With the Delhi police now evoking Section 302 of the Indian Penal Code (murder) in the Delhi gangrape, legal experts feel that a death penalty can be sought for the six accused. But, the prosecution has a big role to play. The facts and circumstances ought to be presented in such a manner that the accused not only are sent to the gallows, but the case also sets a precedent, they feel.
The Delhi police has assured that it would fast track this case and a chargesheet will be filed as early as January. Sources in the police force told rediff.com that the statements of the victim and her male friend, who was on the bus on that fateful night, would form a large part of the evidence. They are also looking to elicit a confessional statement from the accused and make it a part of the chargesheet.
Legal experts say that the two judgments that prosecution should keep in mind are the Dhananjoy Chatterjee case and the Bachan Singh vs the state of Punjab case, which deal with death penalty.
The Dhananjoy Chatterjee case:
Dhananjoy Chatterjee was a security guard, who was executed by hanging for the murder following a rape of 14-year-old Hetal on March 5, 1990 at her apartment residence in Bhowanipur.
In the Dhananjoy Chatterjee case, the court had made some very interesting observations pertaining to rape and murder, which will be applicable to the Delhi gangrape case.
The court had said, "In recent years, the rising crime rate, particularly violent crime against women, has made the criminal sentencing by the courts a subject of concern. Today, there are admitted disparities. Some criminals get very harsh sentences while many receive a grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence, which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration."
"The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering imposition of appropriate punishment," it had said.
"The offence was not only inhuman and barbaric but it was a totally ruthless crime of rape followed by cold-blooded murder and an affront to the human dignity of the society. The savage nature of the crime has shocked our judicial conscience. We agree that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a cold blooded preplanned brutal murder, without any provocation, after committing rape on an innocent certainly makes this case a "rarest of the rare" cases which calls for no punishment other than the capital punishment," the court had said.
The Bachan Singh case:
Bachan Singh was tried and sentenced to death by the Ferozepur sessions court in 1979 for the murders of Desa Singh, Durga Bai and Veeran Bai. The same was confirmed by the high court as well.
Bachan Singh then appealed to the Supreme Court. The question raised in the appeal was, whether the facts found by the courts would be special reasons for awarding, the death sentence. The court in this case dealt with the use of death penalty.
In this case the court said that it must administer shock therapy to such anti-social 'piety', when the manifestation is in terms of inhuman and criminal violence.
When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social justice has many facets and judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants.
According to Sir James Fitz James Stephen, the jurist, who was part of the drafting panel of the Indian Penal Code, "No other punishment deters men so effectually from committing crimes as the punishment of death."
Article 21 of the Constitution clearly states that the founding fathers of the IPC recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.