June 8, 2019:
Division Bench said, this Legislature adds to the efforts being made by the nation to infuse deterrence in the wrong elements and to caution them of serious consequences which may ensue if they continue to tread on the same road.
Division bench headed by Justice B P Dharmadhikari along with Justice Revati Mohite Dere lately dismissed a bunch of petitions filed by three convicts in the Shakti Mill gang rape case.
Convicts Vijay Jadhav, Mohammad Qasim Shaikh and Mohammad Salim Ansari were awarded Death penalty by the Trial Court for the Gang Rape of an 18-year-old call centre employee in July 2013 and another 22-year-old photojournalist in August 2013.
While the newly added provision Section 376 E IPC was challenged by the Petitioners as being contrary to Article 21 of Constitution and they drew parallels with Section 303 of IPC.
It was defended by the State with a plea that the offence of rape, even when non-homicidal, deserved to be treated as the gravest offence, for rape was not just a physical attack, but it destroyed the victim's soul, her personality, and often, rendered the rest of her life meaningless. Section 303 IPC had no alternative punishment unlike Section 376 E IPC which provide for imprisonment for the remainder of that person’s natural life.
Read the Text of the Law here-
“Section 376-E. Punishment for repeat offenders:- “Whoever has been previously convicted of an offence punishable under section 376 or section 376-A or section 376-AB 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 death”.
Division Bench while discussing the issue observed-
''The Constitution Bench of the Apex Court in Mithu (supra), struck down Section 303 IPC, as unconstitutional, as there was no judicial discretion to award a sentence other than death. Only one sentence, which is of death, was prescribed under Section 303 IPC. In this context, the Apex Court took the view that the mandatory death sentence deprived the Court of its wise and beneficial discretion in the matter of life and death, making it harsh, unjust and unfair. Same is not the case here. In the case in hand, the Parliament has prescribed alternative sentences, leaving it for the Courts concerned to award what is considered suitable in the facts and circumstances of a given case, having regard to the gravity, severity and barbarity of the offence.
Section 376-E does not foreclose an alternative sentence and does not, in anyway, make death mandatory. The sentence prescribed for repeat offence under Section 376-E is either, imprisonment for life which means for the remainder of one's life or with death. Let us consider the punishments stipulated for the offences listed in Section 376-E. The offence under Section 376 is punishable with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and also with fine.
The punishment prescribed under Section 376-A, for causing death or persistent vegetative state of the victim is, rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death. The punishment under Section 376-D for gang rape is, rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life, which means, imprisonment for the remainder of that person’s natural life, and with fine.
The enhanced punishment prescribed under Section 376-E for repeat offence is imprisonment for remainder of one's life or death, the object being to send a strong signal to the accused persons not to indulge in the offence of rape. Repeat rape is to be viewed more seriously and therefore, a more stringent punishment is prescribed. This logic needs to be seen in Section 376-E. It is obvious, that the Parliament was aware of the needs of the society and the legal fetters, which did not permit it to provide “death”, as the only apt punishment for the second proved offence, after the first conviction.
In 2018, this intention of the Parliament became more explicit, when it added Sections 376-AB and 376-DB to the IPC and provided stringent punishment for the first offence itself i.e. a minimum of twenty years imprisonment, which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's life and with fine or with death.
Neither, the Union of India nor the State accept that death is mandatory under Section 376-E IPC.''
The Petitions preferred by the Convicts were dismissed with these final words-
''We have found that Section 376-E IPC neither introduces a discordant note nor introduces any new paradigm in the criminal justice administration. Legislative developments reveal that it only adds to the efforts being made by the nation to infuse deterrence in the wrong elements and to caution them of serious consequences which may ensue if they continue to tread on the same road. Attempt is to strengthen the law. Convicts loose their liberty under Article 21 to a certain extent and one who has committed a heinous offence of rape or has repeated it, cannot be allowed to put his life before the lifelong plight of the survivor.
Needless to state, that in cases where Section 376-E is applied, the accused would be entitled to all the procedural safeguards, which already exist in the Cr.P.C. Thus, there is no vagueness and confusion inasmuch as, there exists a procedure which is just, reasonable and fair to deal with the implementation of Section 376-E''.
Bombay High Court Judgement upholding Constitutional Validity of Section 376E IPC for Death Penalty in Rape 2019
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