How the Delhi gang rapists could get away with murder

Published: Dec 30, 2012, 11:32 IST | Samarth Moray and Vinod Kumar Menon |

Debate rages between experts over whether the rapists, now murderers, will get the death sentence, or escape with a sentence less than life imprisonment

The battle for her life is lost, but the war to get the rapists sentenced to death is won. Their victim is dead, and the rapists are responsible. Or so it would seem. Lawyers think the rapists will never have to face the gallows, thanks to legal peculiarities — making the rape victim’s death a Pyrrhic victory in every sense.

Public outcry: An activist carries a placard at India Gate during a protest following the gang rape of the 23-year-old girl in the Capital. Pic/AFP

Borderline case
“Invoking section 302 (murder) will only have mass appeal but no legal value,” said senior advocate Adhik Shirodkar. He added that proving criminal intent would be challenging for the prosecution. “On moral ground I would prefer to hang the rapists by their toes and let them die, but there is a vast difference between morality and legality,” he said. However, advocate Rohini Salian begged to differ and said, “Their act of throwing the victim from a running bus along with her male friend, is clearly indicative that they wanted to get rid of her and that it would result in her death. This is nothing but animalism and they should be tried under section 302.”

Criminal lawyer Ashish Chavan concurred with Shirodkar’s view. He said, “Without the taint of sensationalism, it must be understood that the essential ingredient of 302 (murder) is intent. From their actions, it does not appear that the rapists intended to kill their victim, unlike a case where, for instance, a victim is murdered to destroy the evidence. This case falls in a borderline area. At most, the rapists can be held guilty of culpable homicide not amounting to murder, which is akin to the term ‘manslaughter’ in the American system.” If convicted of culpable homicide not amounting to murder, the maximum possible sentence is life imprisonment, and not death.

The offence of gang rape, too, carries a maximum life sentence. Even in the laughably unlikely event that the Indian Penal Code is amended to incorporate the death penalty for gang rape, the Indian Constitution protects its rapists with an ironclad provision: Article 20(1) states that no person can be subjected to any punishment greater than that which might have been inflicted for violation of the law in force at the time of the commission of the offence. However, other circumstances may dent the prosecution case and therefore reduce the sentence even further.

A tale of two statements
Chief among them is the controversy that is likely to arise at the stage of trial from the two different statements recorded. The first Sub-Divisional Magistrate to record the girl’s statement alleged that three police officers tried to dissuade the victim’s mother from recording it on camera. Police countered by saying it was the mother who did not want the statement videotaped. After the allegations came to light, the victim’s statement was re-recorded by a different magistrate, also without video. There is however nothing to suggest that the contents of the statement themselves
were affected.

Added Chavan, “If there is any material discrepancy in the two statements, for instance, with regard to the positions of each rapist, the manner of the attack, or the time or chronology of the assault, the defence can claim to be entitled to the benefit of that discrepancy.”

Tragic mistreatment
The treatment of the victim under her doctors could also be a factor. Reportedly, the decision to shift the girl to Singapore was political, and a new team of doctors was charged with her treatment. The first team of doctors to treat the girl had recommended transplants could only be carried on her six months to a year later, raising questions on the decision to fly the girl to Singapore less than two weeks after the attack.

Advocate Ganesh Gole said, “If her death has been caused owing to the negligence of the doctors treating her, then the doctors would be liable for her death under Section 304A. The rapists would be guilty of gang rape, and not for her death.”

‘Delhi police did the right thing’
However, former city police commissioner M N Singh, said that the Delhi cops have taken the right step in levying section 302. He said, “The murder section is usually applicable on two grounds — the assailant intended to kill and that the assailant had knowledge that his assault was so dangerous that it would lead to death. In this case, there has been a brutal attack, though initially the intention may be to rape but after committing the act the accused became revengeful, as they used a great degree of violence.” He added, “The Delhi police have done the right thing by levying section 302. The police should merely follow the provisions of law and should not become prosecutor or judge. In my opinion even the court would frame the charges under section 302.”

Senior criminal lawyer Majeed Memon felt that this was an open and shut case. He explained, “There does not seem to be any doubt in the facts and circumstances of this case, with regards to the applicability of section 302 of IPC against the rapist offenders. The whole nation knows that this is an open and shut case, only subject to the fixing identity of the accused persons as the offenders. This in my view would even fall in the category of rarest-of-rare case once the guilt against the accused is established. In view of the nationwide outcry, this has become a challenging case for the prosecuting state. It is expected more so in view of the Union Home Minister’s statement, that the conviction should come not later than March 31, 2013. If at all we need to sustain and restore the confidence of the people of the country, in our laws and our criminal justice systems, this would be an acid test.”

Reiterating the same point, former IPS officer-turned-lawyer Y P Singh said, “Under the definition of murder in section 299 of IPC, ‘if such bodily injury is made which is likely to cause death, it would amount to culpable homicide amounting to murder under section 302.’ Insertion of a rod, rupturing the small intestine is as good as stabbing and the charge of murder will be sustained, so the police are right by adding section 302.

There is every likelihood that except the driver and the juvenile all others involved in the heinous crime will get the death penalty, as the driver probably did not participate in the act. The juvenile can be given a maximum term of three years in the remand home and then he will be free.” 

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