Important Judgment of Reported Today on Life Sentence to Repeated Rape Offender (3rd June, 2019) Amaresh Patel LANDMARK JUDGMENT Tue, Jun 04, 2019, at ,07:25 AM Title of the Case – Life Sentence to Repeated Rape Offender Name of the case – Mohd. Salim Mohd. Kudus Ansari v. State of Maharashtra, W.P. No. 1181 of 2014 Date of Judgment – 03rd June, 2019 Judges: Justice Revati Mohite Dere and Justice B.P. Dharmadhikari Subject and sections involved – Section 376-E IPC. Issue: Whether Section 376-E inserted in the Indian Penal Code (IPC) by the Criminal Law (Amendment) Act of 2013 is constitutionally valid? Fact of the Case: Mohd. Salim (Petitioner) tried for the offence punishable u/s 376 in two cases. Both the cases were tried simultaneously and on 20th March 2014, the order of conviction was pronounced in both the cases. Session Court based on section 376-E IPC awarded life sentence to the accused. The Petitioner Mohd. Salim Mohd. Kudus Ansari and Mohd. Kasim Mohd Hasim Shaikh filed two writ petition, challenging the constitutional validity of Section 376-E of IPC and for striking down the sentenced passed onto them. Ratio of the case - The division bench of Bombay High Court in response to the writ petition challenging constitutional validity of Section 376-E IPC observes that Section 376-E does not foreclose an alternative sentence and does not, in anyway, make death mandatory. The sentence prescribed for repeat offence under Section 376-E is either, imprisonment for life which means for the remainder of one's life or with death. The punishments stipulated for the offences listed in Section 376-E. The offence under Section 376 is punishable with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and also with fine. The punishment prescribed under Section 376-A, for causing death or persistent vegetative state of the victim is, rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death. The punishment under Section 376-D for gang rape is, rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life, which means, imprisonment for the remainder of that person’s natural life, and with fine. The enhanced punishment prescribed under Section 376-E for repeat offence is imprisonment for remainder of one's life or death, the object being to send a strong signal to the accused persons not to indulge in the offence of rape. Repeat rape is to be viewed more seriously and therefore, a more stringent punishment is prescribed. This logic needs to be seen in Section 376-E. It is obvious, that the Parliament was aware of the needs of the society and the legal fetters, which did not permit it to provide “death”, as the only apt punishment for the second proved offence, after the first conviction. In 2018, this intention of the Parliament became more explicit, when it added Sections 376-AB and 376-DB to the IPC and provided stringent punishment for the first offence itself i.e. a minimum of twenty years imprisonment, which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's life and with fine or with death. Constitutional Powers Of Remission The Parliament, while making its desire clear also did not encroach on the Court's power and discretion, and left the field of punishment open for the Court, to choose a “just” punishment. It has, therefore, kept the choice in the area, between life imprisonment for rest of one's natural life or death, open for the Court to select and to formulate the most deserving punishment, in the facts of the case. It has, therefore, not made death mandatory under Section 376-E and has left the scope for its application on various factors, having a bearing on “death penalty”. Choice left open by Section 376-E itself attracts the judicial discretion and all principles governing the award of the death penalty as per Section 354(3) Cr.P.C. Procedure Exists for Implementation Of Section 376-E Neither, the Union of India nor the State accept that death is mandatory under Section 376-E IPC. Thus the court held that we have found that Section 376-E IPC neither introduces a discordant note nor introduces any new paradigm in the criminal justice administration. Legislative developments reveal that it only adds to the efforts being made by the nation to infuse deterrence in the wrong elements and to caution them of serious consequences which may ensue if they continue to tread on the same road. Attempt is to strengthen the law. Convicts loose their liberty under Article 21 to a certain extent and one who has committed a heinous offence of rape or has repeated it, cannot be allowed to put his life before the lifelong plight of the survivor. Needless to state, that in cases where Section 376-E is applied, the accused would be entitled to all the procedural safeguards, which already exist in the Cr.P.C. Thus, there is no vagueness and confusion inasmuch as, there exists a procedure which is just, reasonable and fair to deal with the implementation of Section 376-E.