The hanging of the four convicts in the 2012 Nirbhaya gang-rape and murder case scheduled for Tuesday was deferred for the third time in six weeks by a court in yet another twist in the case marked by apparent delaying tactics by the condemned prisoners.
Postponing the execution till further orders, Additional Sessions Judge Dharmender Rana on Monday said the hanging cannot be carried out pending disposal of Pawan Gupta's mercy plea before the President, observing any condemned convict must not meet his "Creator" with grievance against courts for not acting fairly on the opportunity to exhaust legal remedies.
Earlier in the day, Pawan(25) moved a clemency plea before President Ram Nath Kovind, shortly after his curative petition was dismissed by the Supreme Court. The curative plea for commuting the death sentence was heard in chamber by a five-judge bench. It is the last legal remedy available for a convict to get any reprieve.
The hanging of the four men--Mukesh Kumar Singh (32), Vinay Kumar Sharma (26), Akshay Kumar Singh (31) and Pawan, who are lodged in Tihar jail, was fixed for March 3 in Tihar jail. Barring Pawan, the other three had in the previous weeks moved curative petitions and mercy pleas which were all dismissed.
The first date of execution--January 22--fixed on January 7 was postponed by the court to February 1. But on January 31, the court indefinitely postponed the hanging. On February 17, the court again issued fresh date for execution of death warrants for March 3 at 6 am.
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The court in its orders observed that the four convicts cannot be hanged since a mercy plea of one or the other convict was pending.
Going by the precedent set by President Kovind while dealing with the earlier three mercy petitions in the Nirbhaya case, Pawan's plea is also likely to be dismissed setting the stage for the possible execution of the four in the second half of this month.
According to Delhi Prison Rules, if a mercy petition is submitted, a 14-day period has to be given to the convict after the dismissal of the mercy plea.
The case has witnessed a series of twists and turns right after a Delhi court on September 13, 2013 awarded the death sentence to the four convicts, less than one year after the 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (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.
Review petitions and curative petitions were then filed in a staggered manner in the Supreme Court against the Delhi High Court order on March 13, 2014 confirming the death sentence. The last option of mercy petition before the President to escape the gallows was exercised by the convicts one by one.
"This shows the failure of our system. The whole world is watching how justice is being delayed in India," Nirbhaya's mother Asha Devi told reporters.
Asha Devi said she "loses hope every day" but the convicts will be hanged no matter what they do.
"I lose hope every day but I stand tall everyday. They would have to be hanged. There could not have been a worse case than Nirbhaya but still I am struggling to get justice. The courts are sitting and watching the drama."
Judge Rana passed his order on Pawan's plea seeking to stay the execution as he has filed a mercy petition before the President.
"Despite stiff resistance from the victim's side, I am of the opinion that any condemned convict must not meet his Creator with a grievance in his bosom that the courts of the country have not acted fairly in granting him an opportunity to exhaust his legal remedies," the judge said.
"As a cumulative effect of the discussion, I am of the opinion that the death sentence cannot be executed pending the disposal of the mercy petition of the convict. It is hereby directed that the execution of death warrants against all the convicts, scheduled for March 3 at 6 AM, is deferred till further orders," the judge added.
In its 6-page order, the judge said, "I have no hesitation in holding that mercy petition is an important constitutional legal principle 'Ubi jus ubi remedium', i.e., where there is a right, there is a remedy, I am of the opinion that the application(of Pawan) is very much maintainable."
While it was reserving the order on Pawan's fresh plea, the judge rapped the convict's lawyer A P Singh for acting so late in filing the curative and mercy pleas.
"You are playing with fire, you should be cautious" and added "one wrong move by anybody, and you know the consequences".
In the apex court, a five-judge bench headed by Justice N V Ramana, also rejected Pawan's application seeking stay on the execution of the death sentence
"The application for oral hearing is rejected. The application for stay of execution of death sentence is also rejected. The curative petition is dismissed...," said the bench, also comprising Justices Arun Mishra, R F Nariman, R Banumathi and Ashok Bhushan.
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