INTRODUCTION
“My daughter has got justice. Execution of the four convicts will empower the women of the country”
Jyoti Singh’s Mother
One of the most notorious cases called Delhi Gang rape of 2012 of the girl named Jyoti Singh has been culminated into the hanging of 4 out of 6 convicts. One being the minor has been released after spending 3 years in rehabilitation centre and other committed suicide while in prison. Delhi gang rape incident led to the change in criminal law in 2013 incorporating various provisions for the safety of woman. Convincingly this case shakes the collective conscience of the society and convicts deserve no punishment other than death.
Though this is not the only incident where such brutality is shown, this case grabs the most media attention and coverage in near past. I am convinced that the incident was brutal, heinous, gruesome, barbaric, falls in the rarest of rarest category and demands no punishment other than death. I am trying to mention here that, there are so many other cases where brutality, heinousness and gruesomeness are almost similar or even more. However, surprisingly in these cases collective conscience of the society is not shaken and convict does not deserve death penalty as per the Honourable Supreme Court of India.
To substantiate whatever is stated, it is utmost important to discuss facts and judgements in different cases and comparing it with Nirbhaya’s case facts and judgement. Comparing facts became important to understand the magnitude, brutality and heinousness of the offence.
Nirbhaya’s Judgement (Mukesh and another v State of NCT of Delhi[1])
The cold evening of Delhi on 16th December, 2012 a twenty-three year old lady, a para- medical student, who had gone with her male friend to watch a film, was gang raped very brutally by 6 men. She faces brutal assault and her private parts were ruptured. Convicts inserted iron rod in the private parts of the body of the victim damaging her private parts. After committing rape, convicts thrown the lady and her friend out of the bus completely naked, thinking they are dead. All this causes the young lady to suffer immense trauma. With all the best medical facilities available the life of the victim cannot be saved. The death took place at a hospital in Singapore where she had been taken to with the hope that her life could be saved. In the meanwhile her dying declaration are recorded which helps the honorable court in reaching the conclusion of the truth and sentencing the convicts. Post-mortem report of the victim was prepared. Contents of the post-mortem report are stated below:
Uterus, Tubes and Ovaries Uterus, tubes and ovaries were present in their normal anatomical positions. The uterus measured 8cm x 5cm x 3.5cm.
Thin fibrinopurulent adhesions were present on the serosal surfaces of the uterus and the adnexae.
Cervix appeared normal and the os was closed. There were no cervical erosions and no haemorrhages on the intra-vaginal aspect of the cervix.
Cut sections showed thin endometrium and normal myometrium.
Tubes were normal.
Both ovaries were normal in size.
Cut sections of both ovaries showed corpus lutea, the largest of which was present in the right ovary.
In brief the post-mortem report suggested that the uterus was not damaged meaning thereby that the iron rod was not inserted. But the honourable Supreme Court summarily rejects this argument and observed that iron rod can be inserted through anus as well.
After the thorough arguments in favour and against the convicts, the honourable court rightly punished the convicts to death. Later, all the review petition, mercy petition and curative petition were rejected and ultimately the convicts were hanged, resting the holy soul of the victim. Supreme Court in this case rightly observed that collective conscience of the society can only be satisfied when these criminals were hanged till death.
DIFFERENT CASES
Raju v State of Haryana[2]
An 11 year old girl went missing from her home. Next day she was found dead near the bushes. On enquiry it has been established that she has been subjected to rape by the convict. On further enquiry it has been found that rape and murder of the victim has been committed by Subhash Sharma. Convict confessed that after raping the minor, he caused injury to the victim with brick on her head and mouth. The heinousness and brutality of the crime resulted in death of the victim. As per the post-mortem report, cause of death was shock and haemorrhage as a result of injuries which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature.
Supreme Court commuted the death sentence to life imprisonment.
Bantu @ Naresh Giri v. State of Madhya Pradesh[3]
On the pretext of watching a movie, convict took the 6 year old girl. Convict very brutally raped and murdered the minor and then throw the body of the deceased near the bushes across the railway line. It was found that underwear of the deceased was lying near the dead body and blood stains and tooth mark were also there on her cheek.
Post-mortem report concluded that various injuries were inflicted by the convict while murdering the victim. Ultimately death was committed by pressing her nose and mouth and obstructing breath of the deceased.
Supreme Court finds this is not the rarest of rare cases and deserves lesser punishment than death.
Surendrapal Shivbalakpal v. State of Gujarat[4]
A minor girl was raped and murdered very brutality by a 36 year old man, Surendra Pal Shivbalakpal. Man asked for sexual favors from girl’s mother. When mother refused, convict brutally and very heinously committed rape and murder of her girl child. Crime was so heinous and barbaric that the hymen of the victim was completely ruptured. Private parts of the victim were also damaged. After satisfying his lust and murdering her, convict throws the girl in a pond like a playing toy that is of no use now. Her post-mortem report revealed that:
· Serious injuries on the body of the deceased.
· Clothes were stained with blood and some mud particles.
· Private parts of the deceased were lacerated.
· Hymen was completely ruptured.
· Victim died due to Asphyxia.
Surprisingly, Supreme Court held that this case is not the rarest of rare cases and convict deserve lesser punishment than death.
Bishnu Prasad Sinha and Anr. v. State of Assam[5]
Victim in this case was a girl aged 7-8 years staying with her family in a hotel. Convict in this case was a chokidar of the hotel. Convict committed brutal rape on the victim and then chopped off her head and throw that in the septic tank. This case is so brutal that even narrating the story will shake the conscience of the right minded individual. An inquest of the dead body was done which confirmed that the rape has been committed by the convict several times before chopping the deceased head.
Supreme Court held that this case is not enough to shake the collective conscience of the society and commuted death sentence to life imprisonment.
Rameshbhai Chandubhai Rathod v. State of Gujarat[6]
Victim in this case is a 10 year old girl, VI standard student. Victim was brutally raped and murdered by the watchmen, employed in the same apartment where deceased was lived. From the place of the incident, a broken bottle containing Castor oil and a knife were recovered indicating that the minor girl was inhumanly stabbed by the convict after satisfying his lust. Post-mortem report of the victim conformed that the victim was raped and murdered inhumanly.
Surprisingly this case is also not the rarest of rare cases as per the Supreme Court and convict deserves lesser punishment than death.
Amit v. State of Uttar Pradesh[7]
Victim in this case is a 3 year old girl. Small child of 3 years was inhumanly raped and murdered by Amit, a 20 year old man. Convict took away the deceased on the pretext of giving biscuits but the deceased never returned. After committing rape and murder, convict kept the dead body in a plastic bag in the outskirts of the village. It is inhuman even to imagine that a minor girl who might not be able even walk had been subjected to such cruelty. Post-mortem report confirmed that the rape had been committed which brutally damages all her private parts. Post-mortem report also find that there were swelling marks on her head and left side of the face which established that she has been hit on her head and left side of the face.
Collective conscience of the society is not shaken as per the Supreme Court even in this case. Supreme Court held that the convict deserve lesser punishment.
Shankar Kisanrao Khade vs State Of Maharashtra[8]
An 11 year old girl had been kidnapped, raped and then murdered by the convict. It had been revealed that minor girl had been raped several times. Post-mortem report revealed several major injuries were inflicted on the deceased before murdering her.
Supreme Court commuted the death sentence to life imprisonment.
Rajendra Pralhadrao Wasnik v. State of Maharashtra[9]
On the pretext of giving biscuit, convict take the minor girl away from her home and raped her several times. After raping and satisfying his unnatural lust, convict murdered the victim. Post-mortem report of the deceased is itself sufficient to shake the conscience of any right minded individual. Post-mortem report revealed:
External Vaginal Swelling present Vaginal wall lacerated, wound extending from labia mejora to inside vaginal canal in lower 1/3rd on both side 1=" x <" x muscle deep Stains of semen present on inner side of thigh.
Hymen absent, one finger easily pass.
Swelling present on anal region.
Multiple abrasions with Contusions present on body on face, chest back & both shoulders and knees interiorly.
Bite mark on chest (L) side around Nipple elliptical with diameters 1=" x 1<".
Right Lung collapsed, 150 gm, Congested on section collapsed.
Left Lung Collapsed, 100 gm, Congested on section collapsed.
Large vessels - contained blood.
Supreme Court commuted the death sentence of the convict to life imprisonment in a review petition.
A minor girl of 7-8 years had been kidnapped by a mason (convict). After kidnapping, convict committed rape on the victim several times and then after satisfying his unnatural lust killed the victim. Deceased body had been recovered after several days when a confession had been made by the convict. Post-mortem report revealed various injuries on the face, nails and body of the child.
Supreme Court commuted the death sentence to life imprisonment in the review petition
Ravi vs The State Of Maharashtra[11]
A minor girl of 7-8 years had been kidnapped by a mason (convict). After kidnapping, convict committed rape on the victim several times and then after satisfying his unnatural lust killed the victim. Deceased body had been recovered after several days when a confession had been made by the convict. Post-mortem report revealed various injuries on the face, nails and body of the child.
Supreme Court commuted the death sentence to life imprisonment in the review petition
List of the cases which is mentioned in this Article is not exhaustive and there are many other cases where the facts are similar but the death sentence is commuted by the Supreme Court. While commuting the death sentence the main argument given by the Supreme Court is that the mitigating circumstances outweigh the aggravating circumstances. Mitigating circumstances like young age of the accused, possibility of reformation, circumstantial evidence, magnitude of the crime etc. It can be most convincingly argued that apart from magnitude of the crime; all other mitigating circumstances are available in Nirbhaya’s case.
· Young age of the convicts contended by the lawyer – Rejected by the Court.[12]
· Possibility of reformation contended by the lawyer – Rejected by the Court.[13]
· Circumstantial evidence contended by the lawyer – Rejected by the Court.[14]
· Lower background contended by the lawyer – Rejected by the Court.[15]
FUNDAMENTALS OF ARTICLE 14 – NON-ARBITRARINESS
Article 14 of the Indian Constitution provides for right to equality. It says:
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[16]”
It is not in dispute that non-arbitrariness is the basis on which Article 14 of the Indian Constitution stands. In different cases from EP Royappa[17] to Rajbala v State of Haryana[18], Supreme Court reiterated that Non-arbitrariness is the basic feature of Article 14 of the Indian Constitution. If any law is arbitrary it violates Article 14 and consequently it is unconstitutional. However, it cannot be denied that Judiciary is not a State while deciding any matter in the Court of Law and for this reason Article 32 cannot be invoked against judicial decisions.
The point is Article 14 is available against all individuals and it does not matter whether that person is an accused, a criminal, a convict, a citizen or a non-citizen. Convicts of Nirbhaya’s rape and murder deserve no punishment other than death but what about the other similar matters. In this situation, I very convincingly ask this question to myself and to all others:
· Whether Article 14 of the Indian Constitution, one of the most cherish rights available at the whims and fancies of the Judiciary and depends on the individual perception of Judges?
· Whether the offenders in the cases of Rape and murder, where the facts are similar as to Nirbhaya’s matter, does not deserve death sentence?
· Whether the victim’s right to get justice is only restricted to Nirbhaya’s matter?
· Whether the collective conscience which is shaken in Nirbhaya’s matter is an actual collective conscience or manufactured collective conscience?
· Whether a proper sentencing guideline is a need of the hour in these kinds of matter?
As far as the Arbitrariness of the sentence is concerned, Supreme Court itself accepted later that some cases where death sentence has been awarded have been decided per incuriam. One such important case which is important to mention is Santosh Kumar v State[19] 2009.
In this case Supreme Court accepted that they followed a per incuriam case (Revji v State[20]). Supreme Court accepted that on the basis of this per incuriam judgement, they have given death penalty wrongly at least in 6 different cases. Supreme Court observes:
“We are not oblivious that this case has been followed in at least 6 decisions of this court in which death punishment has been awarded in last 9 years, but, in our opinion, it was rendered per incuriam.[21]”
It is impossible even to imagine the plight of those convicts on whom Supreme Court wrongly awarded death sentence and later accepted it.
As far as the applicability of Article 14 on these matters is concerned, in my opinion Supreme Court must look from Article 14 perspective while dealing with these kinds of matter. If not the legislator, the Supreme Court itself tries to drive some mechanism where individual whims and fancies of the Judge is not the basis of awarding the cruelest sentence.
While awarding death sentence in Nirbhaya’s matter, Supreme Court observed that “Collective conscience of the society is shaken so much that convicts deserve no punishment other than death”. In my opinion all those matters which I mentioned above and other similar kinds of matter, Collective conscience of the society must be shaken. If the collective conscience of the society is not shaken in all these matters, it must not be the actual collective conscience but a manufactured one.
However, whatever is gone is gone. Nobody can change the past. What can be change is future. So, there are many other matters pending in the Supreme Court and many other victims like Jyoti Singh. They demands justice and wants there convicts to be hanged like Nirbhaya’s convict.
CONCLUSION
“My daughter has got justice”
Jyoti Singh’s Mother
I remember these sincere words from Jyoti Singh’s mother when Nirbhaya’s convict got hanged. Everyone deserves justice, not only Nirbhaya. It is high time now. Favouring death penalty or its abolition is not even a question here. The only concern is to guard against arbitrariness. To reiterate, Article 14 of the Indian Constitution is available both to the victim and to the convict. Only way through which Article 14 can be protected is certainty. Either by abolishing the death penalty completely or by introducing some sentencing guidelines with regard to death penalty. Some certainty in the law must be introduced
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[1] Mukesh and another v State of NCT of Delhi (2017) 6 SCC 1
[2] Raju v. State of Haryana., AIR 2001 SC 2043
[3] Bantu @ Naresh Giri v. State of Madhya Pradesh., AIR 2002 SC 70
[4] Surendrapal Shivbalakpal v. State of Gujarat., 2004 Supp(4) SCR 464
[5] Bishnu Prasad Sinha v. State of Assam., (2007) 11 SCC 467
[6]Rameshbhai Chandubhai Rathod v. State of Gujarat AIR 2011 SC 803
[7] Amit v. State of Uttar Pradesh., (2012) 4 SCC 107
[8] Shankar Kisanrao Khade vs State Of Maharashtra (2013) 5 SCC 546
[9] Rajendra Pralhadrao Wasnik v. State of Maharashtra AIR 2019 SC 1
[10] Md. Mannan @ Abdul Mannan vs State Of Bihar AIR2019SC2934
[11] Ravi vs The State Of Maharashtra (2019) 9 SCC 622
[12] Mukesh and another v State of NCT of Delhi; para 145; (2017) 6 SCC 1
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Article 14; Constitution of India, 1950
[17] E.P Royappa v. State of Tamil Nadu; 1974 AIR 555
[18] Rajbala v State of Haryana; (2016) 2 SCC 445
[19] Santosh Kumar Satish Bhusan Bariyar v. State of Maharashtra, (2009) 6 SCC 498
[20] Ravji alias Ram Chandra v. State of Rajasthan, [(1996) 2 SCC 175]
[21] Supra note. 19
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