore hospital.