In a significant judgement, the Bombay High Court on Monday upheld the constitutional validity of a provision introduced after the 2012 Nirbhaya gangrape case allowing life imprisonment or death penalty to repeat offenders in rape cases.
A bench of justices B P Dharmadhikari and Revati Mohite Dere dismissed the petitions filed by three convicts in the sensational 2013 Shakti Mill gangrape case challenging the constitutional validity of 376 (e) provision of Indian Penal Code provision under which they were sentenced to death for the repeat offence by a sessions court in 2014 in what was the first such conviction under the changed law.
The trio were convicted for gangraping a 22-year-old photo-journalist inside the abandoned Shakti Mills compound in central Mumbai on August 22, 2013 and for gangraping an 18-year-old telephone operator at the same place some months earlier.
"We are of the opinion that section 376 (e) of the IPC is not ultra vires to the Constitution and hence need not be quashed in the present case," the court said.
With dismissal of the petitions, another bench of the high court will now take up for final hearing appeals filed by the convicts challenging their conviction and death penalty imposed on them by a sessions court and also a petition filed by the state government for confirmation of their sentence.
Under 376 (e)provision which was introduced by the Criminal Law (Amendment) Act, 2013, repeat offenders in rape cases faced life imprisonment or a death penalty.
The amendment was introduced on the basis of recommendations of the Justice J S Verma Committee, which was formed to consider changes in law to deal more sternly with offenders in sexual offence cases following the nationwide outrage over the brutal gangrape of a 23-year-old paramedical student in Delhi.
The victim later died and was referred to as Nirbhaya (fearless) for her courage.
The petitions had been filed by Vijay Jadhav, Kasim Bengali and Salim Ansari, who were among the four convicted in April 2014 by a sessions court for gangraping the photo-journalist in August 2013. They were 19, 21, and 28 years old respectively at the time of the incident.
The court had then imposed death penalty on Jadhav, Bengali and Ansari as they were convicted for gang-raping the telephone operator at the same place months before raping the photojournalist.
The fourth convict, Siraj Khan, was sentenced to life imprisonment, and a minor accused was sent to a correctional facility.
The trio, in April 2014, approached HC challenging the validity of section 376 (e) of IPC and contended that the sessions court acted beyond its power in awarding them the death penalty.
They argued that, as per the Constitution, only the rarest of rare cases attracted capital punishment.
Therefore, the constitutional validity of section 376 (e) that treats more than one offence of rape as 'rarest of rare' needs to be examined, they argued.
Justifying the legislature's decision to provide for the death penalty for repeat offence of rape, the Union government had told HC that rape laws had been amended in 2013 to introduce a powerful deterrent against such crime.
Arguing on behalf of the Union, Additional Solicitor General Anil Singh told the court that section 376 of the IPC, that comprise the penal provisions for the offence of rape, had been amended following much deliberation and that none of the provisions introduced through the Criminal Law Amendment Act, 2013 were unconstitutional.
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