• Court Name-SUPREME COURT OF INDIA
• Date of Judgment– 5 MAY 2017
• Citation– 
• Bench Name- DIPAK MISHRA, R.BANUMATHI AND ASHOK BHUSHAN,JJ.

 SUMMARY OF FACTS –

A twenty-three-year-old woman, a para-medical student, who had gone with her companion to watch a film at PVR Select City Walk Mall, Saket, on a breaking cold night got into a means of transport at Munirka transport stand to be dropped at a specific spot; One of accused persuaded them to get on a vacant transport with colored/tinted windows. Where they were attacked by six guys, one of whom was a minor, aged 17. The companion, when he attempted to secure Nirbhaya (“Nirbhaya” is the pseudonym used for the rape victim)., was pummeled and beaten by the culprits. Nirbhaya was explicitly damaged and sexually violated, her body was mutilated, and private parts were ruptured to give vent to their degenerate sexual appetite. Her intestinal tracts were pulled out, and private parts were ruined and mutilated and she became a prey to the lust of gang of six and brutal assault. The companion of the young lady was able to survive regardless of being tossed outside the transport alongside the young lady and the endeavor of the charged appellants to run over them got vain as Nirbhaya and her companion, by their slight movement, could escape from being squashed under the transport, and the appellants left them believing that they were not anymore alive. Lying exposed, as the garments were expelled from their bodies, they yelled for help and as favorable luck would have it, the late evening patrolling vehicle, a motorcycle, showed up and the said man, Raj Kumar, gave the shirt to her companion and reached the control room from which a Bolero watch van came and they brought a bed sheet and torn it in two sections and gave a piece to each so that they could cover themselves and feel civil. The PCR van took the victims to the Safdarjung Hospital where treatment initiated. Later, Nirbhaya died of various organ failure, internalbleeding, and cardiac arrest on the 29th December, at a hospital in Singapore where she had been taken to with the expectation that her life could be saved. There was a great deal of social shock because of the gruesome occurrence. There was a great deal of candlelight march, solidarity movements, and protests. The shock was not confined to India, the entire world had formed an opinion about India.

ISSUES RAISED- 

1. Whether rape as defined under section 375 of the IPC covers the offence entirely?
2. Whether death penalty can be given to the convicts as punishment for such heinous crime?
3. Whether a juvenile committing the offence should get punishment equivalent to the adult?
4. Whether public outrage can influence the judgement in a case?
5. Whether the sexual offences against women is tried appositely in India?

 CONTENTIONS FROM BOTH THE SIDES

The contention of the defense counsel was that the DNA report was deficient and contended that DNA test can’t be treated as precise as the victim had experienced blood transfusion during the treatment and when there was a transfusion of blood, DNA profiling was probably going to vary. The contentions of the defense counsel that the bite marks were stage-managed.The contention of Defense counsel was that the victim could not have given any dying declaration because of her health condition. The defense counsel and amicus curiae were reproachful of the withering announcements, saying they ought not to be considered as they do not rouse certainty due to irregularities and enhancements in them. They also argued that the third dying declaration made through signals needs believability and it ought to have been video-charted, needs substance. Convicts Pawan Kumar Gupta and Vinay Sharma had asserted that on the night of December 16, 2012, they were in the DDA District Park in Hauz Khas territory of South Delhi viewing a melodic occasion sorted out regarding Christmas festivity and they were not in the transport and had not committed any offence with the lady or her companion. Third convict Akshay Kumar Singh alias Thakur had guaranteed that he was not in Delhi the evening of the episode and left for his town in a train a day prior on the ticket of his sibling Abhay, alongside his sister-in-law and nephew. The defense witnesses brought by him were his family members including his significant other and, as saw by the preliminary court and high court, they attempted to wriggle him out of the chaotic circumstance, similar to the regular impulse of the family members. The seat saw that the DNA profile created from the bloodstains acquired from the iron poles was predictable with the DNA of the person in question. The defense counsel had asserted that the police had created the tale about utilization of iron poles, as neither the casualty nor her companion, who was likewise ambushed inside the transport, had referenced about it in their first proclamations and were not mentioned in the  FIR. The contentions of the defense counsel that utilization of iron poles was not referenced in the FIR, the convicts claimed that their names were not at first referenced in the FIR.They argued that Batla house blamed got life; was let off because of governmental issues, why death for this assault accused at this point? The counsel asked that Why Parliamentarians charged in dacoity, assault and murder are not attempted by fast track courts?  they mentioned that Poor get imprisoned as they cannot employ great legal advisors. in their defense, they argued that Convict Vinay Sharma is a decent student and has applied for the Air Force and did not commit the crime.Akshay is liable for his evil guardians, spouse, and youngster. He ought to be indicated benevolence. Invoking Mahatma Gandhi’s name, legal advisor A P Singh says, “God gives life and only he can take it and not man-made courts” Life imprisonment is the standard, and death punishment is a special case.  Death is irreversible; the purpose of justice is reconciliation and reform. All the arguments of the defense counsel were rejected by the supreme court and the prosecution has made it very clear that it needs death punishment for all the four convicts. The prosecution has contended that there is no motivation to show the convict’s benevolence. The prosecutor says they have killed a vulnerable young lady when even she asked for mercy. The prosecutor says there ought to be ‘no benevolence for cruel convicts’. The crime committed by them was against the society.

JUDGMENT OF THE CASE

The court held that there should be consideration of both mitigating and aggravating factor and there should be a balance between the two. In this case there were mitigating factors like the dependent and ailing parents, the age of the convicts, behavior in jail, no criminal antecedents, post-crime remorse but the aggravating factors outweighed them. The court held that the conspiracy involving gang rape and murder inside moving bus was brutal, barbaric, and diabolic and the victim’s companion was assaulted and brutally beaten and robbed. Moreover, they tried to run the bus over her after throwing them out of the bus naked on a wintery night.  The evidence clearly displayed that the victim’s internal organs were perforated and slayed open due to repeated insertion of iron rods and hands and caused grave injuries to the victim who later succumbed to her injuries. The convicts had also tried to destroy evidence by washing the bus and burning the clothes of the deceased after that they distributed the loot among themselves which confirms death sentence. A committee was formed and criminal law (amendment) act, 2013 was enacted to tackle sexual offences effectively. The court mentions that the mitigating circumstances were not enough to take the case out of the category of rarest of the rare case and hence, affirmed death sentence.

COMMENTS ON THE CASE

After increasing huge amounts of national and worldwide attention, Delhi’s “Nirbhaya” rape case turned into an urgent defining moment and a turning point for India’s women’s activist and the feminist movement. In the time since this case, India’s administration has found a way to propel laws and policies with respect to violence against ladies. Her case started a momentous movement, known as the “Nirbhaya Movement,” which caused to notice the prevalence of sexual viciousness against women in India. Fights, protests, and public pressure, both nationwide and global, pressurized the Indian government to make a move. They made an elevated high-level committee; run by the previous Chief of Justice of India, Justice Verma, called the Verma Committee. Their key suggestions were to enlarge the meaning of “rape” to incorporate non-penetrative sex, make new offenses for acts, for example, acid attacks and sexual harassment, and increment punishments for those sentenced for rape. These proposals were completely brought into the Indian Penal Code (IPC) through the Criminal Law Amendment Act of 2013 likewise called the anti-rape act. The National Crime Records Bureau (NCRB) came out with an announcement saying that rape reports had risen, while conviction rates had diminished, the National Commission for Women finished up a need to redesign provisions for sexual assault in the IPC. These provisions included reclassifying consent, rape, and molestation. 

There was the inclusion of Section 166A which covers the offense of Disobedience of law by a servant of the public, after the amendment Act 2013, where the punishment would be thorough detainment for a half year to 2 years and liable to fine. 

Inclusion of Section 326A and B which spread the issue of Acid attack. The amendment Act has made it a Specific Offense under the Act, punishable with 10 years Imprisonment extendable to life detainment or fine or both. Inclusion of Section 354A, that deals with Sexual harassment and punishment for the same. Inclusion of Section 354B, that deals with the offense of compelling a lady to take off her garments. Inclusion of Section 354C, which covers the offense of Voyeurism- which is viewing a lady when she is occupied with some private demonstration including sexual acts or when her sexual organs are uncovered. Inclusion of Section 354D, which covers the offense of stalking. The Age of consent has been increased from sixteen years to eighteen years. 

• The meaning of rape has been broadened after the Nirbhaya Case. The Amendment Act has included more activities under the domain of what comprises rape, for example, unconsented penetration of mouth, urethra, vagina, anus with the penis or different items by anybody and unconsented application of mouth to vagina, urethra, and anus. Inclusion of Section 376 (2) (c), which covers the offense of Rape by personnel of the armed force. Inclusion of Section 376A, which deals with the offence of Rape which can result in death or vegetative state. Insertion of Section 376D, which deals with the offence of gang rape. Repetition of offences is punishable with life detainment or death. Employment of a trafficked person can pull in penal provisions also. It has additionally been explained that penetration signifies “penetration to any extent”, and the absence of physical resistance or such different resistances is unimportant for comprising the offense of rape. 

The Government of Karnataka announced the dispatch of an all day, every day committed helpline (1091) to help ladies in enrolling any grievance against any type of sexual maltreatment. The setting up of fast track courts to dispose of pending cases and provide immediate help to victims. The government of Tamil Nadu likewise declared a 13-point action plan to ensure the wellbeing of ladies in Tamil Nadu. The Jammu and Kashmir government launched plans to amend the state’s laws against sexual offenses as the level of wrongdoing against ladies has been overhauled nowadays. The Himachal Pradesh government chose to set up state and region level committees to check the assaults committed against women in the state. The National Council of Education Research and Training has since created course readings/ textbooks and lesson plans concentrated on “gender sanitization,” which intend to bring issues to light of gender issues among school-going children. After the Nirbhaya movement, gender sanitization turned out to be popular and was carried out through various projects and workshops. Delhi’s taxi drivers and rickshaw drivers are currently required to take a gender sanitization course so as to renew their business license. These two-hour classes focus around showing the drivers how to respect and ensure the security of women travelers.

It is no uncertainty that administration is finding a way to decrease assault/sexual offenses, notwithstanding, no tough safeguard moves are made to stop the event of such offenses. The very underlying foundations of the law should be made more grounded before hopping over onto the branches. remedial activities may dispose of the non-conformities in-laws by deterring the accused from perpetrating such wrongdoings. Anyway, to those hardened lawbreakers or psychopaths who discover no blame in overlooking the laws, taking preventive activities would wipe out the reason for potential wrongdoing itself. It is much the same as we have standards of State Policy and fundamental rights together, we ought to have both the Act and preventive strategies of acting carefully to stop the commission of such wrongdoings. The significant ill-defined situation in the Nirbhaya case is that it does not recommends steps or strategies to be followed by police to forestall the event of the violations against the ladies. The preventive activity remembers cautious activities by police for connecting with the victim on time and sparing her from turning into a substitute in the possession of wild creatures.

Author: Swati Anand

Legal Intern (June 2020)