Bombay High Court Commutes Death Penalty Of Three Convicts In 2013 Shakti Mills Gang Rape of A Photo-Journalist

Justices SS Jadhav and Prithviraj Chavan pronounced the order.

The court held that the photojournalists' case cannot be considered their second offence as both cases were tried simultaneously. And therefore conviction under 376(E) would not sustain.

With the trial court's verdict in 2014, Qasim 'Bangali' Shaikh (21), Salim Ansari (28) and Vijay Jadhav (19) became the first convicts to be sentenced to death under section 376 (E) of the Indian Penal Code (IPC).

Section 376(E) which provides life imprisonment or death for repeat offenders of rape was added to the IPC through the Criminal (Law) Amendment Act 2013, following outrage over the December 2012 Delhi gangrape.

The Incident

The incident dates back to August 22, 2013. A young photojournalist, who was accompanied by her colleague on assignment, was raped by four men and a minor inside the Shakti Mills compound. The Mumbai Police cracked the case within 24 hours and arrested all the accused within a week.

Emboldened by the swift action, a 19-year-old telephone operator approached the police a month later to complain of gang-rape by five men, at the same location on July 31, 2013.

Qasim Shaikh, Salim Ansari and Vijay Jadhav were named and identified by both victims in rape trials that were heard simultaneously. On March 20, 2014, the principal judge of the sessions court held 4 accused guilty in each case. Two minors were tried by the Juvenile Justice Board.

The next day, accused in the telephone operator's case were sentenced to life imprisonment. The prosecution then filed an application for Section 376(E) to be added.

The plea was allowed and on March 24, the judge sentenced Shaikh, Ansari and Jadhav to death in the photo journalists' case. Another accused was sentenced to life imprisonment.

"The legislature has provided for this punishment in the rarest of rare cases. If this is not the case where death sentence prescribed by the law is valid, which is?", principal judge Shalini Phansalkar Joshi had said.

The matter moved to the Bombay High Court for confirmation of death sentence under section 366 of the CrPC. Advocate Deepak Salvi assisted by Sahil Salvi appeared for the prosecution and Advocate Yug Chaudhry was appointed for the convicts. Advocate Payoshi Roy assisted him.

Applicability of section 376E of IPC

Chaudhry argued that Section 376E could be applied only if there was prior sentencing and not just conviction. This would mean the convict had the opportunity to reform despite which he had repeated the offence. Much like under section 75 of the IPC.

However, in the present case, Chaudhry argued that the two convictions were merely 30 minutes apart.

Conversely, Special prosecution Salvi argued that there was a difference between conviction and sentence. Section 376(E) mandates a conviction which is satisfied in this case. He argued that the basic rule is to interpret words in their literal meaning. And the intent of the legislature is to create a deterrence, he said.

Deserves the Highest Prescribed Sentence

Salvi argued that the acts perpetrated by the three amounted to "devastation of social trust" and invited the indignation of the society. He said the crime of such a nature creates a "fear psychosis" and definitely falls in the category of rarest of the rare cases and hence deserves the highest prescribed sentence, that is death.

"In this case in hand, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons, viz., the assault on the prosecutrix and her colleague, tying and threatening to kill him; disrobing the victim; sexually assaulting the victim etc.; committing violent sexual assault by all the convicts; their brutish behavior in having anal sex with the victim forcing her to perform oral sex."

He argued that the medical examination of the photojournalist demonstrates that she has developed the post-traumatic stress disorder, convicts did not leave any stone unturned in ravishing her in every inhuman way possible: "These acts itself demonstrate the mental perversion and inconceivable brutality as caused by the Convicts…It sounds like a story from a different world where humanity has been treated with irreverence."

No Proper Opportunity to Defend

Amicus Chaudhry contended that the charge under 376E had been improperly framed as it was done at the fag end after their conviction under section 376D (gang-rape) of the IPC. He argued that the sessions judge rejected the accused's application to recall witnesses for cross- examination and for an adjournment to argue on the quantum of sentence.

"Essentially they were facing a death charge for the first time and were given no opportunity to defend themselves."

Don't Deserve Death

Chaudhry presented affidavits of four experts to whom he had given transcripts of interviews with the accused, who analysed the same to help explain the lived experiences and socio economic circumstances that allowed the men to be violent and capable of such an offence. They also opined on the capacity to reform.

The men were never subjected to any correctional influence, not even school and normalised into a life of abject violence, he argued, adding, and hence do not deserve death. Especially when the minimum sentence is 20 years.