Bombay HC commutes death penalty of three convicts in 2013 Shakti Mills gang rape of a photo-journalist

What bigger proof is needed to prove that life imprisonment is worse than death penalty than this that none other than the Bombay High Court itself in a latest, learned, laudable and landmark judgment titled The State of Maharashtra (through DCB, CID, Unit-III, Mumbai) v/s Vijay Mohan Jadhav @ Nanu and 3 others in Confirmation Case No. 2 of 2014 that was reserved on October 14 and then finally pronounced on November 25, 2021 commuted the death penalty awarded to three men who gangraped a photo journalist in Mumbai inside Mumbai’s defunct Shakti Mills compound on August 22, 2013 to life sentence, saying the convicts deserved to repent their offence and death put an end to the process of repentance, suffering and mental agony. The Division Bench comprising of Justice Sadhana Jadhav and Justice Prithviraj Chavan minced just no words to hold unambiguously that, “They deserve imprisonment for life i.e. for the reminder of their material life…Every day the rising sun would remind them of the barbaric acts committed by them and the night would lay them with a heavy heart filled with guilt and remorse.” The Bench then also added that, “They did not deserve to assimilate with the society as it would be difficult to survive in a society of such men who looks upon women with derision, depravity, contempt and objects of desire.” Very rightly so!
To start with, this brief, brilliant, bold and balanced judgment authored by Justice Smt Sadhana S Jadhav for herself and Justice Prithviraj K Chavan sets the ball rolling by first and foremost putting forth in para 1 that, “The world has never yet seen a truly great and virtuous nation because in the degradation of woman the very fountains of life are poisoned at their source.” Lucretia Mott.
Women are the backbone of every nation and therefore, they deserve their due respect and honour. Honour and Respect for women are the marks of a civilized Society. The Legislature has introduced several laws in order to ensure safety and security to women in society. After the brutal gang rape coupled with murder of a young girl on 16/12/2012 in Delhi, the Parliament by notification dated 23/12/2012 constituted a committee headed by Former Justice J.S. Verma, Justice Leila Seth and former Solicitor General of India Gopal Subramanium. The Committee so constituted was set up with the objective of recommending steps to be taken for the protection of honour and dignity of women, to deal with crimes against women, to recommend penalties which would act as a real deterrent to potential offenders of crimes against women and for providing speedy justice. The Committee after taking into consideration the opinions of all the stakeholders submitted its report and recommendations to the Government on 23/1/2013. The Parliamentary Standing Committee of Home Affairs, Government of India, after considering the report submitted by Justice Verma Committee, reports of Ministry of Home Affairs, 172nd Report on Review of Rape Laws of Law Commission of India, the Criminal Law (Amendment) Bill, 2012, the Criminal Law (Amendment) Ordinance, 2013, opinions of all concerned women organisations, NGOs, suggestions of State/UT Governments and Members of Parliament prepared a Report and expressed the necessity to give effect to the revised laws as expeditiously as possible vide their report dated 26th February, 2013. The report was tabled before the Parliament on 1st March, 2013. The Government drafted the Criminal Law(Amendment) Bill, 2013, by which –
(i) definition of rape was broadened.
(ii) The ambit of aggravated rape was also broadened and the punishment thereof was enhanced.
(iii) Punishment was prescribed for enhancing the sentence to death penalty, for an offence where in the course of commission of an offence of rape, the offender inflicts any injury, which causes the death of the victim or causes the victim to be in a persistent vegetative state.
(iv) To punish the repeat offenders of rape with imprisonment for life, which shall mean the remainder of the person’s natural life, or with death.
(v) Prescribe punishment for the offence of gang rape with rigorous imprisonment for a minimum of twenty years extendable to life (which shall mean the remainder of that person’s natural life) and fine; to be paid to the victim to meet the medical expenses.”
While elaborating on the facts of the case, the Bench then recalls in para 6 that, “The present case is a sad saga of an young photo journalist. The survivor Miss X(P.W.6) was working with Time Out Magazine of Essar Group as a photo-journalist. Anurag Banerjee (P.W. 17) was working as her colleague and Ms. Tejal Pandey (P.W. 5) was the head of the department. Her job profile was to photo shoot, filmshoot etc. P.W. 17 had floated the idea of photo-shooting – old dilapidated structures and old articles in Mumbai. The idea was to artistically capture the subjects and to preserve it as memory for future generation. P.W. 6 therefore, decided to work with P.W. 17 on the said project.”
While continuing in the same vein, the Bench then discloses in para 7 that, “On 22/8/2013 P.W. 6 and P.W. 17 left the office at 5 p.m. to proceed to Shakti Mills to photo-shoot and capture the dilapidated structure of Shakti Mills. The only way they knew to reach Shakti Mills was from Mahalaxmi Railway Station. When they reached the compound of Shakti Mills, they saw a dilapidated structure but could not find their way to enter. At that juncture, they were approached by two men- Accused No. 1 and Accused No. 4, who offered to guide them. When they reached inside, they started taking photographs. They did the photo-shoot for about 45 minutes. When they reached the end of the premises, the said two persons again met them. They were accompanied by a third person(Accused No. 3). They informed P.W. 6 and P.W. 17 that they had been seen by Senior Railway Officer in-charge of the premises and therefore, they will have to meet him. P.W. 6 and P.W. 17 wanted to speak to the Senior Railway Officer on cell-phone. However, they insisted upon them to meet them and offered to take them through a short-cut.”
Going forward, the Bench then further stated in para 8 that, “P.W. 6 and P.W.17 followed the three persons. P.W. 6 informed their boss that they were accosted by Railway personnel, on which they were directed to apologize and leave immediately. Thereafter, one of the accused blamed P.W. 17 of having committed murder in Shakti Mill premises. Charge of which was denied by P.W. 17. Thereafter, one of the accused called his associates by saying that “they have got a prey”. Two persons immediately reciprocated to the call and reached P.W. 6 and P.W. 17. P.W. 6 and P.W. 17 offered their belongings to all 5 persons requesting them to let them go unharmed in lieu of their belongings. The offer was denied. P.W. 6 was taken to a dilapidated structure. Just near the structure, the hands of P.W. 17 were tied with a belt and 3 persons stood near him to guard him. P.W. 6 received calls from her mother. She was directed to speak in Hindi and inform about her well-being. P.W. 6 was threatened with a piece of broken glass. Her cell-phone was disconnected. At the point of broken piece of glass, she was directed to denude herself of her clothes. She was made to lie on a dilapidated cement platform. There P.W. 6 was ravished by all 5 persons one after another. They all had vaginal and anal intercourse with her. She was also coerced to have oral sex with one of the accused. She was shown a pornographic clip and then she was forced to imitate the same act as that in the pornographic clip. She was told not to attempt to file a complaint. She was also told that she is not their first prey to have satisfied their lust. There have been many in the past and they could never be apprehended.”
Moving on, the Bench then brings out in para 9 that, “She was suffering from unenduring, agonizing pain. On enquiry she told P.W. 17 what had happened to her. As she was suffering from excruciating pain, they took a taxi to Jaslok Hospital. On the way they called upon Tejal Pandey and informed her about the horrific trauma which they had undergone. At Jaslok Hospital, the survivor narrated the whole incident to the doctor. She was badly injured. She narrated the whole episode with tears in her eyes, pain in her muscles and disgust in her heart.”
Not stopping here, the Bench then further pointed out in para 10 that, “There she narrated the details of the incident to P.W. 39 Dr. Asmita Patki and P.W. 40 Dr. Nisha Singh. Since she had suffered from severe injuries on her vagina and anus and also other parts of her body, she was admitted in ICU. Information was given to N.M. Joshi Marg Police Station. Police rushed to Jaslok Hospital. Her statement was recorded by P.W. 38 WPSI Mhatre. On the basis of her statement, Crime No. 244 of 2013 was registered at N.M. Joshi Marg Police Station. Sketches of the accused were drawn on the basis of the description given by P.W. 17. The sketches were shown to a secret informant who identified the sketch of juvenile in conflict with law. On 23/8/2013 at 6.30 a.m., Spot panchanama was drawn. The juvenile in conflict with law was brought by Agripada Police Station. In the course of interrogation of the juvenile in conflict with law, the names of the miscreants had transpired and they were arrested on 24/25th August, 2013. On 12/9/2013 the statement of P.W. 6 was recorded under section 164 of the Code of Criminal Procedure, 1974 before the Magistrate.”
Read concluding part on thedailyguardian.com