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'Death Penalty For Repeat Rape Offenders': Bombay HC Upholds Constitutional Validity Of Section 376-E IPC

LIVELAW NEWS NETWORK
3 Jun 2019 7:03 AM GMT
Death Penalty For Repeat Rape Offenders: Bombay HC Upholds Constitutional Validity Of Section 376-E IPC
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"The stigma that is attached to rape victims is lifelong. In a sense, the offence of rape can be said to be graver than that of murder."

The Bombay High Court, on Monday, upheld the Constitutional validity of Section 376-E of IPC which provides that repeat offenders in rape cases can be awarded life imprisonment or death penalty. The Division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dere dismissed petitions filed by three convicts in the Shakti Mill gang rape case. Death penalty was awarded to Vijay...

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The Bombay High Court, on Monday, upheld the Constitutional validity of Section 376-E of IPC which provides that repeat offenders in rape cases can be awarded life imprisonment or death penalty.

The Division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dere dismissed petitions filed by three convicts in the Shakti Mill gang rape case. Death penalty was awarded to Vijay Jadhav, Mohammad Qasim Shaikh and Mohammad Salim Ansari by the Trial Court for the gang-rape of an 18-year-old call centre employee in July 2013 and 22-year-old photojournalist in August 2013.

Section 376-E states: "Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB or section 376D or section 376DA or section 376DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death."

Before the court, it was submitted that, by Section 376(e), the legislature treats the offence of repeat rape that does not cause homicide is harsher than the offence of murder. "How can one prescribe death in a case where another life has not been taken," was the argument put forth by Advocate Yug Mohit Chaudhary

The Government defended the new amendment and contended that the offence of rape, even when non-homicidal, deserved to be treated as the gravest offence, for rape was not just a physical attack, but it destroyed the victim's soul, her personality, and often, rendered the rest of her life meaningless.

Following are some important observations made in the judgment.

Offence of rape can be said to be graver than that of murder.

It would be highly unrealistic to compare cases of rape with the offence of murder, as the consequences are incomparable. A victim of rape undergoes a traumatic experience with which she has to live for the rest of her life. The effects of rape are not only physical, but also psychological. Her right to live with human dignity is infringed, which is constitutionally guaranteed to her under Article 21 of the Constitution. Rape is a highly reprehensible crime and demonstrates a total contempt for the personal integrity and autonomy of the victim. It is an `ultimate violation of self right to live with dignity'. The effect of rape can even have disastrous consequences, for example, can leave the person in a vegetative state; can compel her to commit suicide and can have lifelong impact on her mental and emotional psyche. Needless to state, that the stigma that is attached to rape victims is lifelong. In a sense, the offence of rape can be said to be graver than that of murder.

Punishment Not Disproportionate

We do not find that Section 376-E, by providing stringent punishment to repeat offenders, in anyway violates the principle of proportionality or is arbitrary or in anyway, violative of Articles 14 and 21 of the Constitution. Nor can it be said to be void for vagueness. As noted, there also exists a fair and just procedure in the Cr.P.C to deal with any contingency arising out of Section 376-E.

No Mandatory Death Sentence

Section 376-E does not foreclose an alternative sentence and does not, in anyway, make death mandatory. The sentence prescribed for repeat offence under Section 376-E is either, imprisonment for life which means for the remainder of one's life or with death.

Does not create any new category of Punishment 
Section 376-E is not the only Section which prescribes imprisonment for life, which means imprisonment for the remainder of one's natural life, but there are other Sections i.e. Sections 370(6), 370(7), 376-A, 376-D and recently, in 2018, Sections 376-AB, 376-DA, 376-DB, 376(3) were introduced, which prescribe the same sentence i.e. imprisonment for life, which means imprisonment till the remainder of one's natural life and that there is no challenge to the same

It cannot be said that Section 376-E creates a new category of punishment i.e. imprisonment for life, which means imprisonment till the remainder of a convict's life, unknown to the IPC and that there is no mechanism provided to execute the said sentence.

Convict Entitled To Claim Remission

An accused if convicted under Section 376-E, to suffer imprisonment for the remainder of his life, he would be entitled to claim remission, commutation, etc. as provided under Article 72 or Article 161, being the constitutional remedies.

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