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The Supreme Court upholds death penalty for Nirbhaya convicts

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Mukesh & Anr. v. State for NCT of Delhi & Ors


The cold evening of Delhi on 16th December, 2012 could not have even remotely planted the feeling in the twenty-three year old lady, a para-medical student, who had gone with her friend to watch a film at PVR select city walk 2 mall, Saket, that in the next few hours, the shattering cold night that was gradually stepping in would bring with it the devastating hour of darkness when she, along with her friend, would get into a bus at Munirka bus stand to be dropped at a particular place; and possibly could not have imagined that she would be a prey to the savage lust of a gang of six, face brutal assault and become a playful thing that could be tossed around at their wild whim and her private parts would be ruptured to give vent to their pervert sexual appetite, unthinkable and sadistic pleasure. The six made the young lady to suffer immense trauma and as a consequence of which she died at a hospital in Singapore in spite of availing of all the possible treatment that the medical world could provide. The friend of the girl luckily survived. After getting thrown out of the bus along with the girl though accused tried to run over them but they saved themselves by their slight movements.   It was their good fortune that the night patrolling vehicle, a motorcycle, arrived and the said man, raj Kumar, pw-72, gave the shirt to the boy and contacted the control room from which a bolero patrol van came and they brought a bed sheet and tore it into two parts and gave a piece to each of the victims so that they could cover themselves and feel civil. Then they took the victims to Safdarjung hospital where treatment commenced. The dying declaration was elaborate where the prosecutrix has described the incident in detail including the act of insertion of a rod in her private parts. She also stated that the accused were addressing each other with names like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”. Once the proceedings began the trial court came to the inevitable conclusion that the incident has been aptly described the prosecution witness 1- the friend. His presence was further confirmed by the DNA analysis (As reported by LiveLaw). the offence under section 376 (2)(g) IPC, the sharing of common intention and the jointness in commission of rape is has been established by the presence of all the accused in the bus; their action in concert as established by the dying declaration of the prosecutrix and the evidence of pw-1, presence of blood in the clothes of all the accused, DNA profile generated thereon being consistent with the DNA profile of the victim.  The accused were convicted vide judgment and order dated 10.09.2013 and on the very next day of judgment i.e. On 11.09.2013, the arguments on sentencing were concluded. Thereafter, a separate order on sentence was pronounced on 13.09.2013.

Counsel for the appellants as well as the learned amicus Mr. Raju Ramachandran contended that no effective opportunity was given to the appellants to lead their defense on the point of sentencing as mandated under section 235(2) cr.p.c. and each of the accused was not individually heard in person on the question of sentence. Learned amicus curiae, Mr. Raju Ramachandran submitted only the counsel for the accused were heard and all the accused were treated alike irrespective of their individual background and were sentenced to death, which is in clear violation the mandate of section 235(2) cr.p.c. it was submitted that section 235(2) cr.p.c. is intended to give an opportunity to the accused to place before the court all the relevant facts and a material having a bearing on the question of sentence and, therefore, salutary provision should not have been treated as a mere formality by the trial court.

Section 235 cr.p.c. deals with the judgments of acquittal or conviction. Under section 235(2) cr.p.c., where the accused is convicted, save in cases of admonition or release on good conduct, the judge shall hear the accused on the question of sentence and then pass sentence in accordance with law. Section 235(2) cr.p.c. imposes a duty on the court to hear the accused on the question of sentence and then pass sentence on him in accordance with law.

Section 354(3) cr.p.c. mandates that when the conviction is for an offense punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence. It is well-settled that section 235(2) cr.p.c. is intended to give an opportunity of hearing to the prosecution as well as the accused on the question of sentence

In case, section 235(2) cr.p.c. is not complied with, the appellate court can either send back the case to the sessions court for complying with section 235(2) cr.p.c. so as to enable the accused to adduce materials; or, in order to avoid delay, the appellate court may by itself give an opportunity to the parties in terms of section 235(2) cr.p.c. to produce the materials they wish to adduce instead of sending the matter back to the trial court for hearing on sentence. In the present case, we felt it appropriate to adopt the latter course and accordingly asked the counsel appearing for the appellants to file affidavits/materials on the question of sentence. Consequently, vide order dated 03.02.2017, the court directed the learned counsel for the accused to place in writing, before this court, their submissions, whatever they desired to place on the question of sentence. In compliance with the order, Mr. Sharma learned counsel on behalf of the accused A-2 Mukesh and A-5 Pawan and Mr. A.P. Singh, learned counsel on behalf of the accused Akshay Kumar Singh, Vinay Sharma and Pawan Gupta filed the individual affidavits of the accused


Is there something uncommon about the crimes which regard sentence of imprisonment for life inadequate

Whether there is no alternative punishment suitable except death sentence. Where a crime is committed with extreme brutality and the 422 collective consciences of the society is shocked, courts must award death penalty, irrespective of their personal opinion as regards desirability of the death penalty. By not imposing a death sentence in such cases, the courts may do injustice to the society at large.


The court explained that based on various case laws for awarding death sentences the court needed to analyze the nature and the manner of the act committed by the accused, and the effect it cast on the society and on the victim’s family, are to be weighed against the mitigating circumstances stated by the accused and the scope of their reform, so as to reach a definite reasoned conclusion as to what would be appropriate punishment in the present case- ‘death sentence’, life sentence commutable to 14 years’ or ‘life imprisonment for the rest of the life’ the court explained ; “ 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 winter night, with grievous injuries. 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. The acts committed so shook the conscience of the society. Crimes like the one before us cannot be looked with magnanimity. Factors like the young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime remorse and post-crime 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 “rarest of rare cases”.  The court did not find any justification for converting the death sentences imposed by the courts below to ‘life imprisonment for the rest of the life’. The court also added “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 into 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 ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’. If at all there is a case warranting an award of a death sentence, it is the present case.

Learning outcome

The statistics of national crime records bureau which I have indicated in the beginning of my judgment show that despite the progress 428 made by women in education and in various fields and changes brought in ideas of women’s rights, respect for women is on the decline and crimes against women are on the increase. Offenses against women are not a women’s issue alone but, human rights issue. Increased rate of crime against women is an area of concern for the law-makers and it points out an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. With this judgment, the court has ensured that the human lust won’t be allowed to take such a demonic form.

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