Bombay High Court Commutes Death Penalty Of Three Convicts In 2013 Shakti Mills Gang Rape of A Photo-Journalist

The Bombay High Court on Monday commuted to life imprisonment the death penalty awarded to three repeat offenders in connection with the gang-rape of a photo-journalist inside Mumbai's defunct Shakti Mills compound, in 2013. Justices SS Jadhav and Prithviraj Chavan pronounced the order.The court held that the photojournalists' case cannot be considered their second offence as both cases were tried simultaneously. And therefore conviction under 376(E) would not sustain."This is not a case of previous conviction as both sessions cases were tried simultaneously and the conviction in both cases was recorded on the same day without giving the accused an opportunity to present place before the court mitigating circumstance."However, Justice Jadhav said the accused deserve imprisonment for the remainder of their natural lives in view of the law commission report that the death penalty does not serve the penological goal of deterance."The accused do not deserve any leniency, empathy or sympathy...Everyday the rising sun could remind them of their barbaric acts. And the night would lay them with a heavy heart filled with guilt and remorse." With the trial court's verdict in 2014, Qasim 'Bangali' Shaikh (21), Salim Ansari (28) and Vijay Jadhav (19) became the first convicts to be sentenced to death under section 376 (E) of the Indian Penal Code (IPC). Section 376(E) which provides life imprisonment or death for repeat offenders of rape was added to the IPC through the Criminal (Law) Amendment Act 2013, following outrage over the December 2012 Delhi gangrape. The Incident The incident dates back to August 22, 2013. A young photojournalist, who was accompanied by her colleague on assignment, was raped by four men and a minor inside the Shakti Mills compound. The Mumbai Police cracked the case within 24 hours and arrested all the accused within a week. Emboldened by the swift action, a 19-year-old telephone operator approached the police a month later to complain of gang-rape by five men, at the same location on July 31, 2013. Qasim Shaikh, Salim Ansari and Vijay Jadhav were named and identified by both victims in rape trials that were heard simultaneously. On March 20, 2014, the principal judge of the sessions court held 4 accused guilty in each case. Two minors were tried by the Juvenile Justice Board. The next day, accused in the telephone operator's case were sentenced to life imprisonment. The prosecution then filed an application for Section 376(E) to be added. The plea was allowed and on March 24, the judge sentenced Shaikh, Ansari and Jadhav to death in the photo journalists' case. Another accused was sentenced to life imprisonment. "The legislature has provided for this punishment in the rarest of rare cases. If this is not the case where death sentence prescribed by the law is valid, which is?", principal judge Shalini Phansalkar Joshi had said. The matter moved to the Bombay High Court for confirmation of death sentence under section 366 of the CrPC. Advocate Deepak Salvi assisted by Sahil Salvi appeared for the prosecution and Advocate Yug Chaudhry was appointed for the convicts. Advocate Payoshi Roy assisted him. Applicability of section 376E of IPC Chaudhry argued that Section 376E could be applied only if there was prior sentencing and not just conviction. This would mean the convict had the opportunity to reform despite which he had repeated the offence. Much like under section 75 of the IPC. However, in the present case, Chaudhry argued that the two convictions were merely 30 minutes apart. Conversely, Special prosecution Salvi argued that there was a difference between conviction and sentence. Section 376(E) mandates a conviction which is satisfied in this case. He argued that the basic rule is to interpret words in their literal meaning. And the intent of the legislature is to create a deterrence, he said. Deserves the Highest Prescribed Sentence Salvi argued that the acts perpetrated by the three amounted to "devastation of social trust" and invited the indignation of the society. He said the crime of such a nature creates a "fear psychosis" and definitely falls in the category of rarest of the rare cases and hence deserves the highest prescribed sentence, that is death. "In this case in hand, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons, viz., the assault on the prosecutrix and her colleague, tying and threatening to kill him; disrobing the victim; sexually assaulting the victim etc.; committing violent sexual assault by all the convicts; their brutish behavior in having anal sex with the victim forcing her to perform oral sex." He argued that the medical examination of the photojournalist demonstrates that she has developed the post-traumatic stress disorder, convicts did not leave any stone unturned in ravishing...

Bombay High Court Commutes Death Penalty Of Three Convicts In 2013 Shakti Mills Gang Rape of A Photo-Journalist

Sharmeen Hakim

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