Abolish Death Penalty India: Vijay Jadhav

Wednesday, May 29, 2019

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)

Friday, February 6, 2015

Shakti Mill gangrape: HC to hear death penalty petition on Dec 5

Bhavya Dore, Hindustan Times, Mumbai |

Updated: Oct 31, 2014 10:15 IST

The Bombay high court (HC) is yet to set a date for hearing the petition for confirming the death sentence of three Shakti Mill offenders, who were convicted for two gang-rapes. The matter has been adjourned to December 5. The three– Vijay Jadhav, Mohammad Qasim Shaikh, and Mohammad Salim Ansari – were convicted and sentenced in both gang-rape cases; that of a telephone operator in July 2013 and of a photojournalist in August of the same year.

The trio was sentenced to death, following the new section 376E of the Indian Penal Code, which allows for capital punishment to repeat rape offenders. Two of them had then moved the high court against the constitutional validity of this provision. The court sought to know the status of these petitions, which are pending before a different bench, on Friday.

Chief public prosecutor S Shinde asked for the petitions to be clubbed along with the confirmation cases. However, the division bench of justice VK Tahilramani and justice AK Menon said it “was not inclined” to do that. “What is in that petition?” the court further queried. The prosecutor informed the bench those petitions concerned whether the second conviction of the three men could be considered a subsequent one, and thus attract the death penalty.

“Let those writ petitions be decided, then we will see,” said the court. The petitions had been scheduled to be heard on Tuesday, but did not come up. They have now been listed in 2015. As a matter of procedure, a death sentence awarded by a trial court has to be confirmed by the high court. “Jail authorities do not intend to reform them [the accused], but want to put forth that they are culprits and cannot be reformed so that the facilities granted to them are stopped,” the application said, pleading that the authorities be directed by the court not to threaten or assault the five men, and to have a male officer search them instead of the woman officer.

source: http://www.hindustantimes.com/mumbai/shakti-mill-gangrape-hc-to-hear-death-penalty-petition-on-dec-5/article1-1281154.aspx [last accessed 06.02.2015]

The Death Penalty Scenario in India

India is one of 193 countries that retains the death penalty. Some judges have delivered landmark verdicts upholding the rights of death row prisoners, while debates continue advocating abolition or reform of sentencing policies. The Indian government remains committed to retention, asserting executions occur only in “rarest of rare” cases. The death penalty applies to crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or mentally-retarded person, and in certain cases of rape. Outrage over child rape and murder has intensified these discussions. After an unofficial eight-year moratorium, the government executed Ajmal Kasab (Mumbai attacks) in 2012 and Afzal Guru (Parliament attack) in 2013, both covertly and immediately after mercy petitions were rejected. Prior to this, Dhananjoy Chatterjee was executed in 2004 after 13 years on death row. Following these, many mercy petitions have been rejected, creating fear among death row convicts. Courts continue to hand down death sentences at an increasing rate. Empirical studies highlight the plight of death row prisoners. The India Exclusion Report 2017-18 found fair trial rights largely denied, with convicts often marginalized by caste, religion, poverty, and education. The Death Penalty Research Project (2015) documented socio-economic profiles and experiences of death row prisoners. Dr. Reena Mary George’s studies (2014, 2009) emphasized poverty, social exclusion, and dignity as central to death row experiences, and examined the human rights impact of the penalty. According to the National Crime Records Bureau 2015, 101 prisoners were on death row, with many sentences commuted to life. The “rarest of rare” doctrine introduced by the Supreme Court in the 1980s has not substantially limited death sentences, which have increased over the decades. Justice Joseph (2018) reaffirmed the Bachan Singh judgment but urged restriction of the death penalty to only those cases meeting its criteria. While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies? Reena Mary George