Nirbhaya Case

Introduction  

The increasing rate of unwanted, dangerous participation in offending activities which may result in series of offences, is the troublesome issue for society as is facing the difficulties with fear in their routine life. One of the issue is being discussed at large at present in society, known as ‘Nirbhaya case’ as incident happened on 16.12.2012. That come to sense the entire world. 

The issue in the unfortunate, brutal, tremoring incident was came before society, whether protection available to juveniles, below 18 years of age as accused would be reduced considering the present provisions of Indian Penal Code, 1860 and be reviewed? When such brutal, heinous act is done by the accused though they may be shown below 18 years, would they certainly be treated not to be eligible, entitled for benefits on that ground? Would it be considered in the present facts and changing circumstances of society and would be held as are fully aware about their offending act, participation in the act of committing rape and thereafter murder of the victim?

Whatever may be the reason and motive behind the act though done by accused, below 18 years of age, would certainly know the severity and its consequences. There are several sources of getting knowledge, information to juveniles as are part of the society, is increased and can be available in earlier age through books, internet, social media, TV etc., hence become alarming situation and we have to face with severe solution thereon. Dr. Subramanian Swami This aspect is to be considered while deciding the age of the accused as eligible for punishment.

Relevant legislations, Legal Provisions and precedents relied on 

• Relevant Legislations and Provisions

1. Indian Penal Code, 1860
2. Indian Evidence Act, 1872
3. Criminal Procedure Code, 1973
4. The Juvenile Justice (Care and Protection of Children) Act, 2000

• Precedents relied on 

1. Bachan Singh v. State of Punjab” (1980) 2 SCC 684 
2. Machhi Singh v. State of Punjab (1983) 3 SCC 470
3. Devender Pal Singh vs. State (NCT of Delhi) (2002) 5 SCC 234 
4. Ram Singh v. Sonia &Ors. (2007) 3 SCC 1 
5. C. Munniappan v. State of Tamil Nadu (2010) 9 SCC 567 
6. Ajitsingh Harnamsingh Gujral v. State of Maharashtra (2011) 14 SCC 401 
7. Sunder v. State (2013) 3 SCC 215 
8. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra (2012) 9 SCC 1 
9. Atbir v. State (NCT of Delhi) (2010) 9 SCC 1
10. Vikram Singh v. State of Punjab (2010) 3 SCC 56
11. Shivu v. High Court of Karnataka (2007) 4 SCC 713
12. Kumar v. State of M.P. (1999) 5 SCC 1 
13. Dhananjoy Chatterjee v.State of West Bengal (1994) 2 SCC 220. 
14. Shimbhu v. State of Haryana 2013 (10) SCALE 595
15. State of Karnataka v. Krishnappa (2000) 4 SCC 75. 
16. Gurvail Singh @ Gala &Anr. vs. State of Punjab, AIR 2013 SC 1177 

Brief Facts of case and discussion

• Brief Facts 

1. On 16.12.2012 at night in Delhi, unfortunate Jyoti Singh along with Arvind Pratap Pandey were returning home by bus. While they were in bus, there were six men including driver of bus who badly beat them and she was raped by group of men in running bus. Thereafter attackers throw them from bus. They were hospitalised and treated. After several operation and medical treatment at different places, she died at Singapore on 29.12.2012. 
2. FIR was lodged and Police found some suspected within 24 hours of incident with help of recording of highway CCTV vehicle. On 21.12.20122, Government promised to file charge-sheet quickly on accused and seek the maximum penalty. On 28.1.2013, Juvenile Justice Board declared that juvenile will not be tried as an adult. Petition was filed by Dr. Subramanian Swamy, President of Janata Party seeking prosecution to minor as an adult because of his extreme violent act. The minor, Mohammad Afroz, was tried separately by Juvenile Court. He was convicted but considering the express provision, he cannot be detained more than three years hence he was released and that was approved by Hon. Supreme Court.
3. FIR was lodged against adult accused U/s 120B IPC & U/s 365 / 366 / 376(2)(g) / 377 / 307 / 302 and / or 396 /395 IPC read with section 397 / 201 / 412 r/w section 120B IPC against – 1. Ram Singh, since deceased. Hence proceedings abated against him on 12-03-2013.  2. Mukesh S/o Shri Mange Lal 3. Akshay Kumar Singh S/o Shri Saryu Singh 4. Vinay Sharma S/o Shri Hari Ram Sharma 5. Pawan Kumar @ Kaalu S/o Shri Heera. Trail was concluded, arguments were heard, they found to be guilty and arguments on sentence concluded on 11-09-2013 and on 13-09-2013 order of sentence was passed after hearing on point of sentence.  
4. The prosecution argued that looking at the crime committed by convicts be awarded maximum penalty of death. However, counsel for convict person argued and raised the following issues to be considered at the time of award of the sentence and death sentence should not be awarded – 
a. The young age of convict person viz., Pawan Gupta @ Kaalu, aged 19 years ; convict Vinay Sharma, aged 20 Years; convict Mukesh aged 26 years and convict Akshay Kumar Singh @ Thakur aged 28 years. 
b. socio-economic conditions of convict person, they being poor making two ends meet, having families to support ; 
c. clean antecedents and be given chance of reformation ; 
d. the presumption of innocence being in their favour ; 
e. life imprisonment being the rule and death being an exception and there being no special reasons to award death sentence ; 
f. they being convicted only on the ground of conspiracy and not of their individual acts ; 
g. that convict Mukesh and convict Pawan were drunk at the time of incident and that accused Mukesh was driving the bus throughout. 

• Discussion 

1. To award death penalty has to first weigh aggravating circumstances against the mitigating circumstances and if there are no mitigating circumstances then the court need to apply the ‘Rarest of Rare test’ to find if the case falls within such category. 
2. There is dispute about this proposition and is developed by several precedents of Hon. Supreme Court – 
a. Bachan Singh v. State of Punjab – Extreme depravity constitute legitimate special reason for award of death sentence. 
“In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments.” 
“if a murder involves exceptional depravity, it shall be an aggravating circumstance for imposition of penalty of death.” 
b. Machhi Singh v. State of Punjab
“In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it”. 
The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance : (i) manner of commission of Murder i.e., when the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community ; (ii) whether the victim is subjected to inhuman acts of torture of cruelty in order to bring about his or her death. 
c. Devender Pal Singh vs. State (NCT of Delhi) – “Principle culled out from the judgments in Bachan Singh (supra) and Machhi Singh (supra), is that when the collective conscience of the community is so shocked, the court must award the death sentence.” 
d. Ram Singh v. Sonia &Ors– “It would be a failure of justice not to award the death sentence in a case where the crime was executed in the most grotesque and revolting manner”. 
e. C. Munniappan v. State of Tamil Nadu – “Stressing upon the manner of commission of offence, if extremely brutal, the diabolical, grotesque killing, shocking to the collective conscience of the society, the death sentence should be awarded.” 
f. Ajitsingh Harnamsingh Gujral v. State of Maharashtra – “the distinction has to be drawn between ordinary murders and murders which are gruesome, ghastly or horrendous. While life sentence should be given in the former, the latter belongs to the category of the rarest of rare cases, and hence death sentence should be given.” 
g. Sunder v. State – “Inter alia, the following factors to be the aggravating circumstances : a) The accused have been held guilty of two heinous offences, which independently of one another, provide for the death penalty ; b) No previous enmity between the parties, no grave and sudden provocation which compelled the accused to take the life of the prosecutrix ; c) Extreme mental perversion ; d) The manner in which the victim was murdered, and the approach and method adopted by the accused, disclose the traits of outrageous criminality in the behaviour of the accused ; e)Well planned and consciously motivated crime ; f) Extreme misery caused to the aggrieved party. 
3. Supreme Court repeatedly held that young age of accused is not a determinative factor by itself against award of the death sentence. Rather all the circumstances need to be taken together and proper weightage to be given to each circumstance. 
4. Similarly the socio-economic status of the convict ; or the convict being under any intoxication cannot be the determinative factors in sentencing as has been held in ; a) Shimbhu v. State of Haryana; b) State of Karnataka v. Krishnappa. 
Krishnappa's case – “The reasons that accused an unsophisticated and illiterate citizen belongs to the weaker section of the society ; that he was a chronic addict to drinking and had committed rape of a girl where in the state of “intoxication” and that his family comprise of a old mother, wife and children depends upon him. These reasons are neither special nor adequate. 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 assault female and the gravity of the criminal act. The crimes of violence upon women needs to be severally dealt with. The social economic status, religion, race, caste or creed of the accused or the victims are irrelevant consideration in sentencing policy. The protection of society and deterring the criminals is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing court are expected to consider all relevant facts into consideration bearing on the questions of sentence and proceed to impose a sentence commensurate with the gravity of the sentence. Court must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea of leniency would be wholly misplaced. 
5. The submission qua clean antecedents or a chance of reformation, Referred judgments where the accused were first offenders but were awarded death for the acts they had committed viz., (a) Mohd Anis Kasab (Supra) and (b) Dhananjay Chatterjee (Supra). 
6. Deposition of PW82 Shri Ram Adhar wherein he had deposed about dacoity committed with him by the convict person along with their associates in the same bus on the time just prior to the incident belies the claim of the convicts that they had clean antecedents. Qua plea of reformation, it may be added that in Sunder's case (supra) Hon. Supreme Court observed that the method adopted by the accused may disclose the traits of outrageous criminality in the behaviour of accused. Further, the plea of presumption of the innocence in favour of the convicts is now not available to them since they stand convicted. 
7. Convict person are not convicted only on account of conspiracy but also for their overt acts. Lastly, plea of convict Mukesh that he had helped system by admitting that he was present inside the bus, is probably to seek misplaced mercy as he took this contradictory stand in his statement under section 313 Cr.P.C to save himself after he found the chain of circumstances being proved against him too. 
8. Gurvail Singh @ Gala &Anr. vs. State of Punjab –  “to award the death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, then the Court has to finally apply the Rarest of Rare Cases test (R-R Test), which depends on the perception of the society and not “judge – centric”, this is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls and the court award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people”. 

Applicability of the precedents to present case

1. The aggravating circumstances are – (a) Offence in the present case has been committed in an extremely brutal, grotesque, diabolical, revolting and thus dastardly manner so as to arouse intense and extreme indignation of society. (b) Demonstration of exceptional depravity and extreme brutality; (c) Extreme misery inflicted upon the prosecutrix before her death: (d) Grave impact of the crime on social order. 
2. The mitigating circumstances, as alleged, are (a) the young age of the convict; (b) their socio economic status as also the plea of the reformatory approach and (c) their clean antecedents. 
3. These circumstances, as alleged, have been dealt with by me in earlier part of this order. The aggravating circumstances thus outweigh the mitigating circumstances. 
4. R-R Test – If the case is covered under the bracket of rarest of rare case. 
The facts show that entire intestine of the prosecutrix was perforated, splayed and cut open due to repeated insertions of rods and hands. The convicts, in the most barbaric manner, pulled out her internal organs with their bare hands as well as by the rods and caused her irreparable injuries, thus exhibiting extreme mental perversion not worthy of human condonation. 
As convict in pursuance of their conspiracy lured the victims into the bus Ex. P-1, brutally gang raped the prosecutrix, inflicted inhuman torture and threw the defenceless victims out of the moving bus in naked condition, profusely bleeding in a cold winter night; their unprovoked crime demonstrated exceptional depravity of mind of the convicts. 
In the post-mortem report, besides other serious injuries, various bite marks were observed on her face, lips, jaw, near ear, on the right and left breasts, left upper arm, right lower limb, right upper inner thigh (groin) , right lower thigh, left thigh lateral, left lower anterior , genital. It rather show the beastly behaviour of convicts. 
Further, convicts did not stop after pulling out her internal organs after the crime of gang rape / unnatural sex but then had dragged the victims to the rear door of the bus to be thrown out and when the rear door was found jammed the victims were dragged by their hairs to the front door and thrown out of the moving bus. Her intestines were so severally damaged and the suffering inflicted on the prosecutrix was unparalleled. The brutality caused to her internal organs is extreme as is evident from medical evidence on record and hence act of convicts call for extreme penalty. 
5. The Gurvail Singh's case (Supra) guides us that R-R test largely depends on the perception of the society as to if it approve the awarding of death sentence to certain types of crimes. The court has to look into the factors like society's abhorrence, extreme indignation and antipathy to certain types of cases viz., like the case in hand - of gang rape with brutal murder of a helpless girl by six men. These are the times when gruesome crimes against women have become rampant and courts cannot turn a blind eye to the need to send a strong deterrent message to the perpetrators of such crimes. The increasing trend of crimes against women can be arrested only once the society realize that there will be no tolerance from any form of deviance against women and more so in extreme cases of brutality such as the present one and hence criminal justice system must instil confidence in minds of people especially the women. 
6. The crime of such nature against helpless women, require exemplary punishment. The gravity of incident depicts hair rising beastly and unparalleled behaviour. The subjecting of the prosecutrix to inhuman acts of torture before her death had not only shocked the collective conscience but calls for withdrawal of protective arm of the community around the convicts. This ghastly act of the convicts definitely fits the rarest of rare cases. 
7. Hence, all were convicted under different provisions by Sessions Court. It is notable that court also further recommend that appropriate compensation, under section 357-A Cr.P.C be awarded to the legal heir's of prosecutrix and hence, copy of this order be sent to Secretary, Delhi Legal Service Authority, New Delhi, for deciding the quantum of compensation to be awarded under the scheme referred to in sub-section 1 of section 357-A Cr.P.C. The convicts are also informed that they can file an appeal against the judgment and order on sentence within a period of 30 days as per Article 115 of the Limitation Act, 1963. Attested copy of the judgment, order on sentence, copy of charge, evidence, statement under section 313 Cr.P.C, exhibited documents be given to the convicts, free of cost. The exhibits be preserved till the confirmation of death penalty by the Hon. High Court. The death penalty reference is being sent to Hon'ble High Court of Delhi for the confirmation of the same.

Conclusion and importance of case

• Conclusion

The discussion made by the court is the conclusion of the case and the principles which are to be applied in such situation, circumstances.

• Importance of case

To maintain law and order in society, the people must feel that they are safe in their day-to-day life. To avoid anarchy in society, for smooth functioning of society and to Government, to maintain faith in the administration of Government, it is necessary to prevent the repeated offending incidents of any type otherwise its repetition would lower down the faith in Government and its administration by resulting depression to law-abiding persons and would be resulted in boosting the criminals to commit these type of and other wrongful activities, if they come to know the way to get rescue from possible punishment. The strength of Government is to get the support from people permanently, continuously which is its basic need and that can mostly be get from having faith in Government that it would do something for society and to prevent the offending incidents by adopting the punitive mode of punishment. The women is the major and half part of our society which supports its health as is necessary to maintain the faith of each family, member of family of our society. 

It is very unfortunate for us that Nirbhyas death motivated us to incorporate certain provisions in the light of arrival of such elements deteriorating the health of society. The following steps as taken by Government.
1. On 12.12.2012, Judicial Committee headed by Justice J. S. Varma, Former Chief Justice of India with other eminent jurists was appointed by Government of India to suggest the amendments in criminal law to deal with sexual assault cases. The report was suggested indicating the root cause of failure of Government and police but did not favoured lowering the age of juvenile from 18 to 16.
2. In addition to the inquiry headed by Justice Usha Mehra, Former Judge, Delhi High Court on 26.12.2012 for determination lapses and responsibility in relation to incident and for suggesting measures for safety of women in National Capital. On 1.1.2013, Task Force was established under the head of Union Home Secretary to look into the safety of women.
3. On 3.2.2013, Criminal Law (Amendment) Ordinance, 2013 was issued for amendment in Evidence Act, Indian Penal Code and Criminal Procedure Code under the signature of Hon. President, Pranab Mukharjee wherein death penalty was provided in cases of rape. 
4. On 12.12.2015, Rajya Sabha passed the Juvenile Justice Bill.