Why the Delhi gangrape convicts were given the death penalty

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Women celebrate after the Delhi gang rape case convicts were awarded death sentence. PTI Photo
Women celebrate after the Delhi gang rape case convicts were awarded death sentence. PTI Photo

The four convicts in the 16 December, Delhi gangrape and murder case were today sentenced to the death penalty for the offence of murder. “Death for all,” announced Additional Sessions Judge Yogesh Khanna saying that the convicts be “hanged by neck till they are dead.” The maximum punishment given for the remaining charges, including that of gangrape, is life imprisonment.

In the judgment order, he reasons his decision to give the death penalty by first pitting the aggravating circumstances (the reasons for giving a convict harsher punishment i.e. the death penalty in this case) against the mitigating circumstances (reasons to reduce the penalty or punishment put forth by the convicts’ lawyers). Once no mitigating circumstances are applicable, the court then applies the Rarest of Rare Test to see if the case falls under the category of such a crime.

The mitigating circumstances presented by the lawyers of the convicts included that they were of a young age as follows: Pawan Gupta (19), Vinay Sharma (20), Mukesh Singh (26) and Akshay Thakur (28). The other reasons stated were that their socio-economic status be considered and that their past records were clean, so a reformatory approach be taken. Drawing from previous Supreme Court judgments, the order states that “when the collective conscience of the community is so shocked, the court must award the death sentence,” and that the manner of committing murder involving inhuman acts of torture must be considered while drawing a distinction between ordinary and horrendous murders.

Looking at the age argument, the judge mentioned several cases including that of recently hanged 26/11 terrorist Ajmal Kasab (25) and others where the Supreme Court has upheld the death sentence despite their age. Similarly, the order mentions past cases of death sentences being given to convicts despite their socio-economic status or the fact that the crime was committed under intoxication. The order also stated prior a judgment which said that “The measure of punishment in the wake of rape cannot depend upon the social status of the convicts or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act.”

Dismissing the argument of clean antecedents, the order states the examples of Dhanajay Chatterjee who was hung for raping a 14-year-old in Kolkata despite being a first-time offender. In addition, it cites the deposition of Ram Adhar, the man who was mugged by the four convicts in the same bus before the convicts picked up the gangrape victim and her friend from Munirka. “The incident belies the claim of the convicts that they had clean antecedents,” it reads, adding that the presumption of innocence also fails as they have now been convicted.

The counsel of Mukesh Singh argued that he had helped the case by admitting that he was in the bus, but the judge refuted the same saying that he probably said this “to seek misplaced mercy” as he took a contradictory stand after seeing that charges would be proved against him too.

Quoting a previous judgment on the Rarest of Rare Test (R-R Test), the order reads that the R-R Test depends on the perception of the society and was not judge-centric. The arguments therefore for death penalty i.e. the aggravating circumstances included that the offence has been committed in an extremely brutal, grotesque and dastardly manner and aroused the intense indignation of society. Further, the act was a demonstration of exceptional depravity and extreme brutality with extreme misery being inflicted on the victim before her death and that it had a grave impact on social order which nullified the mitigating circumstances reasoned by the lawyers of the convicts.

Finally in upholding that the case fell into the category of rarest of rare, he recounted the fact that the entire intestine of the victim was perforated, splayed and cut open. The convicts pulled out her internal organs with their bare hands and rods and caused her irreparable injuries, which shows “extreme mental perversion not worthy of human condonation.” The order further elaborates on the bite marks found on various parts of the victim’s body to shows that the brutality of the crime called for extreme penalty. While adding that the increasing trend of crimes against women could only be curbed when the society knows that there will be no tolerance of such crimes and especially in cases of brutality as in this case, he held that the criminal justice system must instill confidence in the people, especially women. Finally, he held that the ghastly act classified as rare of rarest case for which the convicts be punished under Section 302 to be “hanged by neck until they are dead.”

The judge also recommended that appropriate compensation be given to the legal heirs of the victim and that the Delhi Legal Service Authority decide upon the quantum of compensation to be paid. The convicts now have the option of filing an appeal against the judgment and order within 30 days while the death penalty reference is sent to the Delhi High Court for confirmation.

Punishment on the other charges

302 – Murder: To be hanged by the neck till they are dead + fine of Rs 10,000

120 B – Criminal conspiracy: Life imprisonment + fine of Rs 5,000

365- Kidnapping/abducting with secret or wrongful intent to confine person: Punishment of seven years + Rs 5,000

366 – Abduction with the intention of committing illicit intercourse: Punishment of seven years + Rs 5,000

376 (2)g – Gangrape: Life imrprisonment + fine of Rs 5,000

377 – Unnatural sex: Punishment of 10 years + fine of Rs 5,000

307 – Attempt to murder: Punishment of seven years + fine of Rs 5,000

201 – Destruction of evidence: Punishment of seven years + fine of Rs 5,000

395 (read with Section 397) – punishment for dacoity: Punishment of 10 years + Rs 5,000

412 – Dishonestly receiving stolen property: Punishment of 10 years + fine of Rs 5,000

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