Mukesh
V State (Nct Of Delhi) Nirbhaya Case
In
the Supreme Court of India
|
Name of the case |
Mukesh v State (Nct of Delhi) Nirbhaya
case. |
|
Citation |
(2017) 6 Supreme
Court Cases 1: (2017) 2 Supreme Court Cases (Cri) 673: 2017 SCC Online SC 533 |
|
Date of Judgement |
5th May, 2017 |
|
Appellant |
Mukesh and another |
|
Respondent |
State of Chattisgarh |
|
Bench/
Judge |
Before Dipak Misra, R. Banumathi
and Ashok Bhushan. |
INTRODUCTION
In
this world, rape is one of the most serious crime all over the world take
place. And rape is unlawful sexual activity and sexual intercourse carried out
forcibly or under threat of injury against the will of a female or with a
person who does not give the consent. India is one among such nation which
grants the time and opportunity to the accused to prove his innocence. Rape is
mentioned under section 375 of IPC, defines rape as “sexual intercourse with a
woman against her will, without her consent, by coercion, misrepresentation, or
fraud or at a time when she has been intoxicated or duped, or is of unsound
mental health and in any case, if she is under 18 years of age”.
A
remarkable incident was the case of Mukesh & Anr v state for NCT of Delhi
& Orspopulary known as the NIRBHAYA CASE. The Indian rape laws do not allow using the
victim’s name in the mediathus such a term was given to the case, wherein
‘Nirbhaya’ means fearless.This case that lasted for 5 long years from
2012 to 2017. It took 5 years to do justice to that girl.
MEANING
OF RAPE
Rape
means an unlawful sexual activity involving sexual intercourse against the will
of the victim through force or the threat of force or the threat of force or
with an individual who is incapable of giving legal consent because of minor
status, mental illness, mental deficiency, intoxication, unconsciousness or
deception.
As rape is now understood, a rapist or a victim may be an
adult of either gender or a child. Although rape can occur in same-sex intercourse, it is most often committed by a male
against a female. There is also an increasing tendency to treat as rape an act
of sexual intercourse by a husband with his wife against her will and to
consider forced prostitution and sexual slavery as forms of rape.
The section 375 of IPC tells us about rape and what actions,
if done by a man can make him liable for punishment under 376 of IPC.In India
28,046 rape cases, 3,71,503 crimes against women. Nearly 77 rape cases were
reported across India on average day in 2020. Totalling 28,046 such incidents
during the year.
It's Rape If It Falls Under Following Categories
·
Against her
will
·
Without her
consent.
·
With her
consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
·
With her
consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
·
With her
consent, when, at the time of giving such consent, because of unsoundness of
mind or intoxication or the administration by him personally or through another
of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
·
With or
without her consent, when she is under sixteen years of age.
Explanation:
Penetration is sufficient to constitute the sexual intercourse necessary to the
offense of rape.
The Criminal Law (Amendment) Act, 1983, besides substituting Sections 375 and
376 for the old sections, have added Sections 376- A to 376-D.
FACTS
BACKGROUND
OF THE CASE
Now, let us know
the facts of the case, On 16th December, 2012it was a black and cold
evening for all over the world. A girl twenty-three year old, a paramedical
student who has gone with her friend to watch a movie at PVR City Mall at Delhi.
While they were returning from movie and were waiting for a transport at
transport bus-stand. The bus had 6 men, including the driver, Ram Singh,
Mukesh, Vinay Sharma, Pawan Gupta, Akshay Thakur and a juvenile.
Nirbhaya
a word that means fearless a word that stirs up emotion, anger, guilt and
collective shame like no other. Firstly, a couple of men started commenting on Nirbhaya and him
and started passing obscene taunts. Then one man started assaulting Nirbhaya,
in defenseof him hit that man. In return, all 6 men knocked down Nirbhaya with
an iron rod and tore off his clothes; the nature of the crime was very brutal,
barbaric, and diabolic, and robbed them of their personal belongings like debit
cards, rings, men shoes, etc.
Now, they attacked Nirbhaya by forcibly
disrobing her and committing violent sexual assault by all the appellants.their
brutish behaviour is having anal sex and forcing her to perform oral sex. the
injuries on the body by way of bites on her face, lips, jaws, near ears, on the
right and left breast. they didn’t stop here they inset rod in her private
parts that, inter alia caused break of her intestine which caused life threatening
illness and ultimately led to her death.
Mukesh is the
only convict in the Nirbhaya gangrape-murder case who had confessed to the
crime in the trial court, but he retracted it later in the Delhi High Court.The
countdown for the hanging of four death-row convicts of Nirbhaya case has begun
with the session court’s death warrant directing Tihar Jail to hang them on 20th
march at 6 am.All the four convicts maintain that they are innocent and have
been falsely implicated in the case.However, strong circumstantial evidence and
Nirbhaya’s boyfriend's account, who was the sole eye-witness in the case,
established their involvement in the gang-rape and murder. All the three courts
found these evidences beyond reasonable doubt.
As further, at the black and cold night they threw her
and her friend on the road.
And after throwing out them, the convicts tried to runthe
bus over them so that there would be no evidence against them. And the convicts
made all possible efforts in destroying the evidence. And after that washing the
bus and burning the clothes of the victim and the convicts thinking that they
were no more alive. They were lying naked as the clothes were removed from
their bodies. The victims shouted for help and thenight patrolling vehicle, a
motor cycle, arrived and one stranger man gave the shirt to that boy and
contacted the control room.
And later on, they brought a bedsheet and tore it into
two parts and gave a piece to each of the victims so that they could cover
themselves and feel civil. And they took the victim to Safdarjung hospital
where treatment commenced.
The trial court convicted all the accused persons, are
given under section 120-B , 365, 366, 376(2) (g), 377, 201,395,397,412 of IPC.
As the death penalty was imposed, then this matter
referred to the high court, judgement dated on 13th march, 2014. And
confirmed the death sentence and dismissed the appeals, the supreme court.
ISSUE RAISED BEFORE THE COURT
1) Clean history and a chance to reform
2) The young age of the convicts
3) They are only convicted on the grounds of
conspiracy and not because of their respective acts.
4) Mukesh and Pawan were intoxicated at the time
of the event and also that Mukesh was accused of driving the bus all the way.
PETITIONER ARGUMENTS
1) Firstly, as the case was made very strong
from its trial from the level of the subordinate court.
2) The appeal made by the respondent against the
judgement of the subordinate court also gave the same judgement, the high court
confirmed the order passed before.
REVIEW PETITION
The counsel appearing on behalf of the criminals applied
for a review petition in the supreme court under Article 137 and such a review
petition can be filed in a supreme court when either of the parties is aggrieved
by an order passed by the court due to some facts of the case.
In the review petition, the petitioner tried to raise a defense 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.
CURATIVE PETITION
The
word curative petition was evolved by the Supreme court of India and it was
related to whether an aggrieved person is entitled to any relief against the
final judgement of the supreme court and after the dismissal of a review
petition.In the Nirbhaya case, the Supreme
Court of India rejected their pleas.
MERCY
PETITION
Mercy petition
is the last step which one can take in the Indian Judicial system. When a
person lost all the remedies available to him or her under all the laws then he
files a mercy petition before the president of India or the Governor of the
State in the state where the person resides.
Under the
article 72 of the Indian Constitution, the president has the power to reprieve,
remit a punishment pronounced by the apex court of law.He is also entitled
to grant pardon but the power is not discretionary as it requires the
consultancy of the Council of Ministers.The President upheld the death sentence
given by the Supreme Court to the remaining four culprits in the Nirbhaya case.
SOME
RELATED PROVISIONS
·
The Criminal Amendment
Act,2013 is also popularly referred to as the “Anti-rape Act”.
·
Under this change, new
offences such as stalking, acid attacks, and voyeurism were added into the
definition of rape and provisions mentioned in the Indian Penal Code, 1860.
·
Even the threat of rape is
now a crime and the person will be punished for the same.
·
The minimum sentence was
changed from seven years to ten years considering the increase in the number of
rape cases.
·
In cases that led to the death
of the victim or the victim being in a vegetative state, the minimum sentence
was increased to 20 years.
·
The ‘character of the
victim’ was totally irrelevant to rape cases and it doesn’t make any difference
in granting punishment for the crime.
·
Since one of the accused
in this case was a juvenile, another flaw in the system was identified after
this case. So, the age for being tried as an adult for violent crimes like rape
was changed from 18 to 16 years, that to the Juvenile Justice Act, 2015.
AMENDMENTS IN THE INDIAN PENAL CODE, 1860
·
Amendment in a Section
166A which covers the offence of Disobedience of law by a public servant. After
the amendment Act, it is made punishable with rigorous imprisonment for 6
months to 2 years and liable to fine.
·
Amendment in a Section
326A and B which cover the issue of Acid attack. The amendment
Act has made it a Specific Offence under the act, punishable with 10 years
Imprisonment extendable to life imprisonment or fine or both.
·
Amendmentin a section 354Awhich
deals with Sexual harassment and punishment for the same.
·
Amendment in a section 354Bwhich
covers the offence of compelling a woman to remove her clothes.
·
Amendment in a section
354C which covers the offence of Voyeurism i.e. watching a woman when she is engaged
in some private act including sexual acts or when her private parts are
exposed.
·
Amended in a section
354D which covers the offence of stalking.
·
The Age of consent has
been amended from sixteen years to eighteen years.
·
The definition of rape has
been widened after the Nirbhaya Case.
·
The Amendment Act has
included more actions under the purview of what constitutes rape such as
unconsented penetration of mouth, urethra, vagina, anus with the penis or other
objects by anyone and unconsented application of mouth to vagina, urethra and
anus.
·
Insertion of section 376
(2) (c) which covers the offence of Rape by personnel of armed forces.
·
Insertion of section
376A which deals with the Rape resulting in death or vegetative
state.
·
Amended in a section 376D which
deals with the crime of Gang rape.
·
Repetition of offences is
punishable with life imprisonment or death.
·
Employment of a trafficked
person can also attract penal provision as well.
·
It has also been clarified
that penetration means “penetration to any extent”, and lack of physical
resistance or any sort of other resistances is immaterial for constituting the
offence of rape.
JUDGEMENT
A bench comprising the Chief Justice Dipak Misra, Justice R
Banumathi, and Justice Ashok Bhushan delivered the judgment in the landmark
case of Nirbhaya, where the remaining 4 criminals among the 6 were awarded the
death sentence.
The convicts were Mukesh, Pawan Gupta, Vinay Sharma, and Akshay
Kumar Singh who were awarded the death sentence, and the minor was convicted by
the Juvenile Justice Board and was sent to a reformation home for 3 years. The
remaining accused among the 6 was Ram Singh. He committed suicide in jail
before conviction.
Though it was contended that the case does not fall under the
rarest of rare cases, the court rejected such contention, and awarded the death
sentence, because generally a death sentence is awarded only in the rarest of
rare cases and not for all crimes. The 4 criminals were hanged at Tihar Jail on
20 March 2020 at 5:30 am which was welcomed by the citizens even at the time of
the pandemic situation.
CONCLUSION
Even after such a landmark judgment and punishment, India still
witnesses many noticed and unnoticed rape cases, such as the Shakthi
Mill Gang Rapecase which took place in 2013, and the Hyderabad
Gang 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, justice is not denied though it is
delayed. However, such a delay paves way for other serious crimes
 Nirbhaya Case){kind=link}
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