Vijay Jadhav vs The State of Maharashtra And Anr.

(commonly known as- The shakti mills Rape Case).

Facts Of The Case:
Incident
On the 22nd august 2013 a 22-year-old photo journalist was gang-raped by five men namely- Mohammed Kasim Hafiz Shaikh alias Kasim Bengali, Mohammed Salim Ansari, Vijay Jadhav Siraj Rehman Khan alias Sirju Mohammed Ashfaq Sheikh and two others unnamed juveniles at the premised of shakti mills Shakti Mills Compound, Mahalaxmi, Mumbai, Maharashtra, India.

As per the police statement the victim and her colleague left for the shakti mills compound at 5.00 pm to take some pictures of the deserted shakti. Both of the victims were attacked by these men and further, they tied up the male colleague of the victim and in turns raped the victim while keeping her threatened by sharp pieces of a broken beer bottle at her neck to not shout for help.

The rapists took photographs of the victim and threatened her to release them on social media if she tried to tell anyone about the incident, the victims were also forced to clean the crime scene and after the assault they were left at the railway tracks around 7.15 pm. The victim was admitted to Jaslok Hospital at Peddar Road and underwent medical treatment. She gave her statement to police on 26 August 2013 and was discharged on the night of 27 August 2013.

a similar incident was reported by a telephone operator at a private firm on the 19th September 2013. At the premises Shakti mill complex, the telephone operator was gang-raped and the assault was conducted on her male colleague. The three of the accused in the said case were also involved in the gang-rape case of the photojournalist.

Judgement By The Sessions Court:
These petitions arise in somewhat peculiar circumstances. The petitioners were tried for the offence punishable under Section 376 of the IPC and other offences, in two cases i.e. in Sessions Case Nos. 914 of 2013 and 846 of 2013. Both the cases were tried simultaneously and on 20th March 2014, the order of conviction was pronounced in both these trials. The Sessions Court adjourned the cases to 21st March 2014 for hearing the petitioners on the point of the sentence.

The learned Judge on the said date pronounced the sentence and awarded life imprisonment to the accused in Sessions Case No. 914 of 2013. Thereafter, in sessions Case No. 846 of 2013, the learned Special Public Prosecutor presented an application before the learned Sessions Judge under Section 211(7) of the Code of Criminal Procedure (`Cr.P.C') and prayed for framing of charge under Section 376-E as against the petitioners - Vijay Jadhav, Mohd. Kasim Mohd Hasim Shaikh and Mohd. Salim Mohd. Kudus Ansari. On 24th March 2014, the application was allowed by the learned session judge.

Vijay Jadhav, Mohammad Qasim Shaikh, and Mohammad Salim Ansari were convicted in both the gang-rape cases, while Siraj Khan and Mohammad Ashfaque Shaikh were found guilty in the photojournalist and telephone operator cases respectively.

On 21 March, the Mumbai sessions court awarded imprisonment for life to four of the accused in the telephone operator case.

Following the conviction of the three repeat offenders (Vijay Jadhav, Qasim Bengali, and Mohammed Salim Ansari) in both gang rapes, on 4 April prosecutor Nikam moved an application to add charges against them under section 376E of the IPC, which provides for the death sentence for repeated rape convictions. On 4 April 2014, the court awarded the death penalty to the three repeat offenders in the photojournalist rape case under section 376 E of the Indian Penal Code, 1860

Issues Before The High Court:
The issue before the Hon'ble High court is regarding the constitutional validity of Section 376-E inserted in the Indian Penal Code (`IPC') by the Criminal Law (Amendment) Act of 2013, with effect from 3rd February 2013.

The said Section reads thus:

376-E. Punishment for repeat offenders:

Whoever has been previously convicted of an offence punishable under section 376 or section 376-A or section 376-AB or section 376-D or section 376-DA or section 376-DB, 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".

Judgement:
On the 3rd June 2009, the Hon'ble High court of Bombay dismissed the petitions filed challenging the constitutional validity of section 376 E of the Indian Penal Code 1860 and declared it constitutionally valid as no merit was found to declare it unconstitutional.

The reasoning is given by the hon'ble high court was recorded and few of them are summarised as below:
Parameters to check the constitutional validity of a statue: the court quoted the decision of the Apex court of the State of Bihar and Ors. vs. Bihar Distillery Limited[1], para 17, has laid down certain principles, to be borne in mind while judging the constitutionality of an enactment. The Apex Court held, that the approach of the Courts, while examining the challenge to the constitutionality of an enactment:

1. is to start with the presumption of constitutionality;
2. to sustain the validity of the impugned law to the extent possible and should strike down the enactment only when it is impossible to sustain it;
3. not to approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed, much less inexactitude of language employed;
4. consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with;
5. strike down the Act, only when the unconstitutionality is plainly and clearly established; and, (f) Courts must recognize the fundamental nature and importance of the legislative process and accord due regard and deference to it.
    

Background and circumstances of Section 376-E: the hon'ble high court, considering the constitutional validity of a Statute, in this case, the constitutional the validity of Section 376-E, and the background and circumstances in which Section 376-E was inserted in the Criminal Law (Amendment) Act, 2013, were of the opinion that Section 376-E is not ultra vires the Constitution and as such is not required to be struck down.

Death of the victim is not the only cause for the death punishment: the court clearly stated that it is pertinent to note, that IPC itself recognizes offences, which fetch a death term, even if no death is caused, and as such, there is no merit in that under Section 376-E, the death sentence is not justified, as no death is caused.

Comparison of Murder and Rape offence is not justified: the court stated that, 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.

Leave the person in a vegetative state; can compel her to commit suicide and can have a 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.

Section 376 E is not a new category of punishment: the court also observed that, the nature of punishment to be imposed is well within the prescribed limit of punishment of life imprisonment and that the punishment will be awarded having regard to the nature of offence committed and would be proportional to the crime as well as the interest of the victim, whose interest is also to be taken care of by the Court and no new category of punishment has been created via this section.

Whether the punishment given under section 376 E of IPC violates article 14 and Article 21 of the Constitution of India: the court agreed upon the submissions made by the ASG, that there are certain offences in the IPC which prescribe death sentence for an act, even if the said act does not result in death.

They submitted that the offences of rape and murder are incomparable and that such a comparison is unrealistic in law, as, the consequences of both are different and that there can be no mathematical exactitude.

According to the learned counsel for the respondents, rape is far more graver offence than the offence of murder, inasmuch as, it takes the victim's right of life under Article 21 and the punishment given under section 376 E does not violate the principle of proportionality by prescribing a sentence of death, though no death is caused nor it violates the Articles 14 and 21 of the Constitution of India.

Analysis:
The offence of Rape is not merely a physical assault on the body of a female, it is an assault of the spirit of that victim, it may or may not result in the death of the victim but the rapist surely murder the soul of the victim leaving the helpless female in a vegetative state for a lifetime.

Though there is legislation, and stringent punishment, but such cases of sexual assault are committed by predators with impunity and fearlessly as if there is no law for the same. The punishment given under such legislation for such heinous crime should be in nexus with the intensity of the crime committed so that it does justice to the victim on the contrary giving accused a right to a fair trial and acting as a deterrent for the masses at large.

Given the circumstances these days where not only young girls or women but even children, new-borns or toddlers are not spared, the punishment for such crimes as hard as possible. It is not only a violation of the fundamental rights (article 21 and article 14) of a woman but also acts as evidence of a failed mechanism of women's safety in society.

The punishment of such grave offences should be as grave to at least come near to the pain and suffering of that victim. The section 376, 376 A, 376 AB, 376 D, 376 DA, 376 DB and section 376 E under the Indian Penal Code 1860 are an attempt towards making a woman feel safer in society. These statues are being enacted to save the fundamental rights of a woman and can't be declared as unconstitutional on any merit.

However, no discrimination should be there while enacting any statue for such sensitive issues, the amendments issued in the criminal amendment act 2013 is a pristine example of the same, it looks nothing but an attempt to calm down public anger as it is ambiguous and make decision making more complex.

The high court, in this case, has clearly pointed out that comparison of Rape with any other crime even with murder is prima facie unrealistic and unjustifiable to the victim, rape is far more graver offence than the offence of murder, in as much as, it takes the victim's right to life under Article 21. The pain and agony suffered by a rape victim is unimaginable and cases like these should dealt with utmost sincerity.

The hon'ble high court has also strengthened the position of section 376 E by clearly mentioning the objective behind its enactment and also has reduced the ambiguity regarding its existence by looking it through the prism of the constitution. The very main objective of the aforesaid statute is to ascertain the mens rea of the repeated offenders and punishing them with as hard as punishment possible within the ambit of the law so that it acts as an example for the whole society.

However, every statue so enacted leave some room for mistakes and ambiguity, the statues so enacted for such grave offences should be less complex and gender-neutral as it leads to faster mechanism to deliver justice.

The Apex Court in many judgments has further observed that 'rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society.

Therefore, it can be concluded such crimes should be dealt with in the ambit of law but also keeping in mind the pain the victim has been through because of the inhuman behavior conducted by rapists. It is the duty of the courts to deliver justice inappropriate time but also to lessen such offenses in the society, the groundwork has to be done at various levels such as introducing such knowledge in the curriculum of the students at an early age. In order to empower women in true spirit, their souls are to be protected first.

Endnote:

1. 39 (1997) 2 SCC 453

Written By Anmol Mishra