The Evolving Jurisprudence - The Enduring Challenge Of Addressing Gang Rape Within The Legal Framework
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
THE EVOLVING JURISPRUDENCE: THE ENDURING
CHALLENGE OF ADDRESSING GANG RAPE WITHIN THE
LEGAL FRAMEWORK
Aryan Parmar, National Forensic Sciences University, Delhi
ABSTRACT
The offence of Gang Rape which means Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention. It is pertinent to point here that this section 376D, provision of Gang Rape in India was introduced after the tragic 2012 Delhi Gang Rape case, also known as Nirbhaya case1. This incident made it necessary for the government analyse the need of amendment in the provision on Gang Rape. through Criminal Law Amendment Act,2018, which bifurcated punishment on the basis of age of the victim. If gang rape is committed against a girl aged
16 years or below, the maximum punishment is life imprisonment, if
committed against a girl aged 12 years or below, the maximum punishment is the death penalty. This paper focused on finding answer of the question where there is a need of death penalty in the offence of Gang Rape or not. This piece of research by the researcher will discuss the historical evolution of the offence Gang Rape. The paper is of the favour of the point if the newly enacted criminal law Bhartiya Nyaya Sanhita, 2023, which has been enacted after the immense research by the honourable researchers and jurists has not stated death penalty as the punishment then why there is a need of addition of death punishment in the offence of Gang also Rape and the research paper also enshrines the measures through which death penalty can be mandate.
1 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1
INTRODUCTION:
Hon’ble Karnataka High Court in the matter of Yogish vs State of Karnataka2, Criminal Appeal No. 479 of 2019 c/w Criminal Appeal no. 1356 and 22 of 2016 wherein the Law Commission has been requested to review the punishment provided under the law in the provision of Section 376D of Indian Penal Code, 1860,(section 70(1) under Bhartiya Nyaya Sanhita,2023) that is to amend for said section by imposing punishment for death in addition to the existing provision of imprisonment for life and shall be liable to fine. The High Court while delivering the judgment had observed that: “GANG RAPE IS MORE
DANGEROUS/PAINFUL THAN MURDER "
In light of the above, the present Report focuses on the need to review and examination of section 376 D IPC. At the onset it is essential to bring out section 376D of the Indian Penal Code, 1860, which reads as under, “Gang Rape - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention3, 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.”4
HISTORY OF THE SECTION:
1. It is pertinent to point here that this section 376D, provision of Gang Rape in India was introduced after the tragic 2012 Delhi Gang Rape case, also known as Nirbhaya case5. This incident made it necessary for the government analyse the need of amendment in the provision
2 CRL.A 479/2019
3 Section 3(5) of Bhartiya Nyaya Sanhita, 2023.
4 Section 376D of the Indian Penal Code, 1860
5 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1
on Gang Rape. In response to the emerging need of the provision, The Justice Verma Committee was established in December 2012. Headed by former Chief Justice of India J. S. Verma, the committee was assigned and requested to review the existing provisions and recommend for the amendments. 2. The Justice Verma Committee in its reported introduced many new offences, such as Gang Rape one of it. The committee suggested recommendations on their findings and considering the previous Law Commission of India reports and recommendations, that an offender of gang rape should be punished with not less than 20 years of imprisonment, which could extend to life imprisonment. 3. From the recommendation of Justice Verma Committee, the Criminal Law (Amendment) Act, 2018 (no. 13 of 2013), section 376D was enacted in Indian Penal Code, 1860. Which reads as: “Gang rape.
—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. ]” 2. Further, in 2018, through Criminal Law Amendment Act,2018, which bifurcated punishment on the basis of age of the victim. If gang rape is committed against a girl aged 16 years or below, the maximum punishment is life imprisonment, if committed against a girl aged
12 years or below, the maximum punishment is the death penalty.
3. In 2023, legislature enacted the Bhartiya Nyaya Sanhita. 2023, after revamping colonial era legislation Indian Penal Code, 1860. New legislation removed the bifurcation of age. The Parliament in 2023 passed the BNS whereby the IPC was also repealed. Section 70 of the Bhartiya Nyaya Sanhita, 2023, which corresponds to Section 376D of the Indian Penal Code, read as under: “Gang rape- (1) 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 imprisonment for 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 sub-section shall be paid to the victim.
(2) Where a woman under eighteen years of age 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 imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death: 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 sub-section shall be paid to the victim. ”6 A bare perusal of the two sections highlights the following differences: -
1. Enhancement of punishment, If the offence of Gang Rape is committed against a girl who is a minor or aged less than 18 years, such offender shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death. 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 sub-section shall be paid to the victim. 2. In 376DB IPC, the age of the victim is 12 years, and punishment is the death penalty. In 70(2) BNS, the age of the victim is under 18 years, and punishment is the death penalty. Section is included as a sub-section in BNS, sans heading.
6 Section 70 of Bhartiya Nyaya Sanhita, 2023.
Supreme Court Judgments
1. Supreme Court in Purushottam Dashrath Borate and Another V/S State of
Maharashtra7 Where the facts as case states that, “the High Court confirmed the conviction and sentencing of the appellant-accused by the Sessions Court for the offences under Section 302, 376(2)(g),
364 and 404 read with Section 120-B of the Penal Code, 1860. The prosecution alleged that the
accused committed the heinous offence of gang rape and murder of the deceased, who was residing with her brother-in-law and sister in a flat in Pune city. The accused were hired by the company to transport employees from their residence to the workplace and back. The accused allegedly raped and murdered the deceased, stripped her of her possessions and money, and left her body in a field. The Sessions Court found the evidence of the prosecution to be complete and concluded that the accused were guilty beyond any reasonable doubt. The Sessions court also observed that the offences committed were of extreme depravity and brutality, and awarded the death penalty. The High Court confirmed the death sentence”8 and The Supreme Court while delivering judgement, observed that: “26.
We do not intend to saddle the judgment with the settled position of law in respect of the sentencing policy and the principles evolved by this Court for weighing the aggravating and mitigating factors in specific facts of the case. However, it would be apposite to notice the decision of this Court in Bachan Singh [(1980) 2 SCC 684: 1980 SCC (Cri) 580], wherein the constitutional validity of the provisions that authorise the trial court to award death sentence for the offence punishable under Section 302 IPC and the other offences was upheld. However, this Court observed that there can be no straitjacket formula which can be applied in each case and that while considering the sentence to be awarded, the Court must look into the aggravating and mitigating circumstances.
The ratio of the decision in Bachan Singh [(1980) 2 SCC 684: 1980 SCC (Cri) 580] has been followed in Macchi Singh [(1983) 3 SCC 470: 1983 SCC (Cri) 681] wherein this Court held that the manner of commission, motive for commission, antisocial nature of crime, magnitude of crime and personality of victim ought to be kept in mind while awarding an appropriate sentence. It was held that a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be
7 Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652
8 https://www.casemine.com/judgement/in/5790b297e561097e45a4e2f3
accorded full weightage and a balance has to be struck. 27. It is an established position that law regulates social interests and arbitrates conflicting claims and demands. Security of persons is a fundamental function of the State which can be achieved through instrumentality of criminal law. The society today has been infected with a lawlessness that has gravely undermined social order. Protection of society and stamping out criminal proclivity must be the object of law which may be achieved by imposing appropriate sentence. Therefore, in this context, the vital function that this Court is required to discharge is to mould the sentencing system to meet this challenge.
The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. Based on the facts of the case, this Court is required to be stern where it should be and tempered with mercy where warranted. 28. In this context, it would be profitable to notice the manner in which this Court has considered the sentencing policy vis-à-vis certain aggravating and mitigating circumstances. 29. In Ramnaresh v.
State of Chhattisgarh [(2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382] , this Court referred to Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] to cull out certain principles governing aggravating and mitigating circumstances. It would be beneficial to refer to the same hereinbelow: (Ramnaresh case [(2012) 4 SCC 257: (2012) 2 SCC (Cri) 382] , SCC pp. 285-86, para 76) “Aggravating circumstances” (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at
large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused. ” 30. Further, it has been held by this Court that undue sympathy to impose inadequate sentence would do more harm to the justice system by undermining the public confidence in the efficacy of law (see Mahesh v. State of M. P. [(1987) 3 SCC 80 : 1987 SCC (Cri) 379] , Sevaka Perumal v. State of T. N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724] and Mofil Khan v. State of Jharkhand [(2015) 1 SCC 67 : (2015) 1 SCC (Cri) 556] ).
To give the lesser punishment for the accused would be to render the judicial system of the country suspect. If the courts do not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. 31. In B. A. Umesh v. High Court of Karnataka [(2011) 3 SCC 85 : (2011) 1 SCC (Cri) 801], the appellant was accused of a brutal rape and murder of a lady. It was found, by medical evidence, that the deceased therein was a victim of a violent rape prior to death and the death
was caused due to asphyxiation. Further, the medical report found that the body of the deceased has several abrasions and lacerations. This Court, noticing the brutal and violent manner of commission of the offences confirmed the death sentence to the accused therein. It was held that: (SCC p. 108, para 84) “84. As has been indicated by the courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to the society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. ” 32.
In Sevaka Perumal case [(1991) 3 SCC 471: 1991 SCC (Cri) 724] , the counsel for the appellants therein contended that considering the young age of the accused, the same would be a strong mitigating factor in favour of commutation of death sentence. It was contended therein that the accused were the breadwinners of their family which consisted of a young wife, minor child and aged parents. However, this Court, finding no force in the said contention, observed that such compassionate grounds are present in most cases and are not relevant for interference in awarding death sentence. The principle that when the offence is gruesome and was committed in a calculated and diabolical manner, the age of the accused may not be a relevant factor, was further affirmed by a three-Judge Bench of this Court in Mofil Khan case [(2015) 1 SCC 67 : (2015) 1 SCC (Cri) 556].
”9 The Supreme Court in Akshay Kumar Singh V/S State (Nct of Delhi) (2020) 3 Scc 43110 , Where the facts as case are that, The Akshay Kumar Singh case (2020) was a review petition filed in the Supreme Court. Akshay was one of the convicts in the 2012 Nirbhaya gang rape case. After his arrest, the trial court found him guilty and gave him the death sentence. When he appealed, the Delhi High Court agreed with the trial court's decision. He then went to the Supreme Court, which in 2017 also confirmed his death sentence. In 2020, Akshay filed this review petition (like a final appeal) in the Supreme Court. He claimed there were new reasons to reconsider his death sentence and said he hadn't received proper legal help during his earlier trials. Where the Supreme Court observed that: “23. As pointed out in the judgment, there were three dying declarations recorded from the
9 Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652, para 26-32.
10 Akshay Kumar Singh v. State (NCT of Delhi), (2020) 3 SCC 431
prosecutrix:
23.1. In the first dying declaration (Ext. PW-49/A) recorded by Dr Rashmi Ahuja (PW 49) on
16-12-2012 at 11.15 p.m., the prosecutrix has stated that more than two men committed rape on her after which, she does not remember the sexual intercourse; the prosecutrix also stated that she was subjected to unnatural sex and she was bitten over her lips, cheeks and breast.
23.2. In the second dying declaration (Ext. PW-27/A) recorded by PW 27 Usha Chaturvedi,
SDM on 21-12-2012 at 9.00 p.m., the prosecutrix has narrated the entire incident in great detail, specifying the role of each of the accused, rape committed by number of persons, insertion of iron rod in her private parts, description of the bus, robbery committed and throwing of both the victims out of the moving bus in naked condition. Prosecutrix also stated that the accused were calling each other “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”.
23.3. In the third dying declaration (Ext. PW-30/D) recorded on 25-122012 at 1.00 p.m. by PW
30 Pawan Kumar, Metropolitan Magistrate by putting multiple choice questions to the victim
and getting answers by gestures and writing. While giving third dying declaration, prosecutrix revealed the names of the accused by writing in her own handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.
24. This Court considered the three dying declarations in the light of the well settled principles
and found that the multiple dying declarations inspire the confidence of the Court and are credible. The above contentions were earlier raised and were considered by this Court in paras
148 to 164, 186 to 192 and 395 to 417 of the judgment and rejected. While so, the petitioner
cannot raise the same plea.
30. On the question of award of death sentence, the Court has considered the aggravating and
mitigating circumstances. In paras 322 to 368 and 511 to 518 of the judgment, while considering the question of death sentence, opportunity was granted to the petitioner accused and also other accused to file their affidavits as to their family background, criminal antecedents, possibility of reformation and such other relevant factors. The petitioner accused through his counsel, Mr A.P. Singh has filed an affidavit stating his family background and stating that he has no criminal antecedent and that his case is not falling under “the rarest of rare cases” to affirm the death sentence, which contention was considered and rejected. The aggravating and mitigating circumstance and the affidavit filed by the petitioner was considered in detail in para 324. The
contention urged by the counsel for the parties and the learned Amicus Curiae were considered in paras 327 to 368 and 511 to 518 of the judgment and the Court observed that the background and family circumstances cannot be taken as the mitigating circumstances. Considering the manner in which the offence was committed, in the judgment dated 5-5-2017 [Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1: (2017) 2 SCC (Cri) 673], this Court held that the case is falling within “the rarest of rare cases”. We do not find that these findings suffer from any error apparent on the face of the record. The mitigating circumstances elaborated upon by the defence by way of highlighting the comparatively young age of the convicts, their socio-economic background, their unblemished antecedents and their chances of reformation, fade into insignificance.
In light of the aggravating circumstances and considering that the case falls within the category of “rarest of rare cases”, the death penalty is confirmed. ”
2. The Supreme Court in Mukesh And Anr V/S State (Nct Of Delhi) And Others10, where
the facts of the case are that, The Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1] was the main appeal before the Supreme Court where Mukesh and three other convicts of the 2012 Nirbhaya case challenged their death sentences. After the trial court's conviction and death sentence was confirmed by Delhi High Court, they filed these appeals questioning the evidence, dying declaration, and confession statements and the Supreme Court while delivering the judgment observed that: “The question would be whether the present case could be one of the rarest of rare cases warranting death penalty. Before the Court proceed to make a choice whether to award death sentence or life imprisonment, the Court is to draw up a balance sheet of aggravating and mitigating circumstances attending to the commission of the offence and then strike a balance between those aggravating and mitigating circumstances.
Two questions are to be asked and answered: (i) Is there something uncommon about the crimes which regard sentence of imprisonment for life inadequate? (ii) Whether there is no alternative punishment suitable except death sentence? Where a crime is committed with extreme brutality and the collective conscience of the society is shocked, courts must award death penalty, irrespective of their personal opinion as regards
10 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1
desirability of death penalty. By not imposing a death sentence in such cases, the courts may do injustice to the society at large. 512. We are here concerned with the award of an appropriate sentence in case of brutal gang rape and murder of a young lady, involving most gruesome and barbaric act of inserting iron rods in the private parts of the victim. The act was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them. The victim and her friend were picked up from the Munirka Bus-stand with the mala fide intent of ravishing and torturing her.
The accused not only abducted the victim, but gang-raped her, committed unnatural offence by compelling her for oral sex, bit her lips, cheeks, breast and caused horrifying injuries to her private parts by inserting iron rod which ruptured the vaginal rectum, jejunum and rectum. The diabolical manner in which crime was committed leaves one startled as to the pervert mental state of the inflictor. On top of it, after having failed to kill her on the spot, by running the bus over her, the victim was thrown half-naked in the wintery night, with grievous injuries. 513.
If we look at the aggravating circumstances in the present case, following factors would emerge: (i) Diabolic nature of the crime and the manner of committing crime, as reflected in committing gang rape with the victim; forcing her to perform oral sex, injuries on the body of the deceased by way of bite marks; insertion of iron rod in her private parts and causing fatal injuries to her private parts and other internal injuries; pulling out her internal organs which caused sepsis and ultimately led to her death; throwing the victim and the complainant (PW 1) naked in the cold wintery night and trying to run the bus over them. (ii) The brazenness and coldness with which the acts were committed in the evening hours by picking up the deceased and the victim from a public space, reflects the threat to which the society would be posed to, in case the accused are not appropriately punished.
More so, it reflects that there is no scope of reform. (iii) The horrific acts reflecting the inhuman extent to which the accused could go to satisfy their lust, being completely oblivious, not only to the norms of the society, but also to the norms of humanity.
(iv) The acts committed so shook the conscience of the society. 514. As noted earlier, on the aspect of sentencing, seeking reduction of death sentence to life imprisonment, three of the convicts/appellants, namely, A-3 Akshay, A-4 Vinay and A-5 Pawan placed on record, through their individual affidavits dated 23-3-2017, following mitigating circumstances: (a) Family circumstances such as poverty and rural background, (b) Young age, (c) Current family situation including age of parents, ill-health of family members and their responsibilities towards their parents and other family members, (d) Absence of criminal antecedents, (e) Conduct in jail, and (f) Likelihood of reformation. In his affidavit, accused Mukesh reiterated his innocence and only pleaded that he is falsely implicated in the case. 515. In Purushottam Dashrath Borate v. State of Maharashtra [Purushottam Dashrath Borate v.
State of Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri) 326] , this Court held that age of the accused or family background of the accused or lack of criminal antecedents cannot be said to be the mitigating circumstance. It cannot also be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons. 516. Society's reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal-justice system. As held in Om Prakash v. State of Haryana [Om Prakash v.
State of Haryana, (1999) 3 SCC 19 : 1999 SCC (Cri) 334] , the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime.
517. Bearing in mind the above principles governing the sentencing policy, I have considered all the aggravating and mitigating circumstances in the present case. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the crime. Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime. Crimes like the one before us cannot be looked with magnanimity. Factors like young age of the accused and poor background cannot be said to be mitigating circumstances.
Likewise, post-crime remorse and postcrime good conduct of the accused, the statement of the accused as to their background and family circumstances, age, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of “the rarest of rare cases”. The circumstances stated by the accused in their affidavits are too slender to be treated as mitigating circumstances. 518. In the present case, there is not even a hint of hesitation in my mind with respect to the aggravating circumstances outweighing the mitigating circumstances and I do not find any justification to convert the death sentence imposed by the courts below to “life imprisonment for the rest of the life”. The gruesome offences were committed with highest viciousness. Human lust was allowed to take such a demonic form.
The accused may not be hardened criminals; but the cruel manner in which the gang rape was committed in the moving bus; iron rods were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold wintery night of December, shocks the collective conscience of the society. The present case clearly comes within the category of “the rarest of rare cases” where the question of any other punishment is “unquestionably foreclosed”. If at all there is a case warranting award of death sentence, it is the present case. If the dreadfulness displayed by the accused in committing the gang rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the “rarest of rare category”, then one may wonder what else would fall in that category.
On these reasonings recorded by me, I concur with the majority in affirming the death sentence awarded to the accused persons. ”
CONCLUSION
The retention of the death penalty for heinous crimes, such as gang rape, even with the option of life imprisonment, is essential as a deterrent against acts of extreme brutality that shock societal values. Such crimes have a profound impact on victims and the community, and the
threat of capital punishment can prevent potential offenders from committing such horrific acts. While the Bhartiya Nyaya Sanhita (BNS), 2023, mandates the death penalty for gang rape involving victims under 18, the Law Commission’s proposal to remove the age restriction and focus on the severity of the crime offers a more balanced approach. This framework would allow courts to evaluate the crime based on factors like the extent of injuries, whether the victim is left in a vegetative state, and the broader societal impact, rather than solely focusing on the victim’s age. This shift would ensure that justice is served based on the specifics of the crime rather than rigid age criteria. To prevent misuse, strict safeguards are necessary.
These should include mandatory appellate reviews, where higher courts thoroughly examine the decisions, and stringent evidentiary standards to prevent wrongful convictions. Clear judicial guidelines should be established to ensure that decisions are fair, consistent, and free from bias. By focusing on the severity of the crime rather than age, this approach ensures that punishment is proportional to the harm caused. It strikes a balance between deterrence, retribution, and the protection of human rights. Penal laws should be rooted in objective, crime-specific criteria, ensuring fairness while adapting to evolving societal norms. This will ensure that justice is both fair and aligned with contemporary values, protecting individuals and society as a whole.
As the Bhartiya Nyaya Sanhita (BNS), 2023, has recently been enacted with all the new amendments, it seems sufficient to deal with the offence of gang rape. The recent amendment has removed the bifurcation of age (i. e. , 16 years and 12 years) and now states that if the offence is committed against a victim below the age of 18 years, the death penalty can be awarded, which appears to be adequate. Furthermore, as suggested by the Law Commission of India, the age criteria should be removed from the provision. A sub-clause should be added for awarding the death penalty based on the following factors: 1. If the victim enters a vegetative state due to the barbaric nature of the offence. 2. The quantum of injuries on the victim, and the brutality of the act. 3. If there are no mitigating factors in the nature of the offence. 4.
If the offence of gang rape has been committed in such a barbaric manner that it impacts society at large.