More than seven years after a trial court treated them as “repeat offenders” and handed out the first-ever capital punishment to them under new provision 376 (E) of Indian Penal Code (IPC), the Bombay High Court on Thursday commuted the death sentence of three “common” convicts in the twin 2013 Shakti Mill gang rape cases to life imprisonment.
Quashing the death sentence awarded to the three convicts under the new section 376 E of the IPC that came to be incorporated in the law after the December 2012 gang rape in Delhi, a HC bench of Justices SS Jadhav and PK Chavan upheld the conviction of the convicts punishable under section 376D of the IPC, thus reducing the original capital punishment to rigorous imprisonment for life.
“While setting aside the sentence of death penalty, 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 Rs the procedure established by law’,” the two Judges observed in their 108-page judgement.
“At the cost of reiteration, we would observe that Section 376E of the Indian Penal Code is not a substantive offence, but is a punishment contemplated for repeat offenders under section 376D, 376DA, 376DB of Indian Penal Code . We would not take a pedantic approach to mean that it contemplates commission of an offence after the first conviction as under section 75 of the Indian Penal Code. But it would mean that the sentence of death penalty may be awarded in a case which is tried after the first conviction for a similar offence as in the case of Rajendra Wasnik,” the Judges noted.
The three convicts Vijay Jadhav (19) Mohammad Qasim Shaikh alias Qasim Bengali (21) and Mohammad Ansari (28)—whose death sentences have been commuted to rigorous imprisonment for life --are common convicts in both the July 31, 2013 telephone operator and August 22, 2013 photojournalist gang rape cases.
It may be recalled that on April 4, 2014, Principal Judge Shalini Phansalkar Joshi had awarded capital punishment to Vijay Jadhav (19) Mohammad Qasim Shaikh alias Qasim Bengali (21) and Mohammad Ansari (28), after noting the three convicts deserved death penalty for repeat offences under section 376 (E) of the IPC and that there was no scope of reformation of the trio.
"The gang-rape accused were not only enjoying the act of sexual assault but also the survivor's helplessness. ..It was executed in the most gruesome manner with no mercy or show of human dignity to the survivor,” the trial court Judge had observed then.
In their Thursday’s order, the two HC Judges alluded to the fact that the convicts had not preferred any appeal challenging the death penalty imposed upon them and said: “Death puts an end to the whole concept of repentance, any sufferings and mental agony”.
Maintaining that the trial Court had failed to answer as to whether the imposition of alternative sentence, as contemplated under section 376D of Indian Penal Code was unquestionably foreclosed, the HC bench said: “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”.
“We are of the opinion that in the facts of the present case, the convicts deserve the punishment of rigorous Imprisonment for life i.e. 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 two Judges noted.
“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 Rs reformation’ or Rs rehabilitation’,” the two Judges noted.
Referring to a Report of the Law Commission that “has after a due survey observed that the death penalty does not serve the penological goal of deterrence any more than life imprisonment”, the two Judges ruled” “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”.
Since three accused in the twin Shakti Mill gang rape cases --Jadhav, Bengali and Ansari --were the same persons, both the cases were inter-linked from the beginning. The three accused were part of a group of vagabonds that allegedly raped the two different girls on July 31, 2013 and August 22, 2013 respectively. 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 under the cover of tall grass and shrubs surrounding the dilapidated remains of the defunct Shakti Mill compound, where she had gone along with her male colleague to take pictures for a magazine story.
The five alleged culprits had fled the scene, after threatening the girl that they would post the photographs taken of her on their mobile phone on a social network site, if either she or colleague complained the matter to the police. However, they were arrested subsequently.
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 – had gone to Mahalaxmi, along with her boyfriend, when the accused accosted the two in the Shakti Mill area.
