Shakti Mills gangrape case: Convicts challenge IPC Section 376 (E) providing for death sentence in rape cases

Feb 22, 2019 21:59:51 IST

Mumbai: The counsel for the three men convicted in the Shakti Mills gangrape case in Mumbai raised questions before the Bombay High Court Friday on the legal soundness of Section 376 (E) of the Indian Penal Code under which they were awarded the death sentence in 2014.

Advocate Yug Chaudhry, representing the death row convicts Vijay Jadhav, Kasim Bengali and Salim Ansari, told the court the legislature had brought in several provisions of the Criminal Law Amendment Act that provides for, among other things, harsher punishment for rape, in "haste".

Representational image. Sachin Gokhale/Firstpost

Chaudhry questioned the idea behind Section 376 (E) that provides for the death sentence for a repeat offender of rape. He said while the section for enhanced punishment was introduced in the IPC through the Act, the legislature had failed to introduce a well-laid out procedure in the CrPC for the implementation of the new IPC section. "For instance, while the section provides that a person who has previously been convicted for the offence of rape can be awarded the enhanced sentence of death penalty in case of repeat offence, it does not clarify how much minimum time there must exist between the two offences or the conviction date of both the offences," Chaudhry argued.

"In the present case, the sessions court convicted the accused in two separate cases of rape committed a month apart. But the conviction in both the cases was awarded within a day from each other," he argued. Chaudhry argued that no provision of law must be implemented arbitrarily and the law mandated the CrPC lay down the procedure for implementing all penal provisions. He also cited previous judgments of the Supreme Court and some Law Commission reports that prescribed enhanced punishment for repeat offenders only after ascertaining the possibility of their reform after their first sentence.

A bench of Justices BP Dharamadhikari and Revati Mohite-Dere is conducting the final hearing on the writ petitions filed by the three convicts challenging the death sentence awarded to them under IPC Section 376 (E). In April 2014, a Mumbai court had found five persons guilty in the 2013 gangrape case. One of them, Siraj Khan, was sentenced to life imprisonment, while a second person, a minor, was sent to a correctional facility. Jadhav, Bengali and Ansari were sentenced to death under the then newly-introduced Section 376 (E) since they had also been convicted in a previous case of gangrape.

The three, however, moved the high court soon after their conviction, challenging the constitutional validity of the law under which they were sentenced to death for a repeat offence. The petitioners challenged the sessions court order allowing the prosecution to invoke the IPC Section 376 (E) when the trial was already underway. They also challenged the constitutional validity of this section, brought in by the Union government after the infamous 2012 Delhi gangrape case. In March 2013, the Union government amended the rape laws in the country, introducing several stringent provisions, including Section 376 (E). This section says if a person, who has been previously convicted for rape under the IPC Section 376, is subsequently found guilty in a similar offence, the courts can sentence him to imprisonment for the rest of his life, or, even award the death penalty.

On 19 March, 2014, the three petitioners were convicted for raping a city-based telephone operator. The next day, they were convicted for raping a photojournalist in the premises of defunct Shakti Mills in Mumbai. Both crimes had been committed in 2013 within a month from each other. While the sessions court was scheduled to begin arguments on their sentence, the Maharashtra government moved an application seeking framing of an additional charge under Section 376 (E) since they had also been convicted in another case of rape. The sessions court found merit in the submissions of the prosecution and in April 2014, awarded the maximum punishment of death to the three petitioners, noting they were repeat offenders.

While the state government filed a petition in the high court seeking that the death sentence be ratified, the three convicts filed pleas in the high court challenging the constitutional validity of the Indian Penal Code section under which they were awarded the punishment. The Central Government is likely to begin its arguments in the case Wednesday.

Source: https://www.firstpost.com/india/shakti-mills-gangrape-case-convicts-challenge-ipc-section-376-e-providing-for-death-sentence-in-rape-cases-6138101.html (accessed on 29 May 2019)

High Court refuses to hear petition on death penalty

Jan 11, 2015 - Shahab Ansari | 

Mumbai

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: http://www.asianage.com/mumbai/high-court-refuses-hear-petition-death-penalty-839 [last accessed 06.02.2015]