Friday, February 6, 2015

High Court refuses to hear petition on death penalty

Jan 11, 2015 - Shahab Ansari | 

The Bombay high court has refused to hear the petition for confirmation of death penalty awarded to the Shakti Mills gang rape case accused till the petitions filed by them challenging the constitutional validity of the Act that paved way for court to sentence them to death is decided. A division bench of Justice V.K. Tahilramani and Justice A.K. Menon issued a direction last month that “this matter” (confirmation petition filed by government of Maharashtra to get death penalty confirmed by the high court) should be placed before them for further directions after both the petitions filed by convicts Mohammed Kasim Shaikh alias Kasim Bengali and Mohammed Salim Ansari, challenging the validity of law is decided.

A confirmation petition is filed by the state because whenever the trial court awards death penalty to any convict it says that the punishment should be implemented only after the high court confirms lower courts’ judgment. In this case too the trial court said so and hence the state filed a confirmation petition. Mostly, the confirmation petition and appeal filed by accused against the trial court judgment is heard together, but in this case the accused have not challenged the trial court order so far.

Now the high court has refused to hear the confirmation petition in the Shakti Mills gang rape case because two petitions filed on behalf of two accused challenging framing on them additional charges under Section 376 (E) of the Indian Penal Code, which provides for maximum sentence of death in the case of a repeat offence of rape, is still pending before the high court.

Defence lawyer Moin Khan on behalf of Salim Ansari and advocate Anjali Awashti on behalf of Kasim Bengali had challenged the framing of Section 376 (E) on accused when the trial court framed this charge after pronouncing them guilty of gang raping a photojournalist. The accused were already convicted for raping a telephone operator-cum-receptionist at the same place and were facing death penalty after the new charge was framed on them. They also challenged the constitutional validity of this section. They had challenged Section 376 (E) on the ground that it is contrary to the Constitution of India. This provision was added to the Section 376 i.e. rape after the December 2012 Delhi gang rape.

While hearing this appeal, a division bench of Justice Naresh H. Patil and Justice Abhay Thipse in March 2014 had asked the Attorney General of India to file a reply on the constitutional validity of Section 376(E) and the matter is still pending. Taking this into consideration, another bench of the high court has said that it would hear the confirmation petition only after said petition is decided.

Jadhav, Bengali, Ansari, Siraj Rehman and a minor boy raped the 22-year-old photojournalist when she had gone to the mill compound in central Mumbai with a male colleague on an assignment on August 22, 2013. Since Jadhav, Bengali and Ansari were also convicted and sentenced to life imprisonment for the gang rape of an 18-year-old telephone operator, they were awarded death penalty in the photojournalist’s rape case.

Source: [last accessed 06.02.2015] 

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