Delhi gangrape: ‘To show mercy in such a heinous case… would be travesty of justice’https://indianexpress.com/article/news-archive/web/delhi-gangrape-to-show-mercy-in-such-a-heinous-case-would-be-travesty-of-justice/

Delhi gangrape: ‘To show mercy in such a heinous case… would be travesty of justice’

Excerpts from the order passed by Additional Sessions Judge Yogesh Khanna in the Delhi gangrape case.

THE SC WAY

In Bachan Singh v. State of Punjab (1980)… the Hon’ble Supreme Court held that extreme depravity constitutes legitimate special reason for award of death sentence…

In Machhi Singh v. State of Punjab (1983)… the Hon’ble Supreme Court held that… when the community feels that for the sake of self-preservation,the killer has to be killed,the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty…

In Devender Pal Singh vs. State (NCT of Delhi) (2002)… the Hon’ble Supreme Court held that… when the collective conscience of the community is so shocked,the court must award the death sentence…

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In Ram Singh v. Sonia & Ors. (2007)… the Hon’ble Supreme Court held that… it would be a failure of justice not to award the death sentence in a case where the crime was executed in the most grotesque and revolting manner…

In C. Munniappan v. State of Tamil Nadu (2010)… the Hon’ble Supreme Court… stressing upon the manner of commission of offence,if extremely brutal,the diabolical,grotesque killing,shocking to the collective conscience of society,the death sentence should be awarded…

In Ajitsingh Harnamsingh Gujral v. State of Maharashtra (2011)… the Hon’ble Supreme Court held that… distinction has to be drawn between ordinary murders and murders which are gruesome,ghastly or horrendous. While life sentence should be given in the former,the latter belongs to the category of the rarest of rare cases,and hence death sentence should be given…

KASAB & DHANANJOY

…counsel for the convicts had referred to (a) their young age; (b) their socio-economic status; (c) their clean antecedents and reformative approach as the mitigating circumstances in favour of the convicts. However,one needs to add that the Hon’ble Supreme Court has repeatedly held that the young age of the accused is not a determinative factor by itself against the award of the death sentence. Rather all the circumstances need to be taken together and proper weightage be given to each circumstance. The Hon’ble Supreme Court rather has re-held the death sentence in the following cases despite the young age of the convict:

(a) Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra (2012)…

(b) Atbir v. State (NCT of Delhi) (2010)…

(c) Vikram Singh v. State of Punjab (2010)…

(d) Shivu v. High Court of Karnataka (2007)…

(e) Jai Kumar v. State of M.P. (1999)…

(f) Dhananjoy Chatterjee v.State of West Bengal (1994)…

Similarly the socio-economic status of the convict or the convict being under any intoxication cannot be the determinative factors in sentencing as has been held in

a) Shimbhu v. State of Haryana 2013…

b) State of Karnataka v. Krishnappa (2000)…

I would like to refer to the contents of para 18 of Krishnappa’s case,wherein the Hon’ble Supreme Court has held that… the measure of punishment in the wake of rape cannot depend upon the social status of the convicts or the accused. It must depend upon the conduct of the accused,the state and age of the sexually assaulted female and the gravity of the criminal act… the social economic status,religion,race,caste or creed of the accused or the victims are irrelevant consideration in sentencing policy…

…Court must hear the loud cry for justice by society in cases of heinous crime of rape on innocent helpless girls of tender years,and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea of leniency would be wholly misplaced…

THE R-R TEST

Facts show that entire intestine of the prosecutrix was perforated,splayed and cut open due to repeated insertions of rods and hands. The convicts,in the most barbaric manner,pulled out her internal organs with their bare hands as well as by rods and caused her irreparable injuries,thus exhibiting extreme mental perversion not worthy of human condonation.

… Convict in pursuance of their conspiracy lured the victims into the bus… brutally gangraped the prosecutrix,inflicted inhuman torture and threw the defenceless victims out of the moving bus in naked condition,profusely bleeding on a cold winter night; their unprovoked crime demonstrated exceptional depravity of mind of the convicts.

… In the postmortem report… besides other serious injuries,various bite marks were observed on her face,lips,jaw,near ear,on the right and left breasts,left upper arm,right lower limb,right upper inner thigh (groin),right lower thigh,left thigh lateral,left lower anterior,genital… shows the beastly behaviour of convicts…

… The convicts did not stop after pulling out her internal organs… dragged the victims to the rear door of the bus… to be thrown out and when the rear door was found jammed,the victims were dragged by their hair to the front door and thrown out of the moving bus… the suffering inflicted on the prosecutrix was unparalleled. The brutality caused to her internal organs is extreme… the act of convicts calls for extreme penalty.

… These are the times when gruesome crimes against women have become rampant and courts cannot turn a blind eye on the need to send a strong deterrent message to the perpetrators of such crimes. The increasing trend of crimes against women can be arrested only once society realises that there will be no tolerance…

… subjecting of the prosecutrix to inhuman acts of torture before her death had not only shocked the collective conscience but calls for the withdrawal of the protective arm of the community around the convicts. This ghastly act of the convicts definitely fits this case in the bracket of rarest of rare cases…

HANG TILL DEAD

… The convicts,namely,convict Akshay Kumar Singh @ Thakur,convict Mukesh,convict Vinay Sharma and convict Pawan Gupta @ Kaalu are sentenced to death for offence punishable under section 302 Indian Penal Code. Accordingly,the convicts be hanged by neck till they are dead…

… The convicts are also informed that they can file an appeal against the judgment and order on sentence within a period of 30 days… the exhibits be preserved till the confirmation of the death penalty by the Hon’ble High Court.

ON FAST TRACK

Dec 16,2012

23-year-old is gangraped,brutalised on a moving bus.

Dec 17: FIR registered. Bus found. Police identify four accused,arrest two of them — Ram Singh (bus driver) and his brother Mukesh. Protests begin.

Dec 18: Two more held — Ram Singh’s neighbours Vinay Sharma (gym instructor) and Pawan Kumar (fruitseller).

Dec 19: Victim’s friend deposes in court. Vinay and Pawan claim though they were in the bus,they only assaulted the victim’s friend and did not rape the victim.

Dec 20: Victim’s friend testifies.

Dec 21: Police arrest fifth and sixth accused — Akshay Thakur (cleaner of the bus) and a minor. Protests reach India Gate and Raisina Hill.

Dec 23: Fast track court set up by High Court. Protests intensify. Constable Subhash Tomar is injured during the protests; dies two days later.

Dec 27: Victim,whose condition had deteriorated,is airlifted to Singapore for treatment.

Dec 29: Victim dies at hospital in Singapore.

Jan 2,2013

Fast track court for sexual offences against women inaugurated.

Jan 3: A 33-page chargesheet filed against five accused — Ram Singh,Mukesh Singh,Akshay Thakur,Pawan Gupta and Vinay Sharma.

Jan 5: Court takes cognizance of the chargesheet.

Jan 6: Pawan and Vinay claim they want to turn “approvers” in the case.

Jan 23: Justice Verma panel submits report suggesting changes in laws pertaining to sexual violence against women.

Jan 28: Juvenile Justice Board says sixth person arrested is a minor.

Feb 2: Court frames charges against five accused.

Feb 3: President promulgates ordinance framed on the basis of the Verma Committee report.

Feb 5: Trial begins.

Feb 28: Juvenile Justice Board frames charges against the minor.

March 11: Ram Singh found dead in Tihar jail.

July 15: Charges framed on kidnapping,dacoity against four accused.

July 19: Juvenile Justice Board holds minor guilty of robbing the carpenter,hours before gangrape.

Aug 21: Evidence closes in the trial at the fast track court.

Aug 22: Prosecution initiates final arguments in the trial.

Aug 26-27: Prosecution concludes arguments. Defence takes over.

Aug 31: JJB holds minor guilty of rape and murder. Sends him to special home for three years.

Sept 3: Trial ends. Verdict reserved.

Sept 10: Four accused convicted.

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Sept 13: All four get the death penalty,30 days to appeal.