ASSIGNMENT
SUBJECT : LAW Of criminal procedure
Topic : Mukesh v. State of nct of delhi
air 2017 sc 2161
Submitted to
Sajani Mam
NAL
INTRODUCTION
Rape being one of the most serious crimes all over the world takes place
often in all parts of the country some of which are noticed and made
news while some are unnoticed. The rapist and the victim may change
but the law all over the world tags such act as a serious offense. No
territory has any law with a provision for forgiving the accused. Some
territories implement the punishment as soon as the crime is proven.
Some nations give a chance to prove the innocence of the accused.
India is one among such nation which grants the time and opportunity to
the accused to prove his innocence. This grant of time causes changes
and delay in the delivery of justice. Among all such events that took
place in India, a remarkable incident was the case of Mukesh & Anr v.
State for NCT Of Delhi & Ors. popularly known as the Nirbhaya Case.
The Indian rape laws do not allow using the victim’s name in the media,
thus such a term was given to the case, wherein ‘Nirbhaya’ means
fearless.
FACTS OF THE CASE
An act of gang rape was committed by six men in a running bus in Delhi
on 16th December, 2012 while she was going back to her home with a
male friend accompanying her. The original name of the victim is
unpublished and mentioned as Nirbhaya in all discussions. Nirbhaya a
23 year old lady was waiting at the bus stop with her male friend at
night. Soon the bus arrived which was empty had only six men and a
teenage boy was convincing her to enter the bus as they were heading to
the direction of her house. She was convinced and entered into that bus.
The driver along with five other members including a minor of age 17
engaged in the act of forceful sexual assault. The friend who tried to
protect Nirbhaya from such forceful acts was beaten up brutally by all
those six men. That running bus was made a place that day for the brutal
rape and various other harsh injuries. Some of those men were drunk and
one was nearly a psychopath. She was not only raped but also beaten up
badly as if she was a non living object. An iron rod was inserted into her
private parts and to her internal organs. Her intestine was pulled out.
And after committing this heinous crime she and her friend were thrown
out of that moving bus to die in a naked condition during the chilly
winter time of Delhi. Several vehicles passed by some went unnoticed,
some noticed but ignored, some didn’t wanted to help them out. After
several hours of hardship and pain of the injuries which she had
someone came up to help and informed the police. She was later
admitted to the hospital for treatment but soon ended up joining hands
with death.
She was not even in a condition to speak up and narrate the amount of
immense pain she has gone through. She was struggling and still
fighting against all her odds but her strength failed apparently when she
lost her life with a single wish and her last wish to punish those devils
and provide justice to her. Her death bed witnesses her physical and
mental instability, multiple organ failure, internal bleeding, cardiac
arrest, and various other troubles. She died on 29th December.
ISSUES
Whether the offenders should be punished with life imprisonment
or death penalty?
Whether the minor should also be punished for this heinous act or
should be sent to juvenile home?
Whether the scope of Section 375 should be expanded?
Whether the rape laws present in the IPC should amended for
good?
ARGUMENT AND ANALYSIS
As the case was made very strong from its trial from the level of
subordinate court, the appeal made by the respondent against the
judgment of the subordinate court at the High Court also gave the same
judgment. The High Court confirmed the order passed before. The
learned counsel appearing on behalf of the criminals applied for a review
petition in Supreme Court under Article 137. Such a review petition can
be filed in Supreme Court when either of the parties is aggrieved by an
order passed by the court due to some error of facts of the case. In the
review petition, the petitioner tried to raise a defence that the offenders
were absent in the place and there lies no link between the crime and the
offenders. But the documents and proofs submitted by the state made the
court reject this petition. The counsel then moved to Curative Petition.
The concept of raising a curative petition is for requesting any relief for
the aggrieved person even after the final judgment has been passed. But
the Supreme Court considering the welfare of the nation, to stop such
crime in the future and to stop the flow of judiciary through a wrong
path of injustice while administering such cases in the future, rejected
the plea. The final move made by them was the Mercy Petition. A mercy
petition can be filed before the President of India. The president has the
power to reprieve, respite or remit a punishment given by the Apex
Court but such a decision requires consultation with the Council of
Ministers. The President in view of the welfare of the nation upheld the
death sentence given by the Supreme Court. The Nirbhaya gang rape
was definitely the spark that ignited the fire for women’s rights and
women’s safety. But sadly, the fire was short lived. The public outrage
died in a few months, and with it, women’s issues took their usual place
in the daily agenda. In early 2016, a dalit girl was brutally gangraped in
the Ernakulam district of Kerala. The rape was as brutal as the Nirbhaya
gang rape case. But the social outrage about the incident was
disproportionate to that of the Nirbhaya case, and as some argue,
disproportionate to the crime.
This raises the question, whether the fact that Nirbhaya was a Delhi
based upper caste girl as opposed to a poor law student from Ernakulam,
Kerala, had some role to play in the difference in the social reaction. It
could probably just be luck and insufficient media presence in that
district, but the contrast is uncanny. The idea that a difference in location
can make so much difference in media coverage for such issues is
disturbing. This raises the question whether there are other unreported
incidents.
This incidence shows the death of humanity. It was one of the most cruel
rape case one has ever come across. The society mostly blames the
women for being raped pointing out their dressing, their hangouts and
the timings at which they are out but the fact being a girl never invites a
man to rape her it is always the sick mentality of those men who
consider women as an object to be exact as a non-living object who are
meant to face any level of cruelty. In today’s society every single parent
teaches their daughters to live a limited and restricted life with certain
boundaries for every act they perform but not a single parent teaches
their son to respect every single women be it in their family or someone
from outside. Those men with sick mentalities should be restricted not
the women who suffer without any fault of theirs.
The Indian Judicial System takes a lot of time in granting justice which
serves as a slow poison for the victim and their families who are
struggling every single day fighting for justice. The trial should be quick
and the punishment should be heinous enough as the criminal act is so
that it is a teaching for the society that the brutal act can cause them a
lot.
JUDGEMENT
A three judge bench agreed that the act done by the accused did not
deserve any sympathy. In a strong message, that the diabolic crime had
shocked the collective conscience of the society and that the court can
treat it as a rarest of rare cases where death sentences can be awarded.
DNA identification, fingertips, witness testimonies and odontology
proved the presence of the accused in the bus and their involvement in
the crime, as said by the Supreme Court.
The casual manner with which she was treated and the devilish manner
in which they played with her body, her identity and her identity and her
dignity is humanly unthinkable – said the bench. The Supreme Court
administered justice to the family of the victim and all the women in the
country by confirming the punishment of death sentence to the four
convicts in the Nirbhaya gang rape and murder case terming it as the
rarest of rape most brutal and barbaric attack on a 23 year old
paramedic student, Jyoti Singh. The convicts treated the victim as an
object of enjoyment and exploited her sexually to the worst level.
A three – judge bench, through a unanimous verdict, upheld the Delhi
High Court Judgment that had concurred with trial court decision of the
case. Mukesh (29), Pawan (22), Vinay Sharma (23) and Akshay Kumar
Singh (31) were hanged till death for the brutality they had shown
against a woman of the country. The bench awarded them the death
sentence because their crime met ‘rarest-of-rare’ threshold. After the
incident, the fifth accused was not tried and he was sent to a correction
home for three years because he was a minor at that time.
CONCLUSION
Even after such a landmark judgment and punishment, India still
witnesses many noticed and unnoticed rape cases, such as the Shakthi
Mili Gang Rape which took place in 2013, the Hyderabad Rape
Case took place in the year 2019, etc. All these incidents are not just a
violation of human rights but far from that where the victim’s
sustainability becomes a big question mark. Though India made its
presence in modern society by updating various laws and creating
awareness about gender equality which is present in the Indian
Constitution, the sudden action and delay in judgment caused India to
stand back in controlling such crimes because ‘justice delayed is justice
denied’. But in the case of Nirbhaya, the justice is not denied though it is
delayed. However, such a delay paves way for other serious crimes
Submitted by
Treesa babichan
