By accepting an additional charge to mark three rapists as repeat offenders in the case of the gang rape of a young photojournalist at the deserted Shakti Mills compound in Mumbai, a trial court made a landmark order as the charge now gives the prosecution the option of seeking death sentence for the trio, the youngest aged 19, as according to the amendment made last year which introduced capital punishment for second-time rape convicts. Ujjwal Nikam, who is the special public prosecutor in both trials of gang rape at the Shakti Mills, one involving a 19-year-old telephone operator on July 31, 2013 and the other less than a month later on a 22-year-old photojournalist on August 23, which the judge had tried concurrently, sought the additional charge under section 376E of the Indian Penal Code which deals with punishment for repeat offenders in rape cases.
As Live Law had reported earlier , on March 20, the principal sessions judge Shalini Phansalkar Joshi had held the three accused Vijay Jadhav, Salim Ansari and Qasim Shaikh guilty under section 376(d) of the IPC for gang rape and other sections including wrongful restraint, criminal intimidation and sections under the IT Act. Five men, which included a juvenile, whose case was separated, were accused of raping her and assaulting her colleague. The minor accused who was the fifth accused in the cases was yet to be tried by a juvenile justice board.
Before the sentencing arguments could begin in the case of four convicted in the photojournalist's case, Nikam made an application to add the fresh charge. The court heard Nikam who said it was evidently clear that the three common convicts were previously convicted in the telephone operator's case, albeit, on the same day. The court had pronounced the guilty verdict in the telephone operator's case first. The copy of the judgment in the telephone operator case was present to the court by Nikam. The defense lawyers who said they were not provided with any copy of the judgment raised objections, stating that the additional charge cannot be raised at this stage. The contention of the lawyer was that the application was not maintainable.The defense advocates said they would appeal against the addition of the additional charge.
It was however, clarified by Nikam that he has not sought death sentence yet. The court adjourned the proceedings but declined to stay the matter for two weeks as sought by the defense. Theadditional charge under section 376E, IPC was quickly framed against the three accusedby the court. The judge explained the charge to them, that it attracts death sentence as the maximum punishment for repeat offenders in cases of gang rape, to which the trio pleaded "not guilty.''