The fate of four convicts in the December 16 gang-rape case hangs in balance as they await ‘order on sentence’ from a city court that will decide on Wednesday whether to give them life imprisonment or send them to the gallows.
Mukesh Singh, Vinay Sharma, Akshay Thakur and Pawan Gupta have been convicted of several offences ranging from rape and murder to kidnapping and unnatural sex. But it’s their conviction under Section 302 of the Indian Penal Code (IPC) for murder that can attract capital punishment.
The murder charge was slapped against the accused after the victim died on December 29 in a Singapore hospital due to the injuries inflicted during the crime.
While accused Ram Singh allegedly committed suicide in Tihar Jail during the trial, a juvenile accused was convicted of rape and murder and sent to a reform home for three years.
Generally, courts in India award life imprisonment to accused convicted of murder. However, in “rarest of rare” cases, murder convicts are given death penalty.
Death sentence is imposed only when the court comes to the conclusion that life imprisonment is inadequate with regard to the facts and circumstances of the case.
Section 354(3) of the Criminal Procedure Code (CrPC) mandates the court to give special reasons for sentencing a convict to death. Capital punishment can be awarded only in gravest cases of extreme culpability, and after taking the condition of the convict in account.
Already dissatisfied with the juvenile convict being given a ‘sentence’ of three years in a reformatory -- maximum that can be given to a minor under the law, the braveheart’s family has demanded death penalty for all the four convicts. Home minister Sushilkumar Shinde and Leader of Opposition in the Lok Sabha Sushma Swaraj have also demanded death sentence for them.
Given the extreme brutality committed by the convicts on the 23-year-old woman in a moving bus on December 16, 2012, the court can conclude that the case falls within the category of “rarest of rare” and award them death sentence.
Protests after the gang-rape forced Parliament to pass tougher laws in March which give death penalty to rapists if victims die or are left in a vegetative state. It also punishes repeat rape offenders with death.
But before special judge Yogesh Khanna pronounces his order on sentence, he has to hear lengthy arguments from advocates representing the four convicts as also special prosecutor Dayan Krishnan.
Dhananjoy Chatterjee, convicted of rape and murder of a minor girl in Kolkata, was hanged in August 2004 after the then President APJ Abdul Kalam rejected his mercy plea. Will the convicts of December 16 gang-rape and murder also meet the same fate?
What is 'rarest of rare'?
There is no statutory definition of "rarest of rare". It depends upon facts and circumstances of a particular case, brutality of the crime, conduct of the offender, previous history of his involvement in crime, chances of reforming and integrating him into the society etc.
What is the test for 'rarest of rare'?
The generally applied test while sentencing a convict to death is whether the survival of an orderly society demands extinction of life of the person, who has committed the murder and whether failure to impose death sentence on him would bring to naught the sentence of death provided under Section 302 of IPC.
Pre-planned, heart-less, brutal, cold-blooded and sordid nature of the crime, without giving any chance to the victim are generally taken into account to decide whether a particular case falls within the parameters of "rarest of rare".
What does the Supreme Court say?
"Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of otherwise of retaining death penalty," said the Supreme Court in Bachchan Singh Vs. State of Punjab.
The crime has to be viewed from various angles--manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of crime and magnitude and personality of victim of murder.