Nirbhaya convicts to be hanged together, not separately: HC

All the four convicts in the Nirbhaya gang rape and murder case are to be executed together and not separately, the Delhi High Court held on Wednesday while setting a week's deadline for them to avail of the remaining remedies.

If the convicts choose not to make any type of petition in seven days from now, the institutions/ authorities concerned will deal with the matter, as per the law, without further delay, it said.

Justice Suresh Kumar Kait refused to accept the Centre's contention to set aside a trial court's January 31 order relating to the common execution of death warrants of the convicts.

The Centre and the Delhi government had challenged the trial court's January 31 order staying "till further orders" the execution of all the four convicts in the case -- Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31), who are lodged in Tihar Jail.

"Since up to the Supreme Court, their fate has been decided by a common order and judgment, therefore, in view of the facts of..., I am of the considered view that death warrants of all the convicts be executed together but not separately," the judge said.

The high court was critical of the delay caused by the authorities in executing death warrants and the delay tactics adopted by the convicts to frustrate the warrants.

"I have no hesitation to say that after dismissal of criminal appeals on May 5, 2017 by the Supreme Court, nobody had bothered to execute the death warrants. They waited for the reasons best know to them, till Mukesh filed review petition before the Supreme Court on November 6, 2017 after 186 days and the same was dismissed on July 9, 2018," the judge said.

The court noted that Vinay and Pawan filed review petitions on December 15, 2017 which were dismissed on July 9, 2018.

"Even thereafter, all authorities concerned were sleeping and waited till Akshay filed petition, with 950 days delay, on December 10, 2019 and the same was dismissed on December 18, 2019. However, convicts are taking shelter of the Article 21 of the Constitution which is available to them till their last breath," it said.

The court said it cannot be disputed that the convicts have adopted delay tactics to frustrate the warrants and noted that Pawan has not filed curative petition and mercy petition, after dismissal of his review petition by the apex court on July 9, 2018.

"Therefore, in the interest of justice, I hereby direct the convicts to take steps if they wish to make any type of petition before any institutions/authorities available under law within one week from today, failing which this Court expects from the institutions/authorities concerned to deal, as per the law applicable on delay, if any, without further delay," the judge said.

The court said it cannot be disputed that "all convicts have been found to be guilty of a horrible, ghastly, gruesome and heinous offence of rape coupled with a bone chilling murder of a young girl which shocked the conscience of the society at large".

"However, so long as life lasts, so long shall it be the duty and endeavour of the Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation.

"Therefore, Article 21 (right to life and personal liberty) is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable," it said.

The court also referred to the apex court's verdict in the case of Yakub Abdul Razak Memon, who was executed for his role in the 1993 Mumbai blasts, in which it was observed that the law permits the convict to move a subsequent mercy petition even after dismissal of mercy petition case of change in circumstances.

"Thus, convict Mukesh cannot be adversely segregated from the similarly placed convicts simply because he has been sincerely and earnestly pursuing his legal remedies," it said.

The court said as per the Prison rules, it was clear that if the appeal or application of one of the convicts is pending, the death sentence of all the convicts shall be postponed till the order on the appeal/application comes.

It is also mentioned in the proviso that if a petition for mercy has been submitted, the execution of the sentence shall further be postponed pending the orders of the President thereon.

"In said proviso, it is nowhere mentioned that if mercy petition of one convict is pending, the death sentence of other co-convicts shall be executed," the court said.

The trial court had on January 7 issued black warrants for the execution of all the four convicts in Tihar jail at 7 AM on January 22. However, they could not be hanged due to pendency of mercy petition of one of them.

On January 17, the trial court fixed February 1, 6 AM as the hanging date and time.

On January 31, the trial court again stayed the execution as the counsel for three convicts -- Pawan, Vinay and Akshay -- urged it to adjourn the matter "sine die" saying their legal remedies were yet to be exhausted.

While the mercy pleas of Mukesh, Vinay and Akshay have been rejected by the President, Pawan has not yet filed it.

Nirbhaya, 23-year-old paramedic student, was raped and brutally assaulted on the intervening night of December 16-17, 2012 inside a moving bus in south Delhi by six persons, before being thrown out on the road. She died on December 29, 2012.