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Shakti Mills case: Govt cites Aruna Shanbaug, says rape a grave crime

A division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dhere, asked the state to explain on Friday, whether section 376 (E) created a new category of offence which peculiarly dealt with repeat offences of rape.

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The Maharashtra Government on Thursday relied on the case of KEM hospital nurse, Aruna Shanbaug to drive the point that a rape victim may be alive but the offence cannot be said to be less than that of murder. Thus it would not be unconstitutional to grant death penalty under amended section 376 (E) of the Indian Penal Code, to repeat offenders.

Advocate General Ashutosh Kumbhakoni made the arguments while opposing the petition, filed by culprits Vijay Jadhav, Kasim Bengali and Salim Ansari, convicted in the infamous Shakti Mills rape case, challenging the Constitutional validity of section 376 (E) of the Indian Penal Code which stipulates death penalty for second-time offenders. The amendment was brought in post the Nirbhaya case.

Kumbhakoni said Shanbaug remained in a vegetative state for over 30 years and this shows that "Rape take away the Right to Life, provided in Article 21 of the Constitution of India. Victim can become a breathing corpse, does that mean its a lesser offence." Shanbaug was raped by a colleague working in the hospital and had later pleaded for passive ethunsasia which was rejected by the Supreme court and later she died in the hospital ward.

Kumbhakoni also argued that in a murder case, there can be exception like person commits murder, without intent or knowledge, thus the culpabality will be different. But in a rape case there cannot be exceptions carved out. Moreover, offences cannot be comparable. "In the scales of justice it is impossible to weigh whether rape is graver than murder or viceversa. It is not a mathematical problem where by applying complex formulas one can solve it."

Opposing the argument of the petitioners that death sentence for repeat offenders of rape under section 376 (E) is not proportional to the crime committed. Kumbhakoni said "India has a victim centric sentencing approach. Rape is a graver offence than murder and the impact on the society at large of the offence has to be considered before giving the punishment."

Rejecting the arguments of the petitioners that section 376 (E) provided mandatory death sentence and not other punishment for second time offenders. Kumbhakoni argued that it would be the discretion of the trial judge and not in all cases death penalty will be handed down. As not every case would fall under the rarest of rare category."

A division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dhere, asked the state to explain on Friday, whether section 376 (E) created a new category of offence which peculiarly dealt with repeat offences of rape.

A Separate Category Of Offence 

A division bench of Justice B P Dharmadhikari and Justice Revati Mohite Dhere, asked the state to explain on Friday, whether section 376 (E) created a new category of offence which peculiarly dealt with repeat offences of rape.

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