The Telegraph
Wednesday , July 16 , 2014
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Young rapists given ‘good conduct’ timeout

Mumbai, July 15: Two men just short of legal adulthood when they gang-raped a photojournalist at the derelict Shakti Mills compound here last year were today sentenced to learn “good behaviour” for three years at a youth detention centre.

Secure in the knowledge that the Juvenile Justice Act protected them from a harsh sentence, the duo argued noisily with the judges, demanding to be put in a reformatory home in Mumbai instead of being shifted to a borstal school in Nashik, 250km away.

“Under the law, three years in a borstal school is the maximum possible punishment for juveniles even for serious crimes. One of the convicted juveniles even breached the conditions of his bond during trial,” special public prosecutor Ujjwal Nikam told The Telegraph.

“He had been let off during the trial on the promise of good behaviour — as is done with juveniles. But he committed some petty crimes like theft during the period. The court was aware of all this but had to go by the current law.”

Only yesterday, the Supreme Court had nudged the government to reconsider the immunity granted to juveniles even in heinous crimes, saying “you can’t have a cut-off date (age) for crime” like government jobs have for promotions and retirement.

In sharp contrast with the two juveniles’ fate, three of their adult fellow convicts earlier became the first Indian rapists to be sentenced to death though their victims were alive, under a year-old law that punishes repeat rapes with life terms or the noose.

One of the juvenile accused had his father in the courtroom and the other his mother when the sentence was delivered.

The borstal school in Nashik, better known as Kishor Sudharalay, houses inmates aged between 16 and 21. It has neither a psychiatrist nor a counsellor — an absolute must for youth correctional homes across the world, Nikam said.

“We have got approval for both posts but we are not sure when they will be filled up. No one wants to take these postings,” said a senior official of the Maharashtra prisons department.

“The moot point is whether we can make some changes to the existing juvenile law. There is a dire need for that, especially in cases where it is proved beyond doubt that the juvenile has committed a heinous crime like gang rape or murder after previous planning and despite knowing the consequences of such a crime,” Nikam said.

“In such cases the juveniles should be tried under the Indian Penal Code.”

Following public pressure after the brutal December 16, 2012, Delhi bus gang rape — where one of the convicts was a minor — the government had proposed amendments to the JJ Act. The draft bill, awaiting cabinet clearance, gives the Juvenile Justice Board leeway to decide whether someone aged between 16 and 18 and accused of a heinous crime should be tried under the regular law.

Nikam alleged that “many cross-border and global terror outfits”, aware of Indian juvenile laws, “are calling out to Indian teenagers and children to join them”.

“It is imperative that our legal system closes the loopholes in our laws that allow serious offenders to escape deterring sentences on the pretext of being juvenile,” he added.

The three adult males sentenced to hang in April were part of a gang that raped unsuspecting women who wandered into the deserted mill compound.

They had gang-raped a telephone operator in July last year and, a month later, the 21-year-old trainee photojournalist who had come with a male colleague to take photographs as part of a professional assignment.

A fast-track court sentenced them to death 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?” the principal sessions judge, Shalini Phansalkar Joshi, had said.