In a judgment of far-reaching ramifications, the Bombay High Court on Monday upheld the Constitutional validity of a provision introduced in Indian Penal Code after the 2012 Nirbhaya gangrape incident, providing for either life sentence or death penalty for “repeat” rape offenders.
Dismissing petitions filed by hree convicts sentenced to death in the much-discussed 2013 Shakti Mills Compound gangrape case challenging the constitutional validity of their punishment, A HC Bench of Justices BP Dharmadhikari and Revati Mohite Dere held that the newly incorporated section of 376 (E) of IPC “is not ultra-vires the Constitution.”
Upholding the punishment meted out to them under 376 E of IPC under which the three petitioners had been sentenced death by a sessions court in 2014, the two judges noted, “We are of the opinion that the Sec. 376 E of Indian Penal Code is not ultra-vires the Constitution and hence need not be quashed in the present case”.
Handing out first-ever capital punishment to the “repeat offenders” under the new provision 376 (E) of the rape law that came to be amended after the December 2012 gang rape in Delhi, Principal Judge of the trial court Shalini Phansalkar Joshi had observed, “The gang-rape accused were not only enjoying the act of sexual assault but also the survivor’s helplessness...It (crime) was executed in the most gruesome manner with no mercy or show of human dignity to the survivor.
The IPC section 376 E reads thus, “Whoever has been previously convicted of an offence punishable under section 376 or section 376A or sections 376AB or section 376 D or section 376 DA or section 376 DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death1.
The IPC came to be amended to incorporate Section 376E in it on basis of recommendations of Justice J S Verma Committee, which had been constituted to consider changes in law to deal more sternly with offenders in sexual offence cases following nationwide outrage over the brutal gangrape of a 23-year-old paramedical student in Delhi in December 2012.
It may be recalled that on April 4, 2014, a trial court — while handing out first-ever capital punishment to the “repeat offenders” under the new provision 376 (E) of the rape law that came to be amended after the December 2012 gang rape in Delhi — sentenced three “common” convicts in the two cases — Vijay Jadhav (19), Kasim Bengali (21) and Mohammed Salim Ansari (28), to death.
The three convicts were among the seven persons who had earlier been named as accused in the two Shakti Mill rapes that took place on July 31 and August 22, 2013. While the August 22 incident came to light first, the details of the first incident that took place on July 31 came out subsequently.
The photojournalist, working for a Mumbai magazine, was gang-raped on the evening of August 22 by five men in the defunct Shakti Mill compound at Mahalaxmi in south-central Mumbai, where she had gone along with her male colleague to take pictures for a magazine story. In the July 31 incident, the rape survivor — who works as a telephone operator with a private firm at Bhandup and lives at Mulund in north-east Mumbai — was gangraped in a similar manner in the Shakti Mill area.
After the trials into the two gangrape cases were conducted simultaneously, Principal Sessions Judge Shalini Phansalkar-Joshi had on March 21, 2014 found five of the seven accused guilty of criminal conspiracy, gang-rape, common intentions, unnatural sex, criminal intimidation, wrongful confinement, assault, destruction of evidence, etc. under the IPC and IT Act
Of the five convicted, the trial court awarded death sentence to the three “common” accused --- Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari – to death, while two juveniles were in the case were tried by the Juvenile Justice Board (JJB)
Later on July 15, 2014, the JJB convicted two juveniles arrested in connection with the much-discussed Shakti Mill gang rapes of a photojournalist and a telephone operator and sent them to a Nashik school for three years for rehabilitation and reformation.