It certainly merits no reiteration that for heinous offences like gang rape there has to be zero tolerance and those who dare to still indulge in it must be punished most strictly so that no one ever dares to ever even think of indulging in it! Our laws also must be amended suitably and there must be mandatory death penalty for gang rape and that too of minor. There should be no leniency of any kind on this score!

Needless to say, this alone explains why the Madhya Pradesh High Court too just quite recently on September 9, 2021 in a commendable, cogent, composed, clear and convincing judgment titled State of MP v/s Irfan & Anr in CRRFC.No.14/2018 & CRA.Nos.7215/2018 and 7269/2018 has upheld the death sentence awarded to two men accused of gang rape of an eight year old girl. It must be apprised here that the Indore Bench of Madhya Pradesh High Court comprising of Justice Vivek Rusia and Justice Shailendra Shukla observed quite convincingly that:
The offence of gang rape in itself is a very heinous offence and to impose further condition of the victim being left in vegetative state for awarding death penalty would be asking for too much. The Court made it crystal clear that the rights of the victim cannot take a back seat while considering the rights of the accused. In this leading case, the accused named Irfan and Asif were convicted and sentenced to death by the Trial Court under Section 376DB of the IPC that was inserted by the Criminal Law (Amendment) Act, 2018.

Briefly stated, this brief, brilliant, bold and balanced judgment authored by Justice Shailendra Shukla for himself and Justice Vivek Rusia of Indore Bench of Madhya Pradesh High Court first and foremost puts forth in para 1 that:
The present reference has been made for confirmation of order of capital punishment of death awarded which is arising out of judgment dated 21.8.2018, pronounced in S.T.No.88/2018, passed by the 2nd A.S.J. Mandsaur / Special Judge (POCSO) Act whereby, the appellants/accused have been convicted under Sections 363, 366A, 376(2)(m), 376(DB) of IPC and as per Criminal Law (Amendment) Ordinance, 2018, 307 of IPC, (appellant Asif has been convicted and Section 307 read with Section 34 of IPC), as also under Section 5(g) (r) read with Section 6 of POCSO Act, 2012.

As we see, the Bench then observes in para 2 that:
The accused/appellants have filed separate appeals (Criminal Appeals Nos.7215/2015 and 7269/2018 against the said judgment therefore, the reference and appeals are being taken up for hearing together and are being disposed of by common order.

To put things in perspective, the Bench then lays bare in para 3 about the prosecution version that:
As per prosecution story, on 26.6.2018, Kamlabai (PW7), grand mother of the prosecutrix lodged a report at police station City Kotwali, Mandsaur that her grand – daughter studying in 3rd Std. at Saraswati Shishu Mandir School had been missing from her school premises after the classes were over for the day. The police registered case under Section 363 of IPC and enquiry was initiated. On the next day, ie., 27.6.2018, the prosecutrix was found in injured condition by the witness namely Karan (PW10). When police came to know, the prosecutrix was taken to civil hospital at Mandsaur and was examined. Looking to her serious condition she was referred to M.Y. Hospital at Indore. The prosecutrix was given treatment and operation was performed upon her.

She narrated the story to the police as per which it was stated by her that on the day of the incident, after the school was closed down, she was waiting outside the school when a person came and forcibly put some sweet ('Ladu') in her mouth and took her to a secluded spot. He also called another person at the spot. Subsequently, she was undressed, forcibly raped by the person who had taken her while the other person had caught hold of her hands. The police sprung into action and fanned out in search of the miscreants.

They searched the spot where the incident had taken place and collected incriminating items from there such as the underwear of the prosecutrix, rocks, a beer bottle, school bag, shoes, blood stained soil and normal soil and sealed the same and sent it to the FSL laboratory. The enquiry was also made from nearby shopkeepers and CCTV footages from 3 shops namely Mayank Fashion Store, Esequare Showroom and Aman Mobile were collected and on finding suspicious movements, the persons and relatives known to the minor prosecutrix and appellant were shown the footages who identified the prosecutrix and the appellants. Panchnamas were drawn. Subsequently TIP parade was carried in jail premises where the appellants were identified by the witnesses who had seen the appellant accompanying the prosecutrix. The prosecutrix who was admitted in serious condition in M.Y. Hospital at Indore, was also shown photo albums carrying photographs of the appellants and other persons bearing similarity in countenances and the prosecutrix rightly identified the appellants from the album as the accused persons who had committed sinister offence against her.

The specimens such as oral swab, vegenal slides, vulval pad etc of prosecutrix had been drawn at district hospital at Mandsaur. The sealed specimens were handed over to the Investigating Officer who dispatched them to FSL Laboratory and DNA analysis. The appellants who had been arrested were interrogated by police who gave their separate memoranda leading to recovery of clothes used by them at the time of incident, the vehicle used by appellant Asif were recovered by Investigating Officer. Their blood samples, semen slides, hair including pubic hair, nails etc were collected by Investigating Officer and the appellants were also subjected to medical examination. Appellant Irfan was found to have marks of scratches and teeth-bite on his body and it was also found that his private organ carried redness which was pointer at forcible intercourse on his part.

The medical examination of the prosecutrix has already been revealed that she had not only been subjected to violent sexual intercourse, but she was also subjected to very serious assault resulting in injuries to throat, stab injuries on private part and one of her eye was found to be bulging due to compression with affected visibility, the perineum and anus were found to be pierced through and through and a passage was created in her abdomen for bringing out her stools. Due to huge blood loss, her haemoglobin had also plummeted to 6.5. grms dl. After intensive care and operations, she slowly recovered. In the meanwhile, the residual investigation involving statement of witnesses was carried by the police and charge sheet was filed against the appellants.

As it turned out, the Bench then brings out in para 4 that:
The learned trial Court framed charges against the appellants under Sections 363, 366A, 376(2)(m), 307, 307/34 and Section 376(DB) of IPC under (Law Amendment Ordinance), 2018 as also under Section 5(g), 5(j)(iii)(m) and Section 5(r), read with Section 6 of POCSO Act. The appellants abjured their guilt and claimed innocence.

Be it noted, the Bench then observes in para 25 that:
In the present case, dock identification shortly after the incident enhances the credibility of the prosecutrix.

It is also worth noting that the Bench then further reveals in para 26 that, Prior to such doc identification, prosecutrix has also identified appellant Irfan when she was shown photo album marked as Article A-1. This album contained photographs of similar other persons from whom the prosecutrix had correctly identified appellant Irfan. During the Court deposition also, she was again shown the album and she correctly identified the appellant. This was done prior to her actual seeing the appellant physically in the Court. The identification memo is Ex.P/11. Although the aforesaid method of identification has been challenged by the learned counsel submitting that it is not an appropriate method as various persons shown in the album are wearing different clothes and that appellant himself had no opportunity to see the manner in which this identification has been carried out, however, looking to the serious condition of prosecutrix, the aforesaid method was one of the reasonable and appropriate method. A perusal of the evidence of prosecutrix does not show that there is any contradiction or omission in her statements regarding identification through photo album. The appellants have not been able to show that prosecutrix had been shown photographs of the appellants before the album was shown to her.

Quite significantly, the Bench then envisages in para 28 that:
The aforesaid corroborative piece of evidence has been gathered by Investigating Officer Mr. Gaurav Laad (PW.28) in the form of CCTV footages collected from various shops situated at Hazari Road at Mandsaur. This witness has stated that he had checked the CCTV footages in DVRs installed in various shops from which suspicious movements involving of prosecutrix and appellant could be traced. In the process, he found relevant CCTV footages in the shops namely; Mayank Fashion Shop, Aman Mobile Shop and ESquare Plaza. The footages found in the Mayank Fashion Shop and Aman Mobile Shop were relevant for the purpose of identifying the kidnapper and the prosecutrix.

Most significantly, the Bench then forthrightly holds in para 138 that:
Broadly speaking, in the aforesaid citations, the commutation of death sentence to life imprisonment has been allowed when the probability of reform of the accused / appellant has been not ruled out and there is absence of prior offending history. However, all these cases pertain to dates of incident prior to the date when Section 376(DB) of IPC came into force. Earlier also in the case of Purushottam Dashrat Borate (supra), a three Judge Bench of Apex Court has laid down that age, family background and lack of criminal antecedents cannot be a paramount consideration as a mitigating circumstance in such heinous offences relating to gang rape and subsequent murder of a woman. Regarding the chances of rehabilitation and reformation, the Apex Court in the aforesaid case has held that the manner in which offence was committed shows meticulous and careful planning coupled with sheer brutality and apathy for humanity in the execution of the offence, in every probability the accused would have the potency to commit the similar offence in future and therefore, the probability that the accused can be reformed or rehabilitated is strongly negated.

No less significant is what is then brought out by the Bench in para 140 that, After due consideration and having taken into account all the circumstances prevailing in the case, we are constraint to hold that the rights of the victim cannot take a back seat while considering the rights of the accused persons. Although in the aforesaid case of Ravi S/o. Ashok Ghumare vs. State of Maharashtra (supra), the appellants have committed gang rape and murder of victim. However, the present case not less serious. The appellants in the present case had done all they could to ebb out the life of prosecutrix and had left her thinking her to be dead, but prosecutrix regained consciousness the next day and was saved due to quirk of fate.

Of course, the Bench then hastens to add in para 142 that:
Consequently, we confirm the death sentence awarded to the appellants under Section 376(DB) of IPC. It is directed that the appellants shall be hanged by neck till their death. The sentence of life imprisonment on both the appellants under Section 307, 307/34 of IPC is also affirmed and the sentence of life imprisonment and Rs.10,000/- fine each with the default stipulation of six months RI also stands affirmed. The conviction of the appellant Irfan under Section 366A and 363 of IPC also stands affirmed. However, the sentence would be imposed only under the more serious of these offences under Section 366A of IPC and the sentence of appellant Irfan imposed by the trial Court of 10 years of RI and Rs. 10,000/- fine with default stipulation of six months of R.I also stands affirmed.

Finally, the Bench then concludes by holding in para 143 that:
Appellant Asif stands acquitted from the offence under Sections 363 and 366A of IPC. Any fine amount deposited by Irfan in lieu of Section 363 of IPC and deposited by Asif under Sections 363 and under Section 366A of IPC be returned to these appellants. The fine amount of Rs.30,000/- so deposited shall be handed over to the prosecutrix as compensation. We also affirm the observation of trial Court that the copy of this judgment be sent to a Secretary District Legal Service Authority, Mandsaur, for giving adequate compensation to prosecutrix under M.P. Apradh Pidit Pratikar Yojna, 2015. The disposal of properties shall be as per para 104 of the impugned judgment. The jail sentences under various sections awarded to the Irfan shall run concurrently. A copy of this judgment be provided to both the appellants. The copy of this judgment be sent along with the original record for compliance. The reference thereby stands answered wherein, the death sentence imposed upon the appellants has been affirmed. The appeals of appellant Irfan stands rejected while the appeal of Asif stands partly allowed with regard to his conviction under Section 363 and 366A of IPC.

In summary, we thus see that the two Judge Bench of the Indore Bench of Madhya Pradesh High Court comprising of Justice Shailendra Shukla and Justice Vivek Rusia have very commendably, cogent and convincingly accorded suitable reasons for according death penalty for the gang rape accused as their involvement was found to be certain and the most ruthless and roughshod manner in which they mercilessly committed gang rape definitely deserved no mercy.

While upholding the death sentence, the Indore Bench thus very rightly observed that the accused have not shown any remorse that they have acted in a cold blooded manner and have followed their natural routine after committing the ghastly incident, which shows that they were already hardened into such perverts with criminal mindset which was devoid of any emotions or care about small girl child. Still then how could they not be awarded the death penalty by the Judges? Ostensibly, the death penalty then had to follow as a corollary which emanated from the ghastly manner in which this condemnable incident had been perpetrated by the offenders in this notable case!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.