NEW DELHI: The judiciary cannot decide whether a person will live or die as "execution kills criminals but not the crime."
This submission was made by two of the four convicts, sent to the death row in the sensational 'Nirbhaya' gang rape and murder case, today told the Supreme Court seeking a review of its 2017 verdict upholding the death penalty awarded to them.
A special bench headed by Chief Justice Dipak Misra reserved its order on the plea after hearing arguments on behalf of the condemned prisoners Vinay Sharma and Pawan Gupta who have sought a review of its verdict and asked the Delhi Police and the counsel for convicts to file written submissions by May 8.
The top court, on May 5, 2017, had upheld the verdict of the Delhi High Court and the trial court awarding capital punishment to four convicts--Mukesh (29), Pawan Gupta (22), Vinay Sharma (23) and Akshay Kumar Singh (31)-- in the sensational case that related to gang rape and murder of a 23-year-old paramedic student on December 16, 2012 in Delhi.
Lawyer A P Singh, counsel for the two convicts, fervently sought mercy for them saying retributive punishment of execution would not eradicate the crime from the society but would rather eliminate criminals who can be reformed.
"Execution kills the criminals and not the crime. How can judiciary decide as to who should live and who should die," the lawyer said, adding that the State cannot execute a convict.
The paramedic student was gang-raped on the intervening night of December 16-17, 2012 inside a running bus in South Delhi by six persons and severely assaulted before being thrown out on the road naked.
She succumbed to her injuries on December 29, 2012, at Mount Elizabeth Hospital in Singapore.
One of the accused in the case, Ram Singh, had allegedly committed suicide in Tihar Jail, while a convicted juvenile has now come out of the reformation home after serving a three-year term.
The bench, which also comprised Justices R Banumathi and Ashok Bhushan, summed up the submissions advanced by the defence counsel and said, "death penalty is in the statute book. Your submission is that this was not a 'rarest of rare' case warranting death penalty. A jail term of 20-25 years would suffice the cause".
During the hour-long argument, the court and the counsel for the police interrupted the convicts' lawyer several times and said in the review petition, only the "error apparent on the face of the record" of the judgement can be pointed out, as the entire evidence cannot be re-appreciated.
Singh referred to the recent murder case of a minor schoolboy and said the Haryana police had framed the bus driver in it and he only survived due to the scientific probe conducted by the CBI.
Linking this with the Nirbhaya case, he said that convicts, hailing from poor backgrounds, were framed by the police due to "public and media pressure" and scientific evidence like CCTV footage could have proved the innocence of Pawan, one of the convicts, as he was in a musical event at the time of incident.
He then referred to the alleged inconsistencies in the police probe and the trial.
The counsel for Delhi Police opposed it saying everything has been settled in the judgement.
The defence lawyer then raised the issue of juvenility of convict Pawan and said all convicts had no past criminal record and can be reformed.
The bench then asked Siddharth Luthra, counsel for Delhi Police, to provide materials on the aspect of alleged juvenility of Pawan and asked whether the convicts can be granted an opportunity for reformation.
The two convicts also referred to the teachings of Lord Buddha, Mahatma Gandhi on 'ahimsa' (non-violence) and even quoted the Prime Minister also.
The bench had earlier reserved its verdict on the review petition filed by Mukesh.
Akshay has not filed a review petition yet.
The apex court, while upholding the conviction in the case, had said that the "brutal, barbaric and diabolic nature" of the crime could create "tsunami of shock" to destroy a civilised society.