The Bombay High Court on Thursday set aside the death penalty awarded to the three convicts in the August 2013 Shakti Mills rape case wherein a then 22-year-old female photojournalist was gang-raped in the compound of the abandoned mill in Mumbai.
The three convicts— Vijay Jadhav, Mohammad Qasim Shaikh and Salim Ansari have been sentenced to life imprisonment for the remainder of their natural life. The court observed that there was no scope of reformation and the three were not are not entitled to parole or furlough considering their "inability to assimilate in society" since they look upon women as "objects".
The court acknowledged that setting aside the death penalty was contrary to popular opinion. "Constitutional court cannot award punishment based on public opinion. While setting aside the death sentence, it may be said that we took counter majority view, but as a constitutional court we must follow the procedure," the High Court said.
"Death puts an end to the concept of repentance…It cannot be said the accused deserved only death penalty. They deserved rigourous imprisonment for life to repent for the offence committed by them, the court said.
The high court's order came on appeals filed by the three convicts who challenged the death penalty awarded to them by the sessions court in 2014.
The case pertains to the August 2013 case where a then 22-year-old photojournalist was gang-raped by four men and a minor while her male colleague was gagged and beaten. The fourth man— Siraj Rehman Khan, was sentenced to life in prison and the minor was sent to a correctional facility after conviction by the Juvenile Justice Board.
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Cannot award capital punishment based on public opinion
The division bench comprising Justices SS Jadhav and PK Chavan observed that the court could not ignore the fact that the incident shocked the conscience of society. The court said that even though "every case of rape is a heinous offence" it could not award capital punishment based on public opinion.
The court quoted Khalil Gibran's poem on Crime and Punishment to underscore their point. "And how shall you punish those whose remorse is already greater than their misdeeds? Is not remorse the justice which is administered by that very law which you would fain serve? Yet you cannot lay remorse upon the innocent nor lift it from the heart of the guilty", the bench said.
"The court cannot ignore the fact that the offence has shocked the conscience of society...Rape is a violation of human rights. But this is a constitutional court...and a death sentence is irrevocable," the court observed.
"Life imprisonment is rule and death penalty is an exception. It is our duty to consider the case dispassionately. We cannot ignore the procedure of law, the bench added.
The court explained that constitutional courts are bound by judicial mandate. "We observe that 376E of IPC is not a substantive offence but is a punishment of offence," it added.
This case was the first time where a court invoked Section 376(e) of the IPC, which was introduced as part of the sweeping amendments made to the IPC in the aftermath of the 2012 Delhi Gang rape case, for conviction.
"The statute does not prescribe mandatory death penalty or that the accused deserved only death penalty and nothing less than that," the court added.
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A recap of the case
A sessions court in April 2014 had awarded the death penalty to the three convicts—
Vijay Jadhav, Mohammad Qasim Shaikh and Salim Ansari, for being repeat offenders under Section 376 (e) of the Indian Penal Code (IPC), 1860. The three convicts became the first case in which a sessions court had invoked the then newly introduced Section 376(e) of the IPC that was brought in via the Criminal (Law) Amendment Act 2013 following outrage in the aftermath of the December 2012 Delhi gangrape case.
On August 22, 2013 four men and a minor apprehended the photojournalist and her male colleague who were at the abandoned mill on an assignment. The photojournalist was gang-raped while her male colleague was gagged and brutally beaten. The incident sent shockwaves across the country having taken place months after the December 2012 Delhi gang-rape case.
The Mumbai Police had arrested the minor within 24 hours of the incident and the rest of the accused were caught within the week.
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