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If not in this case, then in which case should death be given, asks judge

Mumbai, April 4: Three convicts common to two gang-rape cases were today sentenced to hang under a year-old law that punishes repeat rape offences with jail for the rest of one’s life or a death sentence.

“This is the first case in the country where the death penalty has been awarded in a rape case where the victim is alive. I hope this acts as a strong deterrent,” special public prosecutor Ujjwal Nikam said.

Vijay Jadhav, 19, Qasim Bengali, 21, and Mohammad Salim Ansari, 28, had gang-raped a telephone operator and then a photojournalist at Mumbai’s abandoned Shakti Mills compound in July and August last year. They were convicted yesterday under Section 376E of the Indian Penal Code, introduced by the Criminal Law (Amendment) Act, 2013.

“If not in this case, then in which case should death be given?” principal sessions judge Shalini Phansalkar Joshi said at the fast-track court.

“They are a menace to society and should be dealt (the) harshest punishments available in law. (Else, the) common man will lose faith in the system. Common men appreciate the language of deterrence. (Any) leniency… will be a misplaced sympathy and travesty of justice.”

The new rape law was enacted after the December 2012 bus gang rape in Delhi, where the death of the victim after brutal torture converted it into a murder case in the “rarest of the rare” category. But both the Shakti Mills victims have survived.

On March 20, the court convicted four men in each case, with three common to both, against whom Nikam framed an additional charge under 376E for the repeat offence. Of the other two, Mohammad Ashfaque Shaikh, 26, was handed a life term on March 21 and Siraj Rehman Khan, 21, today.

Two minors, one in each case, are to be tried under juvenile law and face up to three years’ detention at a reformation home.

Seeking the death sentence for the trio, Nikam said the accused had boasted before the 23-year-old photojournalist that they had raped many girls on the deserted mill’s premises and had not been caught yet.

“The accused treated the young girls as animals. When the victim was spotted at Shakti Mills, Salim called up Qasim and said ‘Shikaar aaya hai (the prey has come)’. They behaved as if they were hunters and the young girl was their prey,” Nikam said.

The judge noted: “The accused laughed when the victim pleaded (with them) to let her go as she was bleeding…. They not only enjoyed the act of sexual assault but also her helpless nature.”

She said the court had witnessed “her trauma and the pain”, recalling: “When she was asked to confirm the (pornographic) video clip shown by the accused, she fainted.”

Phansalkar Joshi added: “This case is not only a violation of the fundamental and constitutional rights of the victim but also her freedom. It was a crime not only against the girl but against society.”

As for the young age of the accused, she said: “Young age can become a mitigating factor but not in cases of rape or gang rape and repeat sexual offence. Two of the convicts were booked (in the past, for theft) when they were minors, but they... have shown no chance of reforming.”

If “a balance sheet of aggravating and mitigating factors is drawn”, she said, the aggravating factors would “outweigh” the mitigating factors.

Phansalkar Joshi observed that the offence was a pre-meditated act and “diabolic in nature”. She observed: “To expect that society has to silently put up with such depraved behaviour is ridiculous.”

‘Repeat’ debate

Some women’s activists working in the area of sexual violence, however, debated the sentence as well as the conviction, questioning the way 376E had been interpreted.

“I’m opposed to the death penalty per se and, in the context of this case, we also feel the death penalty is disproportionate,” said lawyer Flavia Agnes of the Majlis Legal Centre, which gave emotional and medico-legal support to the two victims.

“My concern is that the death penalty could become more common in rape cases. Secondly, rape victims do not want the death penalty for rapists as nearly 90 per cent of rapes are committed by people known to the victims.”

Agnes echoed the defence, suggesting a repeat rape offender was one who was convicted and sentenced for rape once and was later convicted of a fresh rape — not someone convicted of two rapes on the same day.

The defence too had argued that the two Shakti Mills convictions could not be called “previous” and “subsequent” when they came just five minutes apart.

But the judge had observed: “The legislature very wisely has used the words ‘previously convicted’. The section does not say that the previous conviction has to be a day, a month or a year before the subsequent conviction. Previous conviction may be a few minutes old, a day old or a decade old.”

Pullout plea

Before the arguments on sentencing, the defence lawyers said they wanted to provide more evidence on mitigating circumstances and sought to examine teenaged convict Jadhav’s mother. They asked the court to adjourn the hearing till Monday.

The prosecution said Jadhav’s mother was present on the court premises and produced her.

Later, the defence team said they needed the help of a senior lawyer to argue the legal technicalities of 376E and sought an adjournment, but the court termed it a delaying tactic and refused.

The defence lawyers then said they wanted to retire from the case and withdraw their vakalatnama. The court rejected this too.

“It is very unfortunate that the defence is adopting this attitude and are withdrawing their vakalatnama,” the judge said.

In the judgment, the court said that since the defence lawyers had refused to argue, it was taking into consideration the submissions of the accused themselves.