The Supreme Court up­holds death penalty for Nirb­haya Con­victs

Libertatem Magazine - - Contents - by Swar­nalee Hal­dar

Case

Mukesh & Anr. v. State for NCT of Delhi & Ors

Facts

The cold evening of Delhi on 16th De­cem­ber, 2012 could not have even re­motely planted the feel­ing in the twenty-three year old lady, a para-med­i­cal stu­dent, who had gone with her friend to watch a film at PVR se­lect city walk 2 mall, Saket, that in the next few hours, the shat­ter­ing cold night that was grad­u­ally step­ping in would bring with it the dev­as­tat­ing hour of dark­ness when she, along with her friend, would get into a bus at mu­nirka bus stand to be dropped at a par­tic­u­lar place; and pos­si­bly could not have imag­ined that she would be a prey to the sav­age lust of a gang of six, face bru­tal as­sault and be­come a play­ful thing that could be tossed around at their wild whim and her pri­vate parts would be rup­tured to give vent to their per­vert sex­ual ap­petite, un­think­able and sadis­tic plea­sure. The six made the young lady to suf­fer im­mense trauma and as a con­se­quence of which she died at a hospi­tal in Sin­ga­pore in spite of avail­ing of all the pos­si­ble treat­ment that the med­i­cal world could pro­vide. The friend of the girl luck­ily sur­vived. Af­ter get­ting thrown out of the bus along with the girl though ac­cused tried to run over them but they saved them­selves by their slight move­ments. It was their good for­tune that the night pa­trolling ve­hi­cle, a mo­tor­cy­cle, ar­rived and the said man, raj Ku­mar, pw-72, gave the shirt to the boy and con­tacted the con­trol room from which a bolero pa­trol van came and they brought a bed sheet and tore it into two parts and gave a piece to each of the vic­tims so that they could cover them­selves and feel civil. Then they took the vic­tims to Saf­dar­jung hospi­tal where treat­ment com­menced. The dy­ing dec­la­ra­tion was elab­o­rate where the pros­ecutrix has de­scribed the in­ci­dent in de­tail in­clud­ing the act of in­ser­tion of a rod in her pri­vate parts. She also stated that the ac­cused were ad­dress­ing each other with names like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vi­nay”. Once the pro­ceed­ings be­gan the trial court came to the in­evitable con­clu­sion that the in­ci­dent has been aptly de­scribed the pros­e­cu­tion wit­ness 1- the friend. His pres­ence was fur­ther con­firmed by the DNA anal­y­sis (As re­ported by Livelaw). the of­fence un­der sec­tion 376 (2)(g) ipc, the sharing of com­mon in­ten­tion and the joint­ness in com­mis­sion of rape is has been es­tab­lished by the pres­ence of all the ac­cused in the bus; their ac­tion in con­cert as es­tab­lished by the dy­ing dec­la­ra­tion of the pros­ecutrix and the ev­i­dence of pw-1, pres­ence of blood in the clothes of all the ac­cused, dna pro­file gen­er­ated thereon be­ing con­sis­tent with the dna pro­file of the vic­tim. The ac­cused were con­victed vide judg­ment and or­der dated 10.09.2013 and on the very next day of judg­ment i.e. On 11.09.2013, the ar­gu­ments on sen­tenc­ing were con­cluded. There­after, a sep­a­rate or­der on sen­tence was pro­nounced on 13.09.2013.

Coun­sel for the ap­pel­lants as well as the learned am­i­cus Mr. Raju Ra­machan­dran con­tended that no ef­fec­tive op­por­tu­nity was given to the ap­pel­lants to lead their de­fense on the point of sen­tenc­ing as man­dated un­der sec­tion 235(2) cr.p.c. and each of the ac­cused was not in­di­vid­u­ally heard in per­son on the ques­tion of sen­tence. Learned am­i­cus cu­riae, Mr. Raju Ra­machan­dran sub­mit­ted only the coun­sel for the ac­cused were heard and all the ac­cused were treated alike ir­re­spec­tive of their in­di­vid­ual back­ground and were sen­tenced to death, which is in clear vi­o­la­tion the man­date of sec­tion 235(2) cr.p.c. it was sub­mit­ted that sec­tion 235(2) cr.p.c. is in­tended to give an op­por­tu­nity to the ac­cused to place be­fore the court all the rel­e­vant facts and a ma­te­rial hav­ing a bear­ing on the ques­tion of sen­tence and, there­fore, salu­tary pro­vi­sion should not have been treated as a mere for­mal­ity by the trial court.

Sec­tion 235 cr.p.c. deals with the judg­ments of ac­quit­tal or con­vic­tion. Un­der sec­tion 235(2) cr.p.c., where the ac­cused is con­victed, save in cases of ad­mo­ni­tion or re­lease on good con­duct, the judge shall hear the ac­cused on the ques­tion of sen­tence and then pass sen­tence in ac­cor­dance with law. Sec­tion 235(2) cr.p.c. im­poses a duty on the court to hear the ac­cused on the ques­tion of sen­tence and then pass sen­tence on him in ac­cor­dance with law. Sec­tion 354(3) cr.p.c. man­dates that when the con­vic­tion is for an of­fense pun­ish­able with death or, in the al­ter­na­tive, with im­pris­on­ment for life or im­pris­on­ment for a term of years, the judg­ment shall state the rea­sons for the sen­tence awarded and in the case of sen­tence of death, the spe­cial rea­sons for such sen­tence. It is well-set­tled that sec­tion 235(2) cr.p.c. is in­tended to give an op­por­tu­nity of hear­ing to the pros­e­cu­tion as well as the ac­cused on the ques­tion of sen­tence

In case, sec­tion 235(2) cr.p.c. is not com­plied with, the ap­pel­late court can ei­ther send back the case to the ses­sions court for com­ply­ing with sec­tion 235(2) cr.p.c. so as to en­able the ac­cused to ad­duce ma­te­ri­als; or, in or­der to avoid de­lay, the ap­pel­late court may by it­self give an op­por­tu­nity to the par­ties in terms of sec­tion 235(2) cr.p.c. to pro­duce the ma­te­ri­als they wish to ad­duce in­stead of send­ing the mat­ter back to the trial court for hear­ing on sen­tence. In the present case, we felt it ap­pro­pri­ate to adopt the lat­ter course and ac­cord­ingly asked the coun­sel ap­pear­ing for the ap­pel­lants to file af­fi­davits/ma­te­ri­als on the ques­tion of sen­tence. Con­se­quently, vide or­der dated 03.02.2017, the court di­rected the learned coun­sel for the ac­cused to place in writ­ing, be­fore this court, their sub­mis­sions, what­ever they de­sired to place on the ques­tion of sen­tence. In com­pli­ance with the or­der, Mr. Sharma learned coun­sel on be­half of the ac­cused A-2 Mukesh and A-5 Pawan and Mr. A.P. Singh, learned coun­sel on be­half of the ac­cused Ak­shay Ku­mar Singh, Vi­nay Sharma and Pawan Gupta filed the in­di­vid­ual af­fi­davits of the ac­cused

Ar­gu­ments

Is there some­thing un­com­mon about the crimes which re­gard sen­tence of im­pris­on­ment for life in­ad­e­quate Whether there is no al­ter­na­tive pun­ish­ment suit­able ex­cept death sen­tence. Where a crime is com­mit­ted with ex­treme bru­tal­ity and the 422 col­lec­tive con­sciences of the so­ci­ety is shocked, courts must award death penalty, ir­re­spec­tive of their per­sonal opin­ion as re­gards de­sir­abil­ity of the death penalty. By not im­pos­ing a death sen­tence in such cases, the courts may do in­jus­tice to the so­ci­ety at large.

Judg­ment

The court ex­plained that based on var­i­ous case laws for award­ing death sen­tences the court needed to an­a­lyze the na­ture and the man­ner of the act com­mit­ted by the ac­cused, and the ef­fect it cast on the so­ci­ety and on the vic­tim’s fam­ily, are to be weighed against the mit­i­gat­ing cir­cum­stances stated by the ac­cused and the scope of their re­form, so as to reach a def­i­nite rea­soned con­clu­sion as to what would be ap­pro­pri­ate pun­ish­ment in the present case- ‘death sen­tence’, life sen­tence com­mutable to 14 years’ or ‘life im­pris­on­ment for the rest of the life’ the court ex­plained ; “the di­a­bol­i­cal man­ner in which crime was com­mit­ted leaves one star­tled as to the per­vert men­tal state of the in­flic­tor. On top of it, af­ter hav­ing failed to kill her on the spot, by run­ning the bus over her, the vic­tim was thrown half naked in the win­tery night, with griev­ous in­juries. The brazen­ness and cold­ness with which the acts were com­mit­ted in the evening hours by pick­ing up the de­ceased and the vic­tim from a pub­lic space, re­flects the threat to which the so­ci­ety would be posed to, in case the ac­cused are not ap­pro­pri­ately pun­ished. More so, it re­flects that there is no scope of re­form. The acts com­mit­ted so shook the con­science of the so­ci­ety. Crimes like the one be­fore us can­not be looked with mag­na­nim­ity. Fac­tors like the young age of the ac­cused and poor back­ground can­not be said to be mit­i­gat­ing cir­cum­stances. Like­wise, post-crime re­morse and post-crime good con­duct of the ac­cused, the state­ment of the ac­cused as to their back­ground and fam­ily cir­cum­stances, age, ab­sence of crim­i­nal an­tecedents and their good con­duct in prison, in my view, can­not be taken as mit­i­gat­ing cir­cum­stances to take the case out of the cat­e­gory of “rarest of rare cases”. The court did not find any jus­ti­fi­ca­tion for con­vert­ing the death sen­tences im­posed by the courts be­low to ‘life im­pris­on­ment for the rest of the life’. The court also added “the ac­cused may not be hard­ened crim­i­nals; but the cruel man­ner in which the gang-rape was com­mit­ted in the mov­ing bus; iron rods were in­serted into the pri­vate parts of the vic­tim; and the cold­ness with which both the vic­tims were thrown naked in cold win­tery night of De­cem­ber, shocks the col­lec­tive con­science of the so­ci­ety” the present case clearly comes within the cat­e­gory of ‘rarest of rare case’ where the ques­tion of any other pun­ish­ment is ‘un­ques­tion­ably fore­closed’. If at all there is a case war­rant­ing an award of a death sen­tence, it is the present case.

Learn­ing out­come

The statis­tics of na­tional crime records bureau which I have in­di­cated in the be­gin­ning of my judg­ment show that de­spite the progress 428 made by women in ed­u­ca­tion and in var­i­ous fields and changes brought in ideas of women’s rights, re­spect for women is on the de­cline and crimes against women are on the in­crease. Of­fenses against women are not a women’s is­sue alone but, hu­man rights is­sue. In­creased rate of crime against women is an area of concern for the law-makers and it points out an emer­gent need to study in depth the root of the prob­lem and rem­edy the same through a strict law and or­der regime. With this judg­ment, the court has en­sured that the hu­man lust won’t be al­lowed to take such a de­monic form.

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