MUKESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition has been filed under Article 32 of the Constitution of India by the petitioner-Mukesh Kumar - a death-row convict. The petitioner has filed the writ petition challenging the rejection of his mercy petition by the President of India and seeking commutation of his death sentence inter alia on the following grounds:-

(2.) The present writ petition relates to rejection of petitioner's mercy petition by the President of India. The petitioner is a death- row convict in Nirbhaya's case which relates to the gangrape of the victim in the moving bus in Delhi on the night of 16.12.2012. The trial court convicted the petitioner and other co-accused by judgment dated 13.09.2013. The High Court confirmed the death sentence by its judgment dated 13.03.2014 and the Supreme Court confirmed the same vide judgment dated 05.05.2017. In the judgment dated 05.05.2017 in Mukesh and Another v. State (NCT of Delhi) and Others (2017) 6 SCC 1, this Court after referring to various judgments and by elaborate reasonings held that there were no extenuating or mitigating circumstances. Likewise, the trial court and the High Court have also recorded detailed reasonings that the incident was brutal and falling within the category of "rarest of rare cases". The review petition was heard by the Supreme Court in open court and the same was considered and dismissed by judgment dated 09.07.2018. In the writ petition, the petitioner has enumerated dates and events right from day of petitioner's arrest i.e. 18.12.2012 from his village in connection with FIR No.413/2012 registered at Vasant Vihar P.S. till 14.01.2020 ­ the date on which the Supreme Court dismissed the petitioner's curative petition.

(3.) According to the petitioner, after exhausting all his remedies, he has filed mercy petition on 14.01.2020 addressed to the President of India under Article 72 of the Constitution of India and to the Lieutenant Governor under Article 161 of the Constitution and the through the Superintendent, Tihar Jail No.2. The Superintendent, Tihar Jail No.2 forwarded the petitioner's mercy petition along with his nominal roll, latest medical report of the petitioner, trial court judgment and details of the punishment of the petitioner to Officer in Charge ­ Legal, Prison, Tihar Jail for processing of the petitioner's mercy petition. The grievance of the petitioner is that despite a provision for recommendation by the jail superintendent in nominal roll, the Superintendent (Prison), Tihar Jail who had the opportunity to observe the petitioner on a daily basis is the person who is best placed to opine whether the petitioner has repented and reformed and is eligible for grant of pardon. According to the petitioner, his conduct in prison and his capacity to reform, is a crucial consideration for mercy.