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Critical Study on the Nirbhaya Case

Rape; the word itself holds too much negative power to send horrible chills down the spine of every individual. It is such a disturbingly vile, unpleasant act committed by petty and wretched lice of humans.

Section 375 of Indian Penal Code, 1860, states, a man is said to commit "rape" if he:
  1. penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
  2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
  3. manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any ~ of the body of such woman or makes her do so with him or any other person; or
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
    1. Against her will
    2. Without her consent
    3. 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
    4. 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
    5. 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
    6. With or without her consent, when she is under eighteen years of age
    7. When she is unable to communicate consent

Section 376 of Indian Penal Code, 1860, states, whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

Section 376A of Indian Penal Code, 1860, states, whoever commits an offense punishable under sub-section (l) or subsection (2) of section 376 and in the course of such commission inflicts an injury that causes the death of the woman or causes the woman to be in a persistent vegetative state shall be punished with 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.

Section 376B of Indian Penal Code, 1860, states, whoever has sexual intercourse with his wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

Section 376C of Indian Penal Code, 1860, states, whoever, being:
  1. in a position of authority or a fiduciary relationship; or
  2. a public servant; or
  3. superintendent or manager of a jail, remand home, or another place of custody established by or under any law for the time being in force, or a women's or children's institution; or
  4. on the management of a hospital or being on the staff of hospital abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offense of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 6 years, but which may extend to ten years, and shall also be liable to fine.
Section 376D of Indian Penal Code, 1860, state, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offense of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine.

Sections 376E of Indian Penal Code, 1860, states, whoever has been previously convicted of an offense punishable under section 376 or section 376A or section 3760 and is subsequently convicted of an offense punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.

Facts
The act of rape was committed by 6 men in a running bus in Delhi on the night of 16 December 2012. The original name of the victim is unpublished and mentioned as Nirbhaya at all times. Nirbhaya a 23-year-old woman with his friend was waiting at a bus stop. She was convinced and made to enter the empty bus. The driver, along with 5 other members including a minor of age 17 engaged in the animal act of forceful sexual assault.

The friend who tried to protect Nirbhaya from such forceful acts was beaten up by those 6 members. Nirbhaya was brutally raped and suffered various other harsh injuries. She was later admitted to the hospital for treatment but couldn’t survive. She had witnessed physical and mental instability, multiple organ failure, internal bleeding, cardiac arrest, and various other troubles.

Issue
Whether the accused were liable under the following sections of the Indian Penal code, 1860:
  1. Section 375
  2. Section 376
  3. Section 376A
  4. Section 376D

Procedural History
On December 17, 2012, people took to the streets for widespread protests against stringent actions to be taken against the accused. Police identified the 4 of them. Later on, December 18, the four accused were arrested. After the testification by the victim’s friend, the delinquent juvenile was nabbed from Anand Bihar bus terminal, Delhi. The last accused was arrested in the Aurangabad district of Bihar and was brought to Delhi. The victim gave all the statements and then met the hands of death on December 29.

The then CJI, Justice Altamas Kabir inaugurated the fast-track court (FTC) for the speedy redressal of sexual offenses. Police filed a charge sheet against the five accused of murder, gang rape, attempt to murder, kidnapping, dacoity and, unnatural offenses. The court takes cognizance of the charge sheet and the FTC starts the proceedings against the five accused adults. Juvenile Justice Board (JJB) confirms the minority of the sixth accused.

Charges against the five adult accused were framed by FTC and by the JJB against the minor. Ram Singh, one of the accused, commits suicide in Tihar Jail. FTC completes the recording of the testimonies of the prosecution witnesses and then begins the final hearing in the trial against the four-adult accused. Meanwhile, JJB holds the minor guilty for the charges as well. Court convicts the four-adult accused of 13 offenses and later awards the death penalty to each one of them. From March 13, 2014, to March 19, 2020, various petitions and pleas were filled by all the four-adult accused as well as by the minor. All of them were rejected and not entertained by the Court.

Analysis:
  1. The learned counsel on behalf of the respondents applied for a Review Petition in the Supreme Court under Article 137. 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 when there is some error of facts of the case
  2. The petitioner, the State convicted the 6 men who were involved in such a demoniac activity. The respondents argued implying that there was no similarity between the activities that took place and the 6 people. The learned counsel tried to prove the presence of the 6 men in some other place, but due to the witnesses and other supporting pieces of evidence such as DNA test, blood traces, the petitioner was able to prove his arguments.
  3. The counsel from the respondent’s side then moved for a Curative Petition, for requesting any relief for the aggrieved individual even after the final judgment has been passed. The Supreme Court for the greater good rejected the plea.
  4. Finally, respondents took the last resort of moving the Mercy Petition. A Mercy Petition is filed before the President of India. The President has the power to either reprieve, respite, or remit a punishment given by the Apex Court, but such a decision requires a just and fair consultation with the Council of Ministers. The President upheld the death sentence given by the Supreme Court.
  5. The Criminal Amendment Act 2013 was amended majorly which widened the scope of rape as mentioned under Section 375 and inserted Sections 354A, 354B, 354C, and 354D.
  6. The definition of rape which was only restricted to sexual intercourse expanded to include any involuntary and forceful penetration without the woman’s consent into the woman’s body parts.
  7. Justice Verma Committee Report – the committee was majorly concerned about the sexual assault that takes place all over the country against women.

    The committee was formed to make sure of a speedy trial and redressal and to provide punishment to the accused of the Nirbhaya. Following changes were put forth:
    • The report suggested the widening of the scope of the definition of rape under the Indian Penal Code
    • It recommended laws for marital rape.
    • Recommended special laws for women harassment in the workplace (Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012).
    • Suggested a system for online FIR filing.
    • Made ways for the police to deal with offenses related to rape irrespective of jurisdiction.

A three-judge bench came to a unanimous decision that the accused don’t deserve any sympathy and protection by law. This gruesomely heinous crime shook the entire nation’s conscience. A three-judge bench, through a unanimous verdict, upheld the Delhi High Court judgment that had concurred with the trial court decision of the case and awarded them the death penalty, stating that the criminal act suffices the provisions of, and falls under the cases of “rarest-of-rare”.

Conclusion
Justice should not take more than half a decade to be attained. The criminals stooping to the levels of vermin-filth shouldn’t be given any leverage to protect themselves. The verdict of the Nirbhaya case, giving a death sentence to the accused which was done to set a precedent, an example in the minds of the public to prohibit indulging in these cruelly odious crimes has failed. Corrupt minds have been raping without getting caught by the law.

There is an uncountable number of rape cases that have been piling up in the courts. Laws and regulations that are in play today need to be made more stringent and heavily backed by sanctions. Outraging modesty and making a person fall to the condition of death should not be blind-sighted by ignorance. 

References:
  • Indian Penal Code, 1860
  • https://www.indiatoday.in/india/story/nirbhaya-case-hearing-live-updates-delhi-high-court-on-hanging-of-convicts-1642573-2020-02-02
  • https://www.businesstoday.in/current/economy-politics/nirbhaya-case-sc-junks-accused-vinay-sharma-plea-dismisses-mentally-ill-argument/story/396200.html
  • https://www.thehindu.com/news/national/nirbhaya-case-centre-delhi-government-move-supreme-court-against-high-court-verdict-on-hanging-of-convicts/article30742638.ece
  • https://www.thehindubusinessline.com/news/chronology-of-nirbhaya-case/article31114897.ece#:~:text=Following%20is%20the%20chronology%20of,along%20with%20her%20male%20friend.
  • https://blog.ipleaders.in/nirbhaya-gang-rape-case-study/
Written By: Tanisha

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