Case Study on Mukesh & Anr vs State For Nct Of Delhi & Ors (Nirbhaya Case) by Somesh Vaidya @LexCliq

Mukesh & Anr vs State For Nct Of Delhi & Ors

Popularly referred as the “Nirbhaya Case”, the case of Mukesh & Anr vs State For Nct Of Delhi &
Ors is the latest case in which the death sentence is awarded to the convicts. After 5 years of the
brutal crime, the judgement was given on May 5, 2017, by the three-judge bench of the Supreme
Court comprising Justice R. Banumathi, Justice Ashok Bhushan and the then Chief Justice of
India, Deepak Mishra. However, it got executed only in the year 2020, seven years after the
actual commission of the crime. The case became the leading case in the modern Judicial System
and provided rooting to the Juvenile Justice Act, 2015 and setting up of fast track court (FTC) for
speedy trial in sexual offense cases.
Date of Judgement: 5 May 2017
The learned senior counsel for the respondent: Mr. Siddharth Luthra
The learned counsel for the appellants: Mr. M.L. Sharma and Mr. A.P. Singh,

Facts of the Case

On 16 December 2012, the deceased victim, ‘Nirbhaya’ went out with her friend, the informant,
to the PVR situated in Select City Walk Mall, Saket to watch a movie. After the show, about 8:30
p.m., they took an auto and reached Munirka bus stand from where they boarded a white
coloured chartered bus which was bound to Dwarka/Palam Road. There were six people inside
the bus, four in the driver’s cabin and two sitting behind it. After that, no passengers were
allowed in the bus and lights were put off. The friend of the deceased victim was abused and
beaten up brutally by an iron rod. They were robbed of their belongings and clothes. The girl was
inhumanly raped by six accused (Mukesh, the bus driver, am Singh, Akshay, Vinay, Pawan and
the Juvenile in Conflict with Law (JCL) one by one at the rear side of the bus. Later, they were
thrown out of the front door and threw out of the moving bus at National Highway No. 8,
Hotel Delhi 37, Mahipalpur flyover by the side of the road. They were hospitalized in Safdarjung
hospital of Delhi by Police Authorities.

On 17th December, FIR was filed in Vasant Vihar Police Station under Section 120B IPC and
Sections 365/366/376(2)(g)/377/307/302 IPC. Later that day, Ram Singh was arrested and two
others accused Vinay Sharma and accused Pawan followed that.
On 21.02.2021, the dying declaration was recorded in which the victim told the series of events
that happened on the night of 16 December. In total, three dying declarations were recorded
before the death of the ‘Nirbhaya’. During the course of the investigation. Various forms of
electronic evidence were collected by Police, confirming the narrative told by the victims.
Further, the DNA samples of the accused were taken along with the prosecutrix (Nirbhaya) and
her friend, the informant. The DNA analysis depicted that the samples were authentic and
established the identities of the accused persons beyond a reasonable doubt.
Further, the charge sheet was filed on 3 January, 2013 under Section 365/376(2)(g)/377/307/395/
397/302/396/412/201/120/34 IPC and supplementary charge sheet was filed on the following day.
While examining, the accused persons claimed their guilt. The learned session judges sentenced
death penalty to all the convicts on 10.09.2013. The High Court of Delhi shared the same
judgement as by the session judges and declared all accused as the convicts. The appeal was
made in the Supreme Court of India.

Issues Raised by the Appellant

1. There was a delay in filing of FIR which is seen by the court with suspicion
because there is possibility of a concoction of evidence against an accused.
2. The FIR lodged didn’t have the following information: the names of the assailants
(ii) the description of the bus and (iii) the use of iron rods.
3. The prosecutrix’s friend’s, the star witness of the case cannot be taken as a
reliable witness due to continuous additions made in every subsequent statement.
In reference to delay of FIR filed, the court held that the FIR filed was not delayed as the first
human instinct and psychology is to protect the victim. Both the victims, the prosecutrix’s and
her friend were admitted in the hospital. The court cited the case of Ram Jag and others v.
State of U.P (1974 AIR 606) and State of Himachal Pradesh v. Rakesh Kumar( (1974) 4
SCC 201), in which, it was laid down that in lodging of the FIR on the ground that the first
endeavor is always to take the person to the hospital immediately so as to provide him
medical treatment and only thereafter report the incident to the police.
Furthermore, in reference to missing information in the FIR, the Supreme Court pointed out the
judgement in the case in State of Uttar Pradesh v. Naresh and others, the Court opined that
it is settled legal proposition that “FIR is not an encyclopedia of the entire case.” It may
not and need not contain all the details. The naming of the accused therein may be important but
not naming of the accused in FIR may not be a ground to doubt the contents thereof in case
the statement of the witness is found to be trustworthy.

Court’s Observation and Judgement

In the judgement, the three judge bench of the Supreme Court comprising Justice R. Banumathi,
Justice Ashok Bhushan and the then Chief Justice of India, Deepak Mishra, quoted Krishna Iyer,
J. stating,“Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get
away with it because truth suffers some infirmity when projected through human processes.”
Further, they shared the opinion of the Delhi High Court and sentenced death by way of hanging.
They opined that the act done by the accused persons did not deserve any sympathy.
In a strong message, that the diabolic crime had shocked the collective conscience of the society,
and that the court can treat it as a rarest of rare cases where death sentences can be awarded.
DNA identification, fingerprints, witness testimonies and odontology proved the presence of the
accused in the bus and their involvement in the crime, as said by the Supreme Court. To support
the judgement, inter alia, the bench referred to the leading case of the Bachan Singh V. State of
Punjab ( 1982 AIR 1325) and the Machhi Singh V. State of Punjab(1983 AIR 957) and took
sustenance of the “rarest of the rare” doctrine as laid down in the Bachan Singh case. Further, In
Machhi Singh case, a three-Judge Bench has explained the concept of ‘rarest of the rare cases’
by observing thus: “ When a member of the community violates this very principle by killing
another member, the society may not feel bound by the shackles of this doctrine. …Every
member of the community owes a debt to the community for this protection.”
The court further state here that in the said case, stress was laid on certain aspects, namely, the
manner of commission of the murder, the motive for commission of the murder, anti-social or
socially abhorrent nature of the crime, magnitude of the crime and personality of the victim of
murder. The court added in Machhi Singh v. the State of Punjab the Court expanded the “rarest of
rare” formulation beyond the aggravating factors listed in Bachan Singh to cases where the
“collective conscience” of the community is so shocked that it will expect the holders of the
judicial power centre to inflict the death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. But the
Bench in this case underlined that full weightage must be accorded to the mitigating
circumstances in a case and a just balance had to be struck between the aggravating and the
mitigating circumstances.” Moreover, The rarest of the rare case” comes when a convict would
be a menace and threat to the harmonious and peaceful coexistence of the society. The crime
may be heinous or brutal but may not be in the category of “the rarest of the rare case”.
After so stating, the Supreme Court administered justice to the family of the victim and all the
women in the country by confirming the punishment of death sentence to the four convicts in the
Nirbhaya gangrape and murder case, terming it as the rarest of rare, most brutal and barbaric
attack on the 23-year-old paramedic student, Jyoti Singh. The convicts treated the victim as an
object of enjoyment and exploited her sexually to the worst level.
Through a unanimous verdict, upheld the Delhi High Court judgement that had concurred with
the trial court decision of the case. Mukesh , Pawan, Vinay Sharma and Akshay Kumar Singh
were hanged till death for the brutality they had shown against a woman of the country. The
bench awarded them the death sentence because their crime met the rarest-of-rare threshold. After
the incident, the fifth accused was not tried and he was sent to a correction home for three years
because he was a minor at that time.

The court acknowledged that the women are marginalized and not safe by stating: “the casual
manner with which she was treated and the devilish manner in which they played with her body,
her identity and her dignity are humanly unthinkable”.
Justice R. Banumathi mentioned that pride and self-esteem are crucial to the personal freedom
of a woman. Social progress depends on the progress of everyone. He quoted Mahatama Gandhi:
“To call woman the weaker sex is a libel; it is man’s injustice to woman. If by strength is
meant moral power, then woman is immeasurably man’s superior. Has she not greater
intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she
not greater courage? Without her, man could not be. If non-violence is the law of our being,
the future is with women. Who can make a more effective appeal to the heart than a woman?”
Further, J Banumathi brought in notice of the crimes against women as an area of concern. He
believed that over the past few decades, legal advancements and policy reforms have done much
to protect women from all sources of violence and also to sensitize the public on the issue of
protection of women and gender justice. Still, the crimes against women are on the increase.
Therefore, various legislations, amendments and provisions were enacted by the government and
judiciary to ensure the protection and safety of women.

Changes in Law after the ‘NIRBHAYA’ Case
1. Until 2012, the definition of rape was restricted just to sexual intercourse. The Criminal
Law (Amendment) Act, 2013 gave a broader meaning to the term rape. It amended the
definition under Section 375 of the IPC. Section 375 of the IPC, after the amendment,
defines rape as any involuntary and forceful penetration without the woman’s consent into
the woman’s body parts like the vagina, urethra, mouth or anus.
2. Secondly, The Criminal Amendment Act, 2013 is also popularly referred to as the
“Anti-rape Act”. Under this change, new offences such as stalking, acid attacks, and
voyeurism were added into the definition of rape and provisions mentioned in the Indian
Penal Code, 1860.
3. Since one of the accused in this case was a juvenile, another flaw in the system was
identified after this case. So, the age for being tried as an adult for violent crimes like
rape was changed from 18 to 16 years, that to the Juvenile Justice Act, 2015.
4. Even the threat of rape is now a crime and the person will be punished for the same.
Further, the minimum sentence was changed from seven years to ten years considering
the increase in the number of rape cases.
5. Additionally, in cases that led to the death of the victim or the victim being in a
vegetative state, the minimum sentence was increased to 20 years.
6. The ‘character of the victim’ was totally irrelevant to rape cases and it doesn’t make any
difference in granting punishment for the crime.
Various changes were made in the Indian Penal Code, 1860. Insertion of Section 354A, 354B,
354D, 376A, 376D were added after the brutal and inhumane incident. The laws were related to
exual harassment and punishment for the same, the offence of compelling a woman to remove
her clothes, the offence of stalking, the Age of consent has been enhanced from sixteen years to
eighteen years. The definition of rape has been widened after the Nirbhaya Case. The
Amendment Act has included more actions under the purview of what constitutes rape such as
unconsented penetration of mouth, urethra, vagina, anus with the penis or other objects by
anyone and unconsented application of mouth to vagina, urethra and anus.

Concluding Remarks

The judgment in case of ‘Nirbhaya’ is remarked as the most crucial in the history of criminal law
of India. It is after decades a convict has been punished with the death sentence for a crime, it is
due to the fact the case falls under the category of the “rarest of rare”. Further, it is significantly
important to criticize and question why it took seven years for a dead rape victim and her family
to avail “justice”. Despite the inauguration of speedy justice in case of sexual assault, the
convicts were hanged only in 2020 in month of march. The prolonged wait to avail justice is not
only tiresome but also questions the Indian Justice System.
The changes and amendments made in various legislations are the much needed laws to protect
women from such heinous crimes. One cannot say that such laws will definitely curb the sexual
violence cases against women, however, it surely helps women to seek justice.

Article by Somesh Vaidya

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