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The Division bench consisting of Justice B P Dharmadhikari and Justice Revati Mohite Dere of the Bombay High Court, passed a crucial judgment. It upheld the constitutional validity of Section 376-E of IPC which provides that repeat offenders in rape cases can be awarded life imprisonment or death penalty. The case in question was the infamous Shakti Mills Case. The bench dismissed the petitions filed by three convicts in the gang rape case. Death penalty was awarded to Vijay Jadhav, Mohammad Qasim Shaikh and Mohammad Salim Ansari by the Trial Court for the gang-rape of an 18-year-old call centre employee in July 2013 and 22-year-old photojournalist in August 2013.
According to Section 376E, legislature treats the offence of repeat rape that does not cause homicide is harsher than the offence of murder. However, the argument put was that how can the death penalty be awarded when another life was not been taken. The government however contended this argument by saying that rape even though it is non-homicidal deserved to be treated as the gravest offence as it was not merely a physical attack, but also destroyed the soul of the victim, personality as well. Thus the consequences are both physical and psychological. The right to live with dignity is compromised. The effects of rape is lifelong. Hence it can be said that it is graver than murder.
The punishment also does not violate the principle of proportionality nor is it arbitrary in anyway. The provision Section 376E does not make death sentence mandatory.The sentence prescribed for repeat offence under Section 376-E is either, imprisonment for life which means for the remainder of one's life or with death. This provision does not create a new category of punishment, which is imprisonment for life, which means imprisonment till the remainder of a convict's life.
Lastly, the aspect which has been dealt with is the aspect of remission. If a person has been convicted under the provision then,he would be entitled to claim remission, commutation, etc. as provided under Article 72 or Article 161, being the constitutional remedies.
This judgment is a welcome change from the other judgments passed with relation to rape and its punishments.
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