Thread by @LawBeatInd

Bombay High Court expected to hear death penalty of Rape Accused in the Shakti Mills Gang Rape Case.
It is a confirmation case.
#bombayhighcourt

Bench of Justice S.S. Jadhav and Justice Prithviraj K. Chavan will convene soon.
#bombayhighcourt

The Bench has convened. Hearing to begin soon #bombayhighcourt

Special Public Prosecutor Deepak Salvi for the State. Adv. Yog Mohit Chaudhry as Amicus for the accused.

Adv. Chaudhry continues his submissions from yesterday, stating the irregularities in the charges that have been framed. Referring to additional charge on pg.153, he submits that the name of the victim has been withheld.

How is the accused to know which offence, and against whom, he is being charged for! And this is when the prosecutrix has been named previously. On pg. 146, the prosecutrix has been named half a dozen times.

Something as fundamental as the accused being informed whom the offence is alleged to have been committed against, has not been followed.

Nowhere before has the prosecutrix been named as the telephone operator. But if we see the 2nd charge on pgs 152&153, the charge pertains to offences carried against the telephone operator.

Justice Jadhav states that the victim cannot be referred to as her profession.

Adv. Chaudhary submits that the accused aren't dishonest. That they have admitted to their role w.r.t.other charges, but for this particular one they aren't aware who the supposed telephone operator in question is

Adv. Chaudhry draws attention to question 980 where the accused were questioned, and agreed to & accepted their involvement. But they stated that they're unaware of any telephone operator.

Justice Jadhav asks if the accused have been convicted under S.376(D)
Adv. Salvi, Special Public Prosecutor, stated that judgement states that the accused are convicted of all charges levied.

Adv. Chaudhry argues that there are no grounds for conviction under S. 376(e) of IPC, as there has been no previous conviction under S.376(d).

Where is substantive conviction under S.376(d) in the first case?

The threshold requirements are not fulfilled.

In the present case, nowhere in the evidence has the victim been referred to as the telephone operator.

Adv. Chaudhry proceeds to read S.228(a) of the IPC that deals with prohibition on naming victims.

He submits that this injunction does not extend to the Court.

Adv. Chaudhry: The purpose of CrPC is to facilitate fair trial.Can we have such a sterile reading of law? Where a particular section of the IPC affects constitutional safeguards? Where the accused doesn't get a fair trial and doesn't know who the victim mentioned in the charge is

Adv. Chaudhry proceeds to read S.211 of CrPC- Contents of Charge.

If the law creates any specific name for an offence, that specific name must be used in the charge.

If I am charged under IPC for gangrape, you cannot levy a charge of sexual assault against me. Sexual assault isn't defined as am offence under IPC, it is an offence under POCSO.

Adv. Chaudhry proceeds to read the 1st charge mentioned on Pg.146 of Vol.I

The 1st charge states the offences of sexual assault. What law is this?
Sexual assault isn't an offence under IPC. Please see S.7 of the POCSO Act, sexual assault has been defined there.

Justice Jadhav enquires about prejudice while asking if an irregularity in framing charges causes serious prejudice against the accused.
Adv. Chaudhry: Absolutely! I will, in fact, have to make a separate submission about how it affects the accused.

I will take your lordships through the errors in charges and then I will assist the Court with the cumulative effect that these errors have.

Justice Jadhav: Is it do because there were 2 incidents on 2 separate occassions with 2 different survivors? And the accused were unsure who was being referred to (as telephone operator)?

Adv. Chaudhry: Exactly! There is not a single reference to the 'telephone operator' being raped- in the evidence.

Justice Jadhav addresses the Special PP, Shri Deepak Salvi, stating that being the prosecution, he should have examined the other prosecutrix. Had the other prosecutrix been examined in the present case, no question of irregularities would arise.

Ad. Salvi: Ladyship I will come to this point.
Justice Jadhav: Just consider it
Adv Salvi: There is a distinction between leading and misleading. If at all it is leading, it is not misleading.
Justice Jadhav: He (Adv. Chaudhry) will elaborate on the cumulative effect.

Adv. Chaudhry: I admit I have been convicted. But who is this person? I don't know! I am being charged under S.376(e), IPC as a repeat offender. I have to at least be told whom I am accused of raping.

Adv. Chaudhry proceeds to read S.218 of CrPC - Separate Charges for Distinct Offences.

You cannot have multiple offences under one charge. Please look at the 6th, 7th and 10th charges.

Under the 6th charge, I am accused of committing offences under Sections 376 and 377

Under the 7th charge, also, I am accused of committing offences under Sections 376 and 377

Under the 10th charge, I am accused of offences under Sections 341 and 342.

These are all distinct offences, they cannnot be clubbed together!

The CrPC has to be followed. How many errors can be allowed in a single charge?
If we say we are a country of laws, conviction has to be by law.

In this present case, there is no procedure followed at all! How can I be charged three times for S.376?

The same accused has been charged with rape three times!

Justice Jadhav asks if these were the draft charges filed by the Special Public Prosecutor.

Adv. Chaudhry states that there is a responsibility of the Court.

Justice Jadhav: We agree. But we are stating that the special prosecutor must have looked into this.
Adv. Salvi mentions that the special prosecutor during trial was someone else.

Adv. Chaudhry: The Purpose of a Charge is to be put on notice. What will the accused think? He's been charged for rape thrice.
Adv. Chaudhary proceeds to read S.376 of the IPC.

Adv. Chaudhry: Common intention is necessary ingredient for gangrape. So how can I be charged under S.376(d) along with S.120(b)?

Adv. Chaudhry: Please read the 2nd charge.
Justice Jadhav: It is redundant.
Adv. Salvi: I will have to examine the records.
Justice Jadhav: We have to get into if there is any prejudice.

Adv. Chaudhry: please see Vol.I, pg.7. It reads that the learned special prosecutor submitted draft charges.
Justice Jadhav (to Adv. Salvi): You will not have to examine records, Adv. Chaudhry has helped.

Adv. Chaudhry: I will move further. My submission will be that I am convicted for offences that I haven't been charged for.
Justice Jadhav: Is it the charge that S.201 is read with S.120b?
Adv. Chaudhry: Yes, it is.

Justice Jadhav: What is S.201 for? Setting the shirt on fire?
Adv. Chaudhry: Charge number 13, on pg.150. it is also for destruction of video clipping apparently. Allegation is that a video was shown to the prosecutrix, but the said video wasn't found on the phone.

Justice Jadhav: Are they convicted?
Adv. Chaudhry: Yes!

Adv. Chaudhry: Can you convict for the offence and aggravated form of offence at the same time? I have been sentenced to life imprisonment under S.376d, and then I have been convicted under S.376e and sentenced to death.

You may charge me, but how can you convict me for both? How do you give separate sentences for the same offence?

My submission is that sentence under 376d and 376e, together, is unsustainable in law. There is a judgment of Bombay High Court in this regard.

Adv. Chaudhry proceeds to read the relevant part of the judgment.

Adv. Chaudhry: All ingredients of offence S.376d are present under S.376e.

The conviction cannot be for both S.367 and 377 because the revised definition of S.367 includes offences that I have been charged with- being oral and anal sex.

Adv. Chaudhry: I will move forward with another leg of submission.

Articles 14 and 21, and principles of natural justice, and due process require that accused must get to know the charge lehlled against them and must be allowed to defend themselves.

It should have been shown from the get-go that the punishment could have been death sentence.

So many times the demeanour of the accused impacts the death sentence. Their ability, or inability, to show remorse also impacts the death sentence.

Justice Jadhav agrees and mentions that life has become inexpensive.

Adv. Salvi states that the stage at which remorse is expressed us also pertinent. Remorse cannot be established before the Court merely at the time of hearing.

Justice Jadhav: Unless there is perversity, the act mentioned here would not have taken place.

Justice Jadhav: The remorse is that they've not challenges the conviction. It doesn't show remorse, but it shows acceptance.

Adv. Salvi: There is nothing to challenge, Ladyship. They have committed the same offence again. S.376e takes care of this.

Adv. Chaudhry continues arguments.
The learned judge has relied on S.236 of CrPC.
In the facts of this case, the learned judge had no option because both trials started together. The judge's reliance on S.236 is after the trial.

Both the trials shouldn't have started together and her (judge's) reliance on S.236 is misplaced.

Adv. Chaudhry: Kindly see Pg. 2321 of Vol.X. Para 251. Charge under S.376e should have been framed at the beginning.

Yes, S.211(7) of CrPC states that you can frame a charge at anytime before judgment, but a death sentence?!

As per the learned judge, the charge was not have been framed earlier so as to avoid prejudice.
But the judge hearing both matters was the same! So the prejudice exists.

Can S.236 of CrPC pass the tests of Articles 14 and 21? In light of a death sentence charge, this S.236 falls foul of Articles 14 and 21.

When Death Penalty charge is introduced later, I need to bring onboard mitigating circumstances and examine witnesses again.
I was only allowed to examine the witnesses to challenge the previous conviction.

Adv. Chaudhry proceeds to read A.217 of CrPC- Recall of Witness.

Adv. Chaudhry: If I'm not allowed to recall witnesses in this case, then in which case?

Justice Jadhav (to Adv. Salvi): Even the prosecution did not feel the need to recall witnesses? Not even the survivors? You didn't feel the need to recall the prosecutrix?

Adv. Salvi: at that stage, my learned friend might not have felt the need. Had I been there, perhaps I would have felt so too.

Justice Jadhav: Such a heinous crime affects everyone. It impairs us to see such procedural discrepancies.

Adv. Chaudhry: please see Vol I, pg.80, exhibit 258. Then kindly see page 82, exhibit 261. The prayer to recall other witnesses is rejected.

As regards merits of this case, I have stated why S.376e wouldn't stand. I have stated irregularities on charges, irregularities on convictions.
I would require at least 2 days to argue on 376e. This being death penalty.

Adv. Yug Mohit Chaudhry will continue submissions tomorrow morning at 10:30 am.