MUKESH & ANR VS STATE FOR NCT OF DELHI & ORS
FACTS OF THE CASE:
Nirbhaya, a 23-year-old paramedical student was brutally assaulted and gang-raped in a moving bus in South Delhi. On the night of December 12, 2016, the prosecutrix and her friend Awninder Pratab Pandey, were returning to their home after watching a movie. They boarded an off-duty contract bus from Munirka Bus Stand, in which there were already 6 men including the bus driver. The bus had yellow and green stripes and the word YADAV was written on it. The bus was supposed to take the Dwarka-Palam road but it started to move in an off-route direction. When the driver of the bus took the wrong route, the friend of the victim started objecting, the persons in the bus locked the door and picked up a fight with him, while some of them started molesting the girl. In the scuffle, the victim’s friend was knocked out with an iron rod, and then later on the men dragged the victim to the back of the bus and gang-raped her, for over an hour. It is stated that the prosecutrix was raped by these men one after the other, was subjected to unnatural sex and an iron rod was inserted into her body through the rectal and vaginal region because of which she suffered from internal injuries, including ripping of intestines. Both the prosecutrix and her friend were later thrown out of the moving bus to the side of the road, near the Mahipalpur flyover. A passer-by informed the Delhi police. Immediately after the police arrived, the victim was taken to the Safdurjung Hospital where she was provided medical attention. The victim ultimately couldn’t resist her injuries and died at Mt. Elizabeth Hospital, Singapore, where she was shifted for further treatment. The 6 attackers were Ram Singh, Mukesh Singh, Akshay Kumar Singh @ Thakur, Pawan Gupta @ Kaalu, Vinay Sharma, and the juvenile Raju. All 6 attackers were convicted by the court. The convict Akshay Kumar Singh @ Thakur, convict Mukesh Singh, convicts Vinay Sharma, and convict Pawan Gupta @
Whether the four accused convicted under 302 of the Indian Penal Code, 1860 have to be hanged till death or the sentence may be remitted to life imprisonment?
The main law applied are Section 302 read with 375 of the Indian Penal Code, 1860.
Section 302 of the Indian Penal Code, 1860
302. Punishment for murder. —Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Section 375 of the Indian Penal Code, 1860
375. Rape. —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation. —Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
ANALYSIS OF THE CASE
The main arguments of the convicts were that the statements made by are impeachable as it was getting improved day by day, all the accused were not present in the bus at that point of time, the personal search, recoveries, and the disclosure leading to recovery are in not in accordance with law, the scientific evidence does not have credibility and that the convicts have no previous criminal history, the infirmities pointed out in the multiple dying declarations, etc. It was also argued on behalf of the convicts that the reform, rehabilitation and absence of any continuing threat to the general public at large are factors to be taken into consideration for the purpose of commutation of death penalty to life imprisonment. Even the amicus curie argued about the absence of premeditation to commit a crime of the present nature, should not invite the harshest punishment. All these arguments were negated by the Honourable Supreme Court citing various judicial pronouncements. The Honourable Supreme Court opined that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances, as to whether the death sentence should be awarded, would depend upon the factual scenario of the case in hand and thus confirmed the death sentence. It is worthwhile to note that the aforesaid view was part of the majority judgement, whereas the dissenting Judge concurred with the views of the majority in confirming the death sentence, but has expressed her anguish in questioning the evidence especially the inconsistencies in the multiple dying declaration wherein the court should also consider the emotional stress the victim had to undergo, especially when she is in trauma because of the physical abuse to her body.