What bigger proof is needed to prove that life imprisonment is worse than death penalty than this that none other than the Bombay High Court itself in a latest, learned, laudable and landmark judgment titled The State of Maharashtra (through DCB, CID, Unit-III, Mumbai) v/s Vijay Mohan Jadhav @ Nanu and 3 others in Confirmation Case No. 2 of 2014 that was reserved on October 14 and then finally pronounced on November 25, 2021 commuted the death penalty awarded to three men who gangraped a photo journalist in Mumbai inside Mumbai's defunct Shakti Mills compound on August 22, 2013 to life sentence, saying the convicts deserved to repent their offence and death put an end to the process of repentance, suffering and mental agony.

The Division Bench comprising of Justice Sadhana Jadhav and Justice Prithviraj Chavan minced just no words to hold unambiguously that:
They deserve imprisonment for life i.e. for the reminder of their material life...Every day the rising sun would remind them of the barbaric acts committed by them and the night would lay them with a heavy heart filled with guilt and remorse. The Bench then also added that:
They did not deserve to assimilate with the society as it would be difficult to survive in a society of such men who looks upon women with derision, depravity, contempt and objects of desire. Very rightly so!

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Smt Sadhana S Jadhav for herself and Justice Prithviraj K Chavan sets the ball rolling by first and foremost putting forth in para 1 that:
The world has never yet seen a truly great and virtuous nation because in the degradation of woman the very fountains of life are poisoned at their source. Lucretia Mott.

Women are the backbone of every nation and therefore, they deserve their due respect and honour. Honour and Respect for women are the marks of a civilized Society. The Legislature has introduced several laws in order to ensure safety and security to women in society. After the brutal gang rape coupled with murder of a young girl on 16/12/2012 in Delhi, the Parliament by notification dated 23/12/2012 constituted a committee headed by Former Justice J.S. Verma, Justice Leila Seth and former Solicitor General of India Gopal Subramanium.

The Committee so constituted was set up with the objective of recommending steps to be taken for the protection of honour and dignity of women, to deal with crimes against women, to recommend penalties which would act as a real deterrent to potential offenders of crimes against women and for providing speedy justice. The Committee after taking into consideration the opinions of all the stakeholders submitted its report and recommendations to the Government on 23/1/2013.

The Parliamentary Standing Committee of Home Affairs, Government of India, after considering the report submitted by Justice Verma Committee, reports of Ministry of Home Affairs, 172nd Report on Review of Rape Laws of Law Commission of India, the Criminal Law (Amendment) Bill, 2012, the Criminal Law (Amendment) Ordinance, 2013, opinions of all concerned women organisations, NGOs, suggestions of State/UT Governments and Members of Parliament prepared a Report and expressed the necessity to give effect to the revised laws as expeditiously as possible vide their report dated 26th February, 2013. The report was tabled before the Parliament on 1st March, 2013.

The Government drafted the Criminal Law (Amendment) Bill, 2013, by which:

1. definition of rape was broadened.
2. The ambit of aggravated rape was also broadened and the punishment thereof was enhanced.
3. Punishment was prescribed for enhancing the sentence to death penalty, for an offence where in the course of commission of an offence of rape, the offender inflicts any injury, which causes the death of the victim or causes the victim to be in a persistent vegetative state.
4. To punish the repeat offenders of rape with imprisonment for life, which shall mean the remainder of the person's natural life, or with death.
5. Prescribe punishment for the offence of gang rape with rigorous imprisonment for a minimum of twenty years extendable to life (which shall mean the remainder of that person's natural life) and fine; to be paid to the victim to meet the medical expenses.

While elaborating on the facts of the case, the Bench then recalls in para 6 that:
The present case is a sad saga of an young photo journalist. The survivor Miss X(P.W.6) was working with Time Out Magazine of Essar Group as a photo-journalist. Anurag Banerjee (P.W. 17) was working as her colleague and Ms. Tejal Pandey (P.W. 5) was the head of the department. Her job profile was to photo shoot, filmshoot etc. P.W. 17 had floated the idea of photo-shooting – old dilapidated structures and old articles in Mumbai. The idea was to artistically capture the subjects and to preserve it as memory for future generation. P.W. 6 therefore, decided to work with P.W. 17 on the said project.

While continuing in the same vein, the Bench then discloses in para 7 that:
On 22/8/2013 P.W. 6 and P.W. 17 left the office at 5 p.m. to proceed to Shakti Mills to photo-shoot and capture the dilapidated structure of Shakti Mills. The only way they knew to reach Shakti Mills was from Mahalaxmi Railway Station. When they reached the compound of Shakti Mills, they saw a dilapidated structure but could not find their way to enter. At that juncture, they were approached by two men- Accused No. 1 and Accused No. 4, who offered to guide them.

When they reached inside, they started taking photographs. They did the photo-shoot for about 45 minutes. When they reached the end of the premises, the said two persons again met them. They were accompanied by a third person(Accused No. 3). They informed P.W. 6 and P.W. 17 that they had been seen by Senior Railway Officer in-charge of the premises and therefore, they will have to meet him. P.W. 6 and P.W. 17 wanted to speak to the Senior Railway Officer on cell-phone. However, they insisted upon them to meet them and offered to take them through a short-cut.

Going forward, the Bench then further stated in para 8 that:
P.W. 6 and P.W.17 followed the three persons. P.W. 6 informed their boss that they were accosted by Railway personnel, on which they were directed to apologize and leave immediately. Thereafter, one of the accused blamed P.W. 17 of having committed murder in Shakti Mill premises. Charge of which was denied by P.W. 17. Thereafter, one of the accused called his associates by saying that they have got a prey. Two persons immediately reciprocated to the call and reached P.W. 6 and P.W. 17. P.W. 6 and P.W. 17 offered their belongings to all 5 persons requesting them to let them go unharmed in lieu of their belongings.

The offer was denied. P.W. 6 was taken to a dilapidated structure. Just near the structure, the hands of P.W. 17 were tied with a belt and 3 persons stood near him to guard him. P.W. 6 received calls from her mother. She was directed to speak in Hindi and inform about her well-being. P.W. 6 was threatened with a piece of broken glass. Her cell-phone was disconnected. At the point of broken piece of glass, she was directed to denude herself of her clothes. She was made to lie on a dilapidated cement platform. There P.W. 6 was ravished by all 5 persons one after another. They all had vaginal and anal intercourse with her. She was also coerced to have oral sex with one of the accused. She was shown a pornographic clip and then she was forced to imitate the same act as that in the pornographic clip. She was told not to attempt to file a complaint. She was also told that she is not their first prey to have satisfied their lust. There have been many in the past and they could never be apprehended.

Moving on, the Bench then brings out in para 9 that:
She was suffering from unenduring, agonizing pain. On enquiry she told P.W. 17 what had happened to her. As she was suffering from excruciating pain, they took a taxi to Jaslok Hospital. On the way they called upon Tejal Pandey and informed her about the horrific trauma which they had undergone. At Jaslok Hospital, the survivor narrated the whole incident to the doctor. She was badly injured. She narrated the whole episode with tears in her eyes, pain in her muscles and disgust in her heart.

Not stopping here, the Bench then further pointed out in para 10 that:
There she narrated the details of the incident to P.W. 39 Dr. Asmita Patki and P.W. 40 Dr. Nisha Singh. Since she had suffered from severe injuries on her vagina and anus and also other parts of her body, she was admitted in ICU. Information was given to N.M. Joshi Marg Police Station. Police rushed to Jaslok Hospital. Her statement was recorded by P.W. 38 WPSI Mhatre. On the basis of her statement, Crime No. 244 of 2013 was registered at N.M. Joshi Marg Police Station. Sketches of the accused were drawn on the basis of the description given by P.W. 17. The sketches were shown to a secret informant who identified the sketch of juvenile in conflict with law. On 23/8/2013 at 6.30 a.m., Spot panchanama was drawn. The juvenile in conflict with law was brought by Agripada Police Station. In the course of interrogation of the juvenile in conflict with law, the names of the miscreants had transpired and they were arrested on 24/25th August, 2013. On 12/9/2013 the statement of P.W. 6 was recorded under section 164 of the Code of Criminal Procedure, 1974 before the Magistrate.

Be it noted, the Bench unequivocally states in para 114 that:
While setting aside the sentence of death penalty, it may appear to the public at large that we play a counter majoritarian role. However, the Constitutional Courts are bound to take into consideration the judicial mandate not by considering just individual rights or the rights of the criminal, but to follow the procedure established by law. At the cost of reiteration, we would observe that Section 376E of the Indian Penal Code is not a substantive offence, but is a punishment contemplated for repeat offenders under section 376D, 376DA, 376DB of Indian Penal Code . We would not take a pedantic approach to mean that it contemplates commission of an offence after the first conviction as under section 75 of the Indian Penal Code. But it would mean that the sentence of death penalty may be awarded in a case which is tried after the first conviction for a similar offence as in the case of Rajendra Wasnik(cited supra). There can be no alternative but to follow the procedure laid down by the Statute, as a judicial mandate.

To put things in perspective, the Bench then enunciates in para 115 that:
There is specific mandate of the Supreme Court that Courts cannot be influenced by public opinion in the process of imparting justice. We are further guided by the Supreme Court in the case of Chhannu Lal Verma v/s. State of Chhattisgarh (2018) ONLINE SC 2570, wherein the Apex Court has held as follows :–

It is also a matter of anguishing concern as to how public discourse on crimes have an impact on trial, conviction and sentence in a case. The court's duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weight with the court, when it deals with the collective conscience of the people or the public opinion. After all the society's perspective is generally formed by the emotionally charged narratives. Such narratives need not necessarily be legally correct, properly informed or procedurally proper. As stated in report No. 262 of the Law Commission, the Court plays a counter-majoritarian role in protecting individual rights against majoritarian impulses. Public opinion in a given case may go against the values of Rule of law and constitutionalism by which the Court is nonetheless bound and as held by this Court in the case of Santosh Bariyar(Cited supra) public opinion or people's perception of a crime is ...... neither an objective circumstance relating to crime nor to criminal. In this context, we may also express our concern on the legality and propriety of the people engaging in a trial prior to the process of trial by the Court. It has almost become a trend for the investigating agency to present their version and create a cloud in the collective conscience of the society regarding the crime and the criminal. This undoubtedly puts a mounting pressure on the Courts at all the stages of the trial and certainly they have a tendency to interfere with the due course of justice.

28 Till the time death penalty exists in the Statute books, the burden to be satisfied by the Judge in awarding this punishment must be high. The irrevocable nature of the sentence and the fact that the death row convicts are, for that period hanging between life and death are to be duly considered. Every death penalty case before the Court deals with a human life that enjoys certain constitutional protection and if the life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as Judges which is guided by constitutional principles, cannot allow any thing less than that.

Simply put, the Bench then remarks in para 116 that:
Another question that is posed before us is whether the accused need to be eliminated or made to suffer imprisonment for life till their natural life to make them realise the injury that is caused to the survivor and repent for the same till their last breath. The accused have not preferred any appeal challenging the death penalty imposed upon them. Death puts an end to the whole concept of repentance, any sufferings and mental agony.

Of course, the Bench then rightly holds in para 117 that:
The trial Court has failed to answer as to whether the imposition of alternative sentence, as contemplated under section 376D of Indian Penal Code was unquestionably foreclosed. The statute has not prescribed mandatory death penalty. Although the offence is barbaric and heinous, it cannot be said at the threshold that the accused deserve only death penalty and nothing less than that.

Quite forthrightly, the Bench then observes in para 118 that:
We are of the opinion that in the facts of the present case, the convicts deserve the punishment of Rigorous Imprisonment for life i.e. the whole of the remainder of their natural life in order to repent for the offence committed by them. The convicts in the present case do not deserve to assimilate with the society, as it would be difficult to survive in a society of such men who look upon women with derision, depravity, contempt and objects of desire.

It is worth noting that the Bench then specifies in para 119 that:
The conduct of the accused, and their bold confession to the survivor that she is not the first one to satisfy their lust, is sufficient to hold that there is no scope for reformation or rehabilitation. In any case, the evidence of D.W. 4 shows that after this incidence, the family of the accused was ostracized from the society and they were forced to leave their hut and are residing on the footpath.

It cannot be glossed over that the Bench then holds in para 120 that:
In view of the Judgment of the Apex Court in the case of Rajendra Wasnik (cited supra), Santosh Bariyar(cited supra) and Mohd. Mannan(supra), we hold that this is not a case of previous conviction, since both the Sessions Cases i.e. Sessions Case Nos. 846 of 2013 and 914 of 2013 were being tried simultaneously and the conviction in both the cases was recorded on the same day without giving an opportunity to the accused to place before the court the mitigating circumstances.

Most significantly, what forms the cornerstone of this notable judgment is then summed up in para 121 wherein it is held that:
The accused do not deserve any leniency, empathy or sympathy. Hence, they deserve Imprisonment for life i.e. for the remainder of their natural life. Everyday the rising sun would remind them of the barbaric acts committed by them and the night would lay them with a heavy heart filled with guilt and remorse. Moreover, the Report of the Law Commission has after a due survey observed that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. We therefore, feel that a sentence of rigorous imprisonment for the remainder of their natural life without any remission, parole or furlough would meet the ends of justice.

It is worth noting that the Bench then also points out in para 122 that:
In Report No. 262 of Chapter VII of the Report, Law Commission concluded as follows :

7.1.1. The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Further life imprisonment in Indian law means imprisonment for whole life subject to just remission which in many states in cases of serious crimes are granted only after many years of imprisonment which range from 30 to 60 years.

7.1.2 Retribution has an important role in punishment. However, it cannot be reduced to vengeance. The notion of 'eye for an eye, and tooth for a tooth' has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.

7.1.3 In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases.

Interestingly enough, the Bench then hastens to add in para 125 that:
At this juncture, we are reminded of the sestet of the Poet and Philosopher- Kahlil Gibran.

And how shall you punish those whose remorse is already greater than their misdeed?

Is not remorse the justice which is administered by that very law which you would fain serve?

Yet you cannot lay remorse upon the innocent nor lift it from the heart of the guilty.

Finally, the Bench then concludes by holding in para 126 that:
In view of the above discussion and various judgments of the Supreme Court, we pass following order :

ORDER

1. The reference of confirmation of the death sentence is answered in the negative.
2. The death sentence awarded to the respondents in Sessions Case No. 846 of 2013 vide Judgment and Order dated 4/4/2014 under section 376E of the Indian Penal Code is quashed and set aside.
3. The conviction of the respondents for the offences punishable under section 376D of the Indian Penal Code is upheld.
4. The convicts shall suffer Rigorous Imprisonment for life for offence under section 376(D) of the Indian Penal Code which shall mean Rigorous Imprisonment for the remainder of their natural life. The convicts shall not be entitled to any remissions including parole and furlough.
5. The conviction on all other counts is also upheld
6. Dr.Yug Mohit Chaudhry, Advocate appointed to espouse the cause of the Respondents is entitled to the professional fees as per law.
7. Copy of this Judgment be sent to the convicts in jail.

In sum, Bombay High Court has very rightly commuted the death penalty of the accused to life term and accorded logical reasons for doing so as discussed aforesaid. The Court rightly held that death penalty does not serve the penological goal of deterrence any more than life imprisonment. It must be underscored here that the Bombay High Court was absolutely right in holding that life imprisonment is the most strictest punishment which it rightly awarded to the accused in this leading case and that too rigorous!

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