New Delhi: The Supreme Court on Monday commenced final hearing on appeals of four condemned convicts in the 16 December gangrape and murder case against the Delhi High Court order upholding their death sentence.
A bench headed by Justice Dipak Misra started hearing appeals of the convicts, who contended that the High Court had erred in its finding and had wrongly upheld the trial court judgement awarding them death sentence.
The bench, also comprising Justice V Gopala Gowda and Kurian Joseph, asked advocate ML Sharma appearing for two convicts — Mukesh and Pawan — to start the argument.
Besides, Mukesh and Pawan, the other two convicts in the case, Vinay Sharma and Akshay Kumar Singh, had approached the apex court against the Delhi High Court's 13 March, 2014 verdict, which had termed that their offence fell in the rarest of rare category and upheld the death sentence awarded to them by the trial court.
The 23-year-old paramedic was brutally assaulted and gangraped by six persons in a moving bus in South Delhi and thrown out of the vehicle with her male friend on the night of 16 December, 2012. She died in a Singapore hospital on 29 December.
The prime accused, Ram Singh, had been found dead in a cell in Tihar Jail in March 2013 and proceedings against him were abated.
On 31 August, 2013, another accused, a juvenile at the time of the crime, was convicted and sentenced to three years in a reformation home. He was released from observation home in December last year.
During the arguments, Sharma questioned the testimony of the victim and said as per the chargesheet, the victim was so critically injured that she could not have recorded her statement before the magistrate, or could have been able to give a dying declaration, thus it could not be relied upon.
He also questioned the matching of DNA samples of the accused, saying the victim was so weak after the incident due to excessive blood flow from her body that blood of other person was transfused into her body, which would in all likelihood mean that she will have two DNAs.
Sharma, citing the Singapore hospital autopsy report of the victim, said there was no injury to her private parts.
"As per chargesheet, the main allegation of prosecution was that an iron rod was inserted into victim's private parts but the Singapore hospital autopsy report says there was no such injury," Sharma said.
Senior advocate Siddharth Luthra appearing for Delhi government said immediately after the incident, the victim was admitted at Safdurjung Hospital where fair amount of treatment was given to her. Her autopsy report was released by the Singapore hospital where she died during treatment.
The bench, after perusing the Singapore hospital report, rejected the contention of Sharma and said "nothing turns on that" and private parts were indeed damaged but it will deal with the issue at the later stage of arguments.
It asked the counsel for the convicts to first shatter the testimony of eye witness, which has been given due credence by the courts below and then tell whether gestures of the victim while recording her statement before a magistrate can be recorded as words or not.
"There was an eye witness (PW1) in the case. Both trial court and High Court have given credence to the testimony of the PW1, so you have to first shatter that," the bench said.
The hearing remained inconclusive and will continue on 8 April.
The Delhi High Court had on 13 March, 2014 upheld their conviction and award of the death penalty by terming the offence as "extremely fiendish" and "unparalleled in the history of criminal jurisprudence", adding that the "exemplary punishment" was the need of the hour.
It had also said if this case was not "the rarest of rare cases" then "there is likely to be none".
The convicts in their appeals have sought the High Court judgement be set aside as there was no "substance or material piece of evidence" and there were contradictions in the depositions of the victim and her friend, who had accompanied her in the bus, about the offence and the offenders.
It said the testimony of the SDM cannot be relied upon as she had deposed that the victim was "comfortable, happy and willing to record her statement."
"Can a patient who is on ventilator...be happy and comfortable," it said.
Disputing the veracity of the dying declaration of the victim, it said she was not fit enough to record her statement and hence, the statement made through gestures cannot be relied upon.