Just four days ahead of the scheduled hanging, one of the four death row convicts, Pawan Kumar Gupta, in the 2012 Nirbhaya gang rape and murder case moved a curative plea in the Supreme Court on Friday claiming juvenility to seek commutation of his death penalty into life imprisonment.
Gupta, against whom the death warrant has been issued for execution along with three other condemned prisoners on March 3, has filed the curative plea through lawyer A P Singh seeking setting aside of the apex court's earlier verdicts on appeals and review petitions in the case.
A 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (fearless), was gang raped and savagely assaulted in a moving bus in South Delhi on December 16, 2012.
She died a fortnight later.
Gupta pleaded that his age on the day of offence was 16 years and two months as per the school records last attended by him and "the age has not been determined in accordance with the procedures laid down under the Juvenile Justice Act".
This information was suppressed by the state throughout the proceedings, he claimed.
Pawan, the last death row convict in the case to move the top court with his curative plea, the last legal remedy available to a person, has also sought a stay on the execution of the black warrant issued by the trial court for the hanging.
"The impugned judgment has been occasioned by incomplete evidence being presented before this court and material evidence being suppressed by the respondent state," the plea said, adding the juvenility claim has not been dealt as per the procedures laid down in law and "this has led to a miscarriage of justice".
The convict's birth certificate showed he was a juvenile on the date of the incident and this information was not kept before the court, it said.
"The birth certificate from the school, shows that the petitioner was a juvenile on the date of the incident. That such procedure for age determination was also present under JJ Act, 2000 and the petitioner was entitled to the appreciation of his juvenility under the earlier Act which has been continued in the procedure the Act," it said.
It said the police was specifically directed to file a report regarding the petitioner's age before the Metropolitan Magistrate, but it did not produce his school records despite clear mandate of the JJ Act and rules.
"The plea of juvenility was not examined through an enquiry as required by the Juvenile Justice Act and Rules. Instead, reliance was placed a written statement allegedly of the parents of the petitioner. This is contrary to the procedure contemplated under JJ Act, 2015.
"The documents relied on by the prosecution to establish the date of birth were never proved in court and were not exhibited. These documents were not put to the petitioner as required by section," the petition said.
Gupta is the lone convict who has not exhausted his legal remedies of filing a curative petition -- last legal remedy available to a person -- and subsequent mercy plea with the President.
The trial court on February 17 issued fresh date for execution of death warrants for March 3 at 6 am for the four convicts -- Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31) -- in the Nirbhaya gang rape and murder case.
The mercy petitions of three convicts -- Mukesh, Vinay and Akshay -- have already been dismissed by the President.
The apex court had earlier dismissed separate pleas filed by Mukesh and Vinay challenging the rejection of their mercy petitions by the President.
Akshay has not yet challenged the rejection of his mercy petition.
Six people, including the four convicts and a juvenile, were named as accused. Ram Singh, the sixth accused, allegedly committed suicide in Tihar jail days after the trial began in the case.
The juvenile was released in 2015 after spending three years in a correctional home.
