Former additional solicitor general Sidharth Luthra, who appeared for Delhi Police in the Nirbhaya gang-rape and murder case in the Supreme Court, and got the death sentence confirmed on May 5, 2017, has pointed out that the accused might have had different roles in the crime. However, that has not stopped him from defending the conviction and death sentence.
Luthra, however, said they deserved equal punishment as the law mandated it.
Excerpts from an interview with him are as follows.
You appeared for Delhi Police in the Supreme Court in the Nirbhaya matter and convinced the court to award a death sentence to the accused. But the SC judgment had contradictions. For instance, there is no scientific proof of rape by at least the three convicts – Pawan, Mukesh and Vinay.
The DNA from blood spots found on their clothes matched the DNA from Nirbhaya’s blood. Was that enough for the death sentence for these three?
Death sentence to the convicts was not awarded for the act of rape.
As per the order on the sentence of the Trial Court, which was upheld till the Supreme Court, the death sentence was awarded to the convicts for the offence of Section 302 of the Indian Penal Code (murder). The measurement of punishment in a given case must relate to the manner of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. The imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals.
A civilised society demands and expects that the courts should impose punishment befitting the crime while upholding the rule of law to reflect public abhorrence of the crime.
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The question the defence lawyers raise is how you can decide the equal complicity of all the persons who were on the bus when you don’t have scientific evidence to prove that they all committed the crime? How can you term it common conspiracy and award death to all?
Section 35 of the IPC provides that where several persons are concerned in committing an act which is criminal only by a reason of its being done with criminal knowledge, each of such persons who join in the act with such knowledge is liable.
Section 34 and the connected Sections 35, 36, 37 and 38 of IPC create no substantive offence and while charging an accused person, it is not necessary to cite them in the charge.
Is it immaterial whether all were involved in rape and murder or only two or three of them were? That it is just because the law mandates similar punishment that all were hanged?
In gang-rape, it is not required that everybody commits the rape. If even one person commits rape and murder and others have actively participated or been involved in it, they will get a similar punishment.
Is there a distant possibility that one or two people might not have done anything?
It is incorrect to say that. The overwhelming evidence produced by the prosecution established beyond a reasonable doubt that all the persons were actively involved in the rape and murder of the deceased.
Where there were lack of scientific evidence to prove beyond a reasonable doubt that all were equally involved in the heinous and barbaric crime, was it was a fit case to be commuted to a life sentence?
It was proved beyond reasonable doubt, considering all facts and shreds of evidence that the crime committed by the convicts was a brutal, barbaric, heinous and of diabolical nature. It is for that reason that the death penalty as a punishment was imposed upon them.
Also read: For Nirbhaya’s Family, a Sense of Justice
Representative image. Photo: Reuters
Does this process show that the convicts did not get a good and competent lawyer who could have cross-examined prosecution witnesses well?
The convicts were given all reasonable opportunity to engage a lawyer of their choice. At various instances, the trial court also offered and appointed amicus curiae [a friend of the court] for the defence of the convicts. The competency of counsel is not a ground to allege that proper cross-examination did not take place.
It is relevant to mention here that the lawyers for the convicts who raised a doubt as to the insertion of the iron rod during the Supreme Court arguments, were the very same counsels who were involved at the trial stage as well. Further amicus was appointed in Supreme Court as well.
The police failed to prove who might have been responsible for the murder and there was no fingerprint found on the iron rod that they used. Should everyone then have been found equally guilty and hung?
The DNA profile generated from the iron rods was found to be consistent with the DNA of the victim. It was proven by way of call detail records and other scientific evidence, that all four of the convicts were present in the bus at the time of the incident.
The death sentence was awarded for the barbaric manner in which they committed the crime on the victim and the complainant (her friend).
The convicts with the sole intention of satisfying their sexual desire, picked up the complainant and the deceased from Munirka bus stand and ravished the deceased and caused such injuries that ultimately led to her death. They not only raped and sodomised the deceased, but also hit her, bit her and pulled out her internal organs portraying the most horrific conduct known to man.
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The victims were thrown out of the bus on a cold winter night in the middle of the road, naked and an attempt was also made to run them over so that there was no evidence against the convicts. They also made an attempt to destroy the evidence by washing the bus and burning the clothes of the victim and after performing the gruesome act, divided the loot amongst themselves.
The death sentence for the offence has been imposed for the inhumane, cruel and heartless manner in which the offence of murder was committed. It is not an isolated incident or act which warranted the imposition of the death penalty but is the culmination of multiple factors.
Nirbhaya’s friend, who was also a star eyewitness, narrated the whole story. The defence attacked his account as highly doubtful. They raised the fact that he told the police that he was mercilessly hit by rods several times but that his injuries were of ‘a very simple nature’. Did the court err by relying on this witness?
The Supreme Court, or any court for that matter, does not impose the death penalty on the reliance of only one circumstance or piece of evidence.
The evidence in a trial has to be read cumulatively and it has to be seen whether the prosecution has proved the facts beyond a reasonable doubt. In the instant case, the prosecution had proved the fact of the incident having occurred and the complicity of all the convicts in the crime beyond a reasonable doubt. Besides the eye-witness account of the complainant, there was the dying declaration, the recoveries, the forensic and scientific evidence which clearly established that the crime was committed by the convicts with a predetermined mind.
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The lawyers said his statements were full of contradictions. That he was in a very good position to narrate the whole story to the police in his first statement but he didn’t do that. He provided sketchy details initially.
I don’t agree. His evidence was also closely examined by all the three courts, and it was shown that his testimony was consistent throughout.
Furthermore, we must remember that an FIR is the starting point of the investigation. It is not necessary for it to contain all the facts. The mental and physical state, of both, of the victim and the eye-witness, immediately after the incident is also to be kept in mind. It was an extremely traumatic time.
They have also raised the fact that a sting operation emerged which showed the witness demanded and even received money for giving interviews in 2013. That too when his friend had met with a tragic end. How can the court award the death sentence on the story of such a witness?
In so far as your reference to a subsequent sting operation, I must say that what was and is relevant is material brought in evidence as per the requirements of reliability and admissibility under the Indian Evidence Act. There has been a meticulous examination of the evidence on record by all three courts.
Praveen Mishra is a Delhi-based reporter