Why No Death Penalty For Gang Rape In India?

“Brother, please save me, I don’t want to die. I want to live. Those who have done this to me, I want to see them getting a death sentence.”

These were the most emotional last words of Unnao gang rape victim who was brutally gang raped in March and when police allowed those gang rapists to be released on bail then they decided to burn her while she was on her way to attend the court hearing pertaining to this gang rape case as they were hundred percent convinced that the judiciary of India does not hang gang rapists and it is only once in 15 years that a poor Dhananjoy Chatterjee who could not afford fees to hire lawyers and whose petition was drafted by Tihar jail prisoners is hanged and so the chances of very easily escaping from strict punishment are quite bright! Every Indian will get moved to read what this Unnao rape victim said before dying! What was her fault? That she was a women?

Why are rapists released on bail for some time as we saw in case of Unnao gang rape case? Why no security is provided to the victim who was raped? Why the life and safety of victim is not cared for by police as we saw most unfortunately in Unnao which resulted in accused burning her 90% which led to her death later? Why should the strictest action not be taken against all those police cops who ensured that the accused were out on bail and who ensured that gang rape victim got no security?

Should we be proud of our legal justice system which operates at an excruciatingly glacial pace and makes sure that those who commit rape and gangrape coupled with murdering the rape victim by either setting them ablaze as has nowadays become the latest fashion or in some other manner in some cases? All the Judges of Supreme Court, ex Judges, ex-CJIs, legal giants like K Parasaran, Soli J Sorabjee, Kapil Sibal, Harish Salve, Mukul Rohatgi, etc must ponder over it and think of ways by which the waning public faith in our judicial system is restored! If the public faith is destroyed then people will start taking law in their own hands to deliver “instant justice” which can never be good for our country!

It is most shocking that the incidents of not just rape but even gang rape followed by setting ablaze the victim is increasing very rapidly in our country as we saw most recently in Unnao, Hyderabad and many other cities but still we don’t get to read gang hanging! Are gang rapists immune from death penalty? Why is it that under our penal laws there is no mandatory death penalty for gang rape?

Why is it that under our penal laws there is no mandatory life imprisonment also for gang rape as stipulated in Section 376D of the IPC? Why the punishment for gang rape as stipulated in Section 376D of the IPC is “shall not be less than twenty years but which may extend to life”? Why this “discretion bomb” in form of “may” is inserted in Section 376D dealing with gang rape?

Should this “discretion bomb” not be defused promptly by removing it and providing for “mandatory death penalty” considering the irrefutable fact that gang rape incidents are increasing alarmingly in our country followed by even gang burning of gang rape victims as we saw most recently in Unnao and earlier in Hyderabad with a 26-year-old veterinary doctor? Can gang rape be justified under any circumstances? Why then do we see that there is no mandatory death penalty for such offences?

Why different punishment prescribed for gang rape on woman under 16 years of age as prescribed in Section 376DA and that on woman under 12 years of age as prescribed under Section 376DB of IPC? Why only life imprisonment under Section 376DA and not death? Why option of life and death in Section 376DB of IPC? Why not mandatory death penalty?

Why even for repeated offenders there is no mandatory death penalty and why the option of life term is added simultaneously in Section 376E of IPC?  All these escape routes must be closed now forever so that rapists are never able to take advantage of the loopholes in our legal system anymore now! But are our politicians, lawmakers and Centre ready to do this or will they be happy with just face saving exercise and lip service? Only time will tell!

Why is it that about 15 to 16 years ago a poor rapist named Dhananjoy Chatterjee was hanged for rape-cum-murder of a Class XI girl in 2004 and that too on circumstantial evidence alone but no gang rapists are hanged ever? How many times have gang rapists been hanged in our country? Why are they not hanged?

Why gang rapists who even murder their victim as we saw in Nirbhaya case are not hanged till now? Should we keep feeling proud that just one poor Dhananjoy Chatterjee whose petition was drafted by prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves was hanged about 15 years back in 2004? Should we not feel ashamed that many thousands of rapists cum killers escape death penalty by exploiting the legal loopholes in their favour?

Should we feel proud that since then not a single rapist has been hanged? Should we feel proud that even though thousands and thousands of rape incidents keep happening all across our country but yet we don’t see any hanging since 2004 when Dhananjoy was last hanged? Should our judiciary, lawmakers, Parliament and Centre feel very proud on this?

Why just recently we saw how people threw flowers on those policemen in Hyderabad who killed those 4 gang rapists when they attacked them as is being alleged and people started celebrating and many politicians started hailing it? Why is it that people are losing faith in the ability of our judiciary to deliver justice in time? Is it not a matter of utmost concern for all of us that encounter killings is being glorified as people believe that the legal system has been designed in such a manner that it ensures that rapists and gang rapists are not hanged for many decades?

Why is it that Arvind Kejriwal who is Chief Minister of Delhi while expressing concern over people’s loss of faith in the criminal justice system  openly says that, “People across the country are agitated over reports of horrible rape and murder incidents happening across the country that have come to light of late – whether it is Hyderabad or Unnao [where a rape victim was burnt earlier this week]. That’s a reason why people are expressing happiness and satisfaction over the police encounter in Hyderabad?” Why Kejriwal further says that, “It is also something to be worried about, the way people have lost their faith in the criminal justice system. This demands introspection and all governments must come forward and work together strengthening the criminal justice system and investigating agencies?” We all must seriously introspect on this!

Why is it that even after the killers of Nirbhaya who had been convicted by the Supreme Court and even after five years of death penalty being convicted by the Delhi High Court have not been hanged top death till now? Why their mercy petition keeps hanging? Is this the real beauty of our judicial system for which we should feel proud?

Why even Supreme Court does not say anything on it? Why even in terror cases like the killing of former PM late Rajiv Gandhi, killing of former Punjab Chief Minister Beant Singh, mercy petition keeps pending for decades? Should we be proud of this and justify it in the name of “due process”?

The Vice President M Venkaiah Naidu very rightly said that,  “What happens even after punishment is given to convicts. We all are witness… appeal, mercy (petition)… can anybody think of having mercy on such people? This kind of violation of dignity of women cannot go on unchallenged. What is required is not a new bill; what is required is political will, administrative skill and then change of mindset and then go for the kill of the social evil.” He also rightly said that minors who know how to rape should not be given any benefit and must be punished just like others! Rightly so!

Why should a definite time not be set for completing rape cases? Why should a definite time not be set for deciding rape cases in lower courts, High Court as well as the Supreme Court also? Why should review petition not be abolished or at least time limit set for deciding it?

Why should mercy petition for heinous crimes like gang rapes and terror cases not be abolished or at least a time limit be set up for deciding it? Why Centre repeatedly ignores such demand made by prominent persons in this regard? Whose interest is served in doing so? Should we be proud of it? Why is it that it takes decades or many years to decide a mercy petition? Why can’t it be decided within few days as pointed out by former Attorney General Soli J Sorabjee?

It is good to note that even our President Ram Nath Kovind rightly pointed out that incidents of demonic attacks on women have shaken the conscience of the country. He rightly said that women safety is a very serious issue and a lot of work has been done on this but much remains to be done. He also advocated that those convicted under the POCSO Act should be deprived of their right to mercy petition as they do not need any such right. Here I would beg to differ with the President most humbly and add that there should be no discrimination of POCSO and others and all the rapists and all the terrorists deserve no mercy petition under any circumstances and even if it is still not abolished it must be decided within a short span of time say a few days or weeks and not in many decades which only gives a potential tool to our adversaries to take potshots at the manner in which anyone can get away even after killing the former PM of India as we saw in case of late Rajiv Gandhi where mercy petition was not decided even after decades!

Why can’t strict and speedy justice be provided to people? Why should the 45% of lawmakers who have been elected to Parliament and who are facing themselves serious charges of rape and murder not be debarred permanently from entering politics until their name is cleared of all charges by the top court itself? Why no law has been enacted in this regard?

Why do we expect that such lawmakers who are themselves facing rape charges will support laws that mandates compulsory death penalty for all rape and terror cases? Are we not foolish? What they will favour is that just a single rapist like the poor Dhananjoy Chatterjee is hanged on the basis of circumstantial evidence alone once in 15 years and no rapists or gang rapists are hanged all these years even after they set the victim ablaze!

They will advise us that law will take its own course! They will advise us to be patient and have faith in India’s judicial system! It is high time and now the Supreme Court too must speak out most strongly against all the inadequacies in our criminal justice system due to which people’s faith in it is getting steadily dwindled as is being pointed out repeatedly in different newschannels, different newspapers and different magazines which is certainly not a healthy sign for a democratic country like India! Parliament too must seriously debate on it and should give this most sensitive issue of woman’s safety and of according nothing but death penalty to those perpetrate the most horrifying crime against women  the topmost priority instead of just debating trivial issues like that of onion or tomato or radish! Let’s hope so!

Sanjeev Sirohi

CAPITAL PUNISHMENT

INTRODUCTION

The use of capital punishment has long been a controversial subject. There are many who favour its use, while there are others who strongly oppose it. Capital punishment is the ultimate punishment one can receive from a court of law. This type of punishment has existed for centuries. Historically, governments have sentenced criminals to death for major and minor crimes against government, their leaders and members of their society. Often, capital punishment was administered in a harsh manner, such as public hangings.

WHAT IS SEXUAL OFFENCES?

Any crime that involves sexual intercourse or any other sexual Act. The main crimes in this category are rape, assault, sexual assault. It is a specific criminal     offence under the sexual offences act, 2003.

 GANG RAPE?

Where a women is raped by one or more persons constituting a group or acting in furtherance of a common intention . Section 376 D makes punishment very severe in case of gang rape that may be imprisonment till the natural life of the person depending on the gravity of the offence . This section says that where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention , each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life , and with fine : provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim : provided further that any fine imposed under this section shall be paid to the victim .

 

WHAT IS CAPITAL PUNISHMENT?

Capital punishment is the legal killing of a person who has committed a serious crime. capital punishment is also known as the death penalty, death imposed as a punishment for crime . It may also be defined as punishment for committing murder, treason and other capital crimes. A capital crime is a crime where the death penalty can be used against the person convicted of committing that crime.

CASE

State Through Reference vs. Ram Singh & Ors.

Date of judgement – March 13, 2014

  FACTS

1. The incident is of dated 16-12-2012. As per allegations, the complainant and his friend, the prosecutrix, had gone to PVR, Saket, New Delhi, for watching a movie. They came out of the said place at about 8:30 PM and reached Munirka Bus Stand at 9 PM in an auto, where they were lured to board a white coloured chartered bus by its conductor. Both of them boarded the bus. They saw four boys in the driver’s cabin and two boys sitting behind the driver’s cabin i.e. one on the left and another on the right side. The complainant and the prosecutrix both sat on the left side – second seat in the bus and paid fare of Rs.20/-. As the bus reached near Airport Flyover, three boys came out of the driver’s cabin. Two of them started abusing the complainant, asking him as to where he was taking the prosecutrix in the night. One of them hit the complainant. As the complainant resisted, two other boys joined the assailant in beating the complainant with iron rods lying in the bus. As the prosecutrix came forward to save the complainant, two of the assailants pushed her to the back seat. While the complainant was caught and being beaten ; the other assailants took their turn to have sexual intercourse with the prosecutrix. They brutally ravished her by raping her ; doing unnatural sex and also damaged her internal organs and genitals by inserting iron rods into it and causing injuries dangerous to her life. The assailants even robbed the complainant of his mobile phone, his purse containing Rs.1000/- ; his bank cards ; made him naked by taking away his clothes and even his black hush puppy shoes. Similarly the mobile phone of the prosecutrix, her ATM card, was all robbed. The assailants then tried to throw both the complainant and the prosecutrix out of the moving bus from its rear door but since it could not open, so they brought them at the front door and threw them out of the moving bus at National Highway No. 8 near Mahipal Pur flyover by the side of the road. They both were noticed by the passer bys. Police was informed and they were brought to Safdarjung Hospital, New Delhi for their medical examination. The statement of the complainant was recorded.

2. The crime team lifted the exhibits from the spot near Mahipalpur flyover, where the complainant and prosecutrix were found lying naked.

3. The description of the bus was given by the complainant, as having a separate cabin for its driver ; red colour seat covers, yellow curtains on its windows and it was a 3 X 2 sitter. The CCTV camera footage, installed at Hotel Delhi Airport, Mahipal Pur, New Delhi, just opposite to this spot, near the time of incident, was obtained and it showed the bus of similar description passing twice in front of said hotel, firstly at 9:34 PM and secondly at 9:53 PM i.e. close to the time when one Raj Kumar first noticed the victims, lying naked by the side of Mahipal Pur Flyover. The complainant identified the bus in the footage.

4. The search operations were conducted and bus bearing no. DL-1PC-0149 was found parked near Ravi Dass Camp, R.K.Puram, New Delhi. Accused Ram Singh since deceased, was found sitting in it and he was interrogated and arrested. He led to recovery of his bloodstained clothes, iron rods and the documents concerning the bus and also disclosed that he threw the SIM card of complainant’s mobile in the morning of 17/12/2012 in the area of Noida, which was later seized from one Jishan, who found it in Sector-37, Noida, UP. The bus was inspected by CFSL Team and exhibits were seized. Accused Ram Singh, since deceased, refused to participate in TIP. He led to the arrest of other accused person namely accused Vinay Sharma and accused Pawan @ Kalu.

5. Accused Vinay Sharma got recovered his bloodstained clothes, hush puppy leather shoes of the complainant, the mobile phone make Nokia Model 3110 of Black grey colour belonging to the prosecutrix. Similarly accused Pawan Kumar got recovered from his jhuggi his bloodstained clothes, shoes and also a wrist watch make Sonata and Rs. 1000/- robbed from the complainant. These accused refused to participate in the TIP. On 18-12-2012, accused Mukesh was apprehended from his native village Karoli , Rajasthan and a Samsung Galaxy Trend DUOS Blue Black mobile belonging to the complainant was recovered from him. He was brought to Delhi and was arrested after interrogation. Later on 23.12.12, he got prepared the route chart of the route where he drove the bus at the time of incident. Besides that, he got recovered his bloodstained clothes from the garage of his brother at Anupam Apartment, Saidulajab, Saket, New Delhi. He was identified by the complainant in the Test Identification Parade . On 21.12.2012, the juvenile was apprehended from ISBT and an ATM debit card of the prosecutrix and a mobile phone, besides his SIM were seized. On 21.11.2012, accused Akshay was also arrested from Aurangabad, Bihar. He led to his brother’s house in village, Naharpur, Gurgaon, Haryana and got recovered his bloodstained clothes. He was identified by the complainant in the TIP proceedings. He also got recovered a ring belonging to the complainant, two metro cards and a Nokia phone with SIM of Vodafone company.

6. The mobile phones of the accused person, as also of the complainant and the prosecutrix were all seized and call details records with requisite certificates u/s 65-B of Indian Evidence Act were obtained by the police.

7. The prosecutrix on 16.12.12 gave a brief history of the incident to the doctor in her MLC. On 21.12.12, on being declared fit, she gave her statement under section 164 CrPC to the SDM. Even on 25.12.12, her statement under section 164 CrPC was recorded by Shri Pawan Kumar, Ld. MM by putting her multiple choice questions and through gestures. On 27.12.12, she was shifted to Mt. Elizabeth Hospital, Singapore for her further treatment. Unfortunately, on 29.12.12, she expired due to sepsis with multiple organ failure with multiple injuries.

8. Hence sections 307 , 201 , 396 ,302  of IPC were all added. The MLCs were collected and medical opinion were obtained from the doctor as also their opinion on the weapons used. The DNA profiles were made of all the accused, of the victims and its reports were obtained and accordingly, on 03.01.2013 charge sheet was filed by the prosecution under section 365,376(2)(g), 377, 307, 395,397, 302, 396, 412, 201, 120,34 IPC.

 view point

Age cannot be a yardstick to justify crime . A person can’t be stated as juvenile on the basis of his age rather mental maturity should be the point of reference . India presently ranks 4th in the world’s list of most dangerous place for women and Delhi first in India . It shows where our present judicial system stands And a vital question i.e. Are people at all scared of police or do they respect our law of land at all .When the offending party first Dacoited a passenger and forced him to step down the buses . He reported the whole fact to the traffic police with reference to bus number but no action was taken by the police . the Cost of carelessness of the police was paid by this poor brave girl . She wanted the court to give death sentence but the quality of justice she got was 3 yrs of imprisonment of the curliest just because of his age. If the judicial system goes on this manner very soon a time will come when people will have zero faith on the system. If all of them did the same mistake with a common intention then why will one of them get less punishment while others will have to suffer more . as per the proverb ” Ignorance of fact is tolerable but ignorance of law is not tolerable” . If a person is able to go beyond his age and commit a crime then in the same manner he should be ready to suffer the punishment .

As per section crpc section 164 – confessions and statement were recorded of the victim by multiple choice questions . As per IPC Section 307 – Attempt to murder , Section 201 – Causing disappearance and giving false information to screen offender . Section 396 – Dacoity with murder , Section 302 – punishment for murder , Section 365 – Kidnapping or abducting with intent secretly and wrongfully to confine persons , Section 377- Unnatural offences , Section 395 – Punishment for Dacoity , Section 412 – Dishonestly receiving stolen in the commission of a Dacoity , Section 34 – Acts done by several persons in furtherance of common intention .

SUMMARY

The victims, a 23-year-old female physiotherapy intern and her male friend, were on their way home after watching a film in Saket in South Delhi. They boarded a chartered bus at Munirka for Dwarka that was being driven by joy riders at about 9:30 pm. The minor among the accused had called for passengers telling them that it was going towards their destination. The woman’s friend became suspicious when the bus deviated from its normal route and its doors were shut. When he objected, the group of six men already on board taunted the couple, asking what they were doing alone at such a late hour.

When the victim’s friend tried to intervene, he was beaten, gagged and knocked unconscious with an iron rod. The men dragged the woman to the rear of the bus, beating her with the rod and raping her while the bus driver continued to drive. Medical reports later suggested that the woman suffered serious injuries to her abdomen, intestines and genitals due to the assault, and doctors say that the damage indicates that a blunt object (suspected to be the iron rod) may have been used for penetration. That rod was later described by police as being a rusted, L-shaped implement of the type used with a wheel jack. After the beatings and rape ended, the gang threw the two from the moving bus. Then the accused allegedly tried to drive the bus over the woman but she was pulled aside in the nick of time by her male friend. One of the perpetrators later cleaned the vehicle. Police impounded it the next day. As she was pinned down and raped, the young woman put up a fight but was hopelessly outnumbered. She bit three of the men assaulting her. The bite marks on the three accused men are likely to be part of the Delhi Police’s evidence in their charge sheet.
The woman and her companion were found by a passerby on the road, partially clothed and unconscious, around 11 pm. The passerby phoned the Delhi Police, who took the couple to a hospital, where the female victim was given emergency treatment and placed on mechanical ventilation. The victim was found with only 5% of her intestines left inside of her. A doctor at the hospital later said that the “rod was inserted into her and it was pulled out with so much force that the act brought out her intestines also. That is probably the only thing that explains such severe damage to her intestines.”

CONCLUSION

Little changes came after this miserable event in the history of such event. Government amended many law. Many committees were formed which supported women protection in public place , offices , transportation etc.

Safety measures in public transport for women

  1. ·         Some measures taken by the Government for the safety of women in Delhi are as follow:
  2. ·         Installation of GPS devices on all public buses
  3. ·         Verification of the crew of all public transport vehicles, including owners of chartered buses
  4. ·         Appointment of lady police officers
  5. ·         Increasing the number of PCR vans
  6. ·         Recruiting more people for the proper running of transport department
  7. ·         Introduction of Home Guards in the night buses of DTC
  8. ·         Police verification of school bus staff
  9. ·         CCTV cameras at various places in Delhi. At present, CCTV cameras are operational at 34 markets and four border check posts in Delhi.

·         The Government announced in 2013 that verification needs to be done by the Delhi police on all passenger vehicle drivers and after that the transport department would issue public service vehicle (PSV) badge to them.

·         The Criminal Law (Amendment) Ordinance, 2013 was promulgated because more than 80,000 suggestions from the public were considered and the committee submitted a report in which it was mentioned that the root causes behind crimes against women were the failures on the part of the Government and police. Certain stringent changes in laws have been made and six new fast-track courts were set up only for rape cases. The objective was to reduce the number of rapes and sexual harassment cases. The amended laws have made it clear that there is now harsh sentence for rape convicts which include death as well as life term penalty, stringent punishment for other offences against women like eve teasing, acid attacks, stalking and voyeurism. Various sections of the Indian penal code , the Indian Evidence Act, the Code of Criminal Procedure, and the Protection of Children from Sexual Offences Act have also been amended by the Government .According to law, a rape convict can be sentenced to imprisonment for not less than 20 years, and can extend till his natural death. Rape convicts who are repeat offenders can be sentenced to death. Stalking and voyeurism, for the first time, have been considered as non-bailable offences, while an acid attack convict can be sentenced to a 10-year imprisonment.