The accused in the gang rape of a photojournalist at Shakti Mills last August will have to face trial under the additional charge under a section of the Indian Penal Code that attracts the death penalty as the maximum punishment, after the Bombay high court refused to interfere with the proceedings.
A division bench of Justices NH Patil and Abhay Thipsay observed on Thursday said, "We observe that at this stage we would refrain from expressing any conclusive view about applicability of section 376 (e) and the tenability of framing of additional charges post conviction. We keep these issues open."
The judges added: "The prosecution will lead evidence and the accused will be given fair chance to defend themselves before the trial court."
The HC was hearing petition filed by three accused Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari - who were found guilty of gang raping a photo journalist, challenging the framing of additional charges under section 376 (e).
The prosecution had sought to add the charge after they were convicted in a gang rape case of a telephone operator which provides for maximum sentence of death in the case of a repeat
offence of rape. The sessions court, on March 20, convicted them for the offence and sentenced them to life imprisonment the following day, i.e. on March 21.
This provision was added to the section 376 (rape) after the December 2012 Delhi gangrape.
Defence lawyer Moin Khan contended that fresh charges cannot be applied post judgment in a case, while Advocate General Darius Khambata argued that the lower court could frame additional charge even after pronouncing them guilty but before the sentence was passed.
Advocate Aabad Ponda, who was appointed as amicus curiae (friend of the court), argued that the prosecution could not have added charge later. Section 211 (7) CrPC requires for previous conviction to be there at the time of framing of charges for the first time against the accused. "Charges cannot be added or altered after conviction. The date, place and time of the previous conviction needs to be mentioned while framing charges in the second case," Ponda argued.
Khambata, however, refuted this and said section 376 (e) clearly states that any accused with a previous conviction faces life or death penalty for a subsequent conviction. "The word here is subsequent 'conviction' and not subsequent 'offence'. The time of the previous conviction is irrelevant and does not make a difference. The previous conviction can be of ten years back, ten days back or just a minute back," he said.
The court remarked that this confusion would not have arisen had the prosecution first completed trial and sentencing in one case then framed charges in second case.
"Was it not possible for the trial court to have conducted trial in one case first, pass judgment and then start trial in the second case? There is no question that the ghastly acts committed by the accused are condemnable. But we are only on the issue that the consequence of a previous conviction of a case pronounced a minute ago is so drastic that the convicts face death penalty," said justice Patil.
The HC's refusal to interfere means that the sessions court can go ahead with examination of witnesses post framing of additional charges and hear arguments of both prosecution and defence on quantum of sentence in the second rape case.
The prosecution has already examined two witnesses. The defence advocates refused to cross examine them saying that they wanted to challenge the additional charge before the HC.
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