Observing that “death puts end to the concept of repentance, sufferings and mental agony”, the Bombay High Court on Thursday commuted to life imprisonment the death penalty given to three men found guilty of gangraping a photojournalist in the abandoned Shakti Mills in central Mumbai on August 22, 2013.
Setting aside the death sentence, the HC observed, “Women are the backbone of every nation and therefore, they deserve their due respect and honour. Honour and respect for women are the marks of a civilized society. It may appear to the public at large that we play a counter majoritarian role. However, the Constitutional courts are bound to take into consideration the judicial mandate not by considering just individual rights or the rights of the criminal, but to follow ‘the procedure established by law’.”
It added, “We would observe that Section 376E (death penalty for repeat offenders of rape) of the Indian Penal Code is not a substantive offence, but is a punishment contemplated for repeat offenders… Death puts an end to the whole concept of repentance, any sufferings and mental agony… The statute has not prescribed mandatory death penalty. Although the offence is barbaric and heinous, it cannot be said at the threshold that the accused deserve only death penalty and nothing less than that. ”
Section 376E of the IPC was added through the Criminal Law (Amendment) Act, 2013, which was introduced following the 2012 Delhi gangrape case.
In March 2014, a sessions court in the city had awarded death sentence to three men and, for the first time, repeat rape convicts were given capital punishment under new laws enacted in 2013. Observing that there was no scope of leniency, the three convicts — Vijay Mohan Jadhav (18), Mohammad Kasim Shaikh Bangali (20) and Mohammed Salim Ansari (27) — were sentenced to death for repeat offence.
The three were also sentenced to life by the same court in another gangrape case, that of a 19-year-old telephone operator inside Shakti Mills in July 2013. The trials in both the cases were held simultaneously and conviction handed out the same day.
Accepting the prosecution’s argument that the three were repeat offenders and had to be dealt with an iron hand, the then sessions court principal judge Shalini Phansalkar-Joshi had termed the crime as “diabolic”.
Last month, a division bench of Justice Sadhana S Jadhav and Justice Prithviraj K Chavan of the High Court began hearing the death confirmation reference plea by the state government and appeal by the convicts against the trial court order in the case.
Advocates Yug Mohit Chaudhry and Payoshi Roy for the convicts submitted that the trial court order was based on wrong application of Section 376E of the IPC, which provides the death penalty for repeat offenders convicted for offences of rape, gangrape and murder. Chaudhry argued that Section 376E can be applied only if a convict has once undergone sentence and if he or she had opportunity to reform but committed repeated offence, which was not the case in the present matter.
Chaudhry had further submitted that the trial was conducted in an unfair manner with inadequate opportunity to the defence to make submissions on framing of charge under Section 376E of IPC and on quantum of sentence after conviction. The defence lawyers also said that the convicts were deprived of basic fundamental rights, pointing to their impoverished backgrounds and young age.
Justice Sadhana Jadhav who authored the 108-page judgement, noted, “The convicts deserve the punishment of rigorous Imprisonment for life ie. the whole of the remainder of their natural life in order to repent for the offence committed by them. The convicts in the present case do not deserve to assimilate with the society, as it would be difficult to survive in a society of such men who look upon women with derision, depravity, contempt and objects of desire… The conduct of the accused, and their bold confession to the survivor that she is not the first one to satisfy their lust, is sufficient to hold that there is no scope for ‘reformation’ or ‘rehabilitation’.”
The court also upheld life imprisonment awarded to the fourth convict in the case, Siraj Rehmat Khan. It deprecated the practice by lawyers adopting the process of asking the victim to give minute by minute details of the act of rape.
“Everyday the rising sun would remind them of the barbaric acts committed by them and the night would lay them with a heavy heart filled with guilt and remorse. We therefore feel that a sentence of rigorous imprisonment for the remainder of their natural life without any remission, parole or furlough would meet the ends of justice,” it held.
The bench, through another ruling, dismissed an appeal by another convict Mohammed Ashfaq Dawood Shaikh against life imprisonment awarded to him in the telephone operator gangrape case. The High Court took strong exception to examination of the rape victim by J J Hospital doctors who had followed the “degrading and unscientific archaic” two-finger test (per vaginal) performed on the telephone operator.
While refusing to interfere in the trial court order, the bench noted, “We hope that the State of Maharashtra would take necessary steps to shun all such unscientific and heavily criticized ‘two finger tests’. It appears that the Government of Maharashtra has formulated some guidelines. We expect and hope that the State will strictly adhere to the same.”