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Rape, Murder and Remission: Supreme Court on Bilkis Bano Case

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“A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty?”

 Introduction

The Supreme Court of India passed a judgement in the infamous case of Bilkis Bano favouring the victim and her late family. The judgement is considerably known as a historic landmark judgement shaping the criminology and victimology aspect of law.

The battle of Bilkis Bano in the legal fraternity proves that crime and punishment are two sides of the same coin. While the victim is granted relief as justice prevails, the liberty of the convicts has been taken away and they have been ordered to return to prison.

Factual Matrix

The case starts its roots in the year 2002 in Gujarat during the communal riots. 11 members of the protestors who later came to be known as the convicts of the case broke into Bilkis Bano’s house. They then proceeded to gang rape her along with her family members who were as young as 2- days old. The family members were killed, gang raped and severely abused. In total 22 members of her family were brutally murdered.

The case moved to the Supreme Court to Gujarat and then finally to Maharashtra. The accused members were convicted and sentenced accordingly.  In an appeal to the Gujarat Sessions court by one of the convicts, remission was granted in the year 2022 upon which all the convicts were free and granted liberty.

In August 2023, Bilkis moved to the Apex Court and pleaded to quash the remission orders along with other PILs which supported her case.

The Issue

The core contemplation of the case was whether the State of Gujarat had jurisdiction in granting remission. While going through the proceedings of the case of conviction, it is evident that the transfer of court occurred from Gujarat to Maharashtra. The special court of Maharashtra convicted the criminals on charges of gang rape and murder. Subsequently, the government of Maharashtra was legally responsible for considering a grant of remission.

When the Government of Gujarat granted remission, it was through the central government which approved it through the way of the Home Ministry in Delhi.

The mischief :

One of the convicts had filed an application in front of the CBI and the State of Maharashtra that he had important information withheld which would grant him remission. Both the agency and the government of Maharashtra rejected his case and held that remission would not be granted.

He then fraudulently received permission to approach the Gujarat Government for remission. Upon that, it was revealed in the judgement that the State of Gujarat had used the rules of remission which has not been amended as per the central government. The rules used were the 1992 remission policy instead of the 2014 remssion policy. In the new rules, no government is allowed to grant remission to rapists. Furthermore, as per Section 433A of CrPC, a person would not be granted remission if he has been punished under life imprisonment and 14 years have not been elapsed. It has been stated that the Gujarat Government took advantage of the legal system by not appropriating the laws. It was stated that the central law would prevail over the laws of the state regarding remission.

The Judgement

The two bench judgment of the Supreme Court will prevail for years to come. The court held that the State Government of  Gujarat had no power whatsoever to grant remission for the 11 criminals. The crime committed against the victim and her family was considered to be a social crime as it resulted in a community frenzy. The court drew proportionated the crime committed with that of the social impact it has. The more socially perverse, the less chance of being granted remission was implied by the court of justice.

The court then interpreted the term “appropriate government” to grant remission and held that the state of Gujarat had no powers to shorten the sentence of the criminals and subsequently usurped its powers. In the current matter, the appropriate government was the state of Maharashtra as the case was transferred by the Supreme Court in the year 2002 as it feared the State of Gujarat may have partiality towards the accused. As per Section 432(7)(a) of the CrPC, the appropriate government would be the government which gave the order of conviction and not any other jurisdiction.

The Supreme Court in vesting its powers also held that the 11 convicts shall not hold the power to remission as the gravity of the crimes committed is severe in nature. The court found it appropriate that the 11 convicts be sent back to prison as they have committed grave crimes against humanity the pain of which is irrevocable.

The court agreed that personal liberty is a most important constitutional value enshrined in Article 21 of the Constitution. But in the current case, the liberty of the 11 men was a result of the mistake of the Gujarat government, an incompetent authority, is set aside. Therefore as per the court, it is only reasonable to send the 11 men back to prison.

Conclusion

The rule of punishment includes the mere chance of reducing the punishment. The court analysed the principles of punishment and vehemently acknowledged that in matters of grave, heinous and diabolical crimes, the predators should not be left scott-free. It is believed that the Gujarat Government made a grave error which should have been interfered with by the Supreme Court in its early stages, further stopping the misuse of power.

The two bench judgement upheld the rule of law which is no one is above the law along with the principle of equality which is everyone is equal in the eyes of the law.

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Written by- Sanjana Ravichandran

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The State of Gujarat had no jurisdiction to entertain the prayers seeking remission of the convicts: Supreme court

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Case Title: Bilkis Yakub Rasool vs Union of India & Ors.

Case No: WP (CRL.) NO.491 OF 2022

Decided on: 08.01.2024

Coram: Hon’ble Mrs. Justice B.V. Nagarathna

 

 Facts of the Case

In the wake of the 2002 Gujarat riots, Bilkis Yakub Rasool, a young pregnant woman, endured the unimaginable – a brutal gang rape fueled by communal hatred and the tragic loss of her entire family. The Central Bureau of Investigation took over the case, leading to charges against 20 individuals – including police personnel and doctors – for gang rape, murder, and rioting. The trial was eventually transferred to a neutral location due to safety concerns. Ultimately, 11 individuals were convicted and sentenced to life imprisonment. Now, she challenges the early release of 11 convicts, arguing for justice both for herself and all victims of the riots. Citing the gravity of the crimes, her own lasting trauma, and concerns for her safety, Ms. Rasool’s writ petition seeks to ensure continued imprisonment for the perpetrators and uphold the principles of accountability in the face of heinous communal violence.

After the petitioner- victim filed a transfer petition, the trial was transferred from Ahmedabad to the competent and neutral court in Mumbai. Even after the Special judge convicted the 11 accused and sentenced them to life imprisonment, the trial court thereafter acquitted the remaining 5 police personnel and 2 doctors. Against the trial court when the state filed criminal appeals before the Bombay High Court it upheld the conviction of 11 persons accused. The high court further claimed the improper investigation by the Gujrat Police.

Respondent no. 3 filed a criminal application before the Gujrat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of CrPC.            The Ministry of Home Affairs, Government of India conveyed its approval under Section 435 of the CrPC for the premature release of all 11 convicts.

This present writ has been filed to quash the orders of acquittal.

Legal Provision

Section 432 of CrPC –

Power to suspend or remit sentences.

When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

  1. Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the. presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
  2. In this section and in section 433, the expression” appropriate Government” means,-
  3. in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
  4. in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

Section 433 in CrPC –

Power to commute sentence —

The appropriate Government may, without the consent of the person sentenced commute

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for a fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for a fine;

(d) a sentence of simple imprisonment, for a fine.

Section 435 of CrPC states the powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence

Issue

  • Whether the writ petition filed under Article 32 of the constitution, is maintainable?
  • Whether the State of Gujrat had jurisdiction to entertain the prayers seeking remission of respondents?

Court Decision and Analysis

The Apex court held that the writ petition filed under Article 32 of the constitution, is maintainable and that the petitioner therein didn’t need to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court.

In view of Section 432 (7) read with Section 432 (1) and (2) of the CrPC, the court held that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Subsequently, the remission orders are illegal and therefore quashed.

The court further ruled that the May 13, 2022 judgment was null and void due to the party seeking it concealing and misrepresenting crucial information.

The Gujarat remission orders for the 11 convicts (10.08.2022) were unlawful due to:

  1. Usurpation of power: Gujarat lacked authority, Maharashtra governed.
  2. Inapplicable policy: Gujarat’s remission policy didn’t apply to convicts.
  3. Ignored opinion: The Mumbai court’s opinion (required) was disregarded.
  4. Unpaid fine: The fine imposed by the Mumbai court and confirmed by Bombay HC remained unpaid, invalidating remission.

The court held that the plea of ‘protection of liberty’ of the 11 respondents cannot be accepted and that the Rule of Law must prevail.

 Hence, the present writ petition was allowed in the aforesaid terms, and all other pending applications were disposed off.

 

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Written by- Bhawana Bahety

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One Can Not Be Punished Unless The Crime Is Proved Beyond Reasonable Doubt: High Court of Lucknow

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Citation: Criminal Appeal No. – 2899 of 2003

Coram: Hon’ble Ashwani Kumar Mishra & Hon’ble Syed Aftab Husain Rizvi

Decided on: 08.11.2023

Introduction:

 The present appeals have been filed on behalf of accused-appellants- Arvind Kumar, Surjeet, and Babloo, who have been convicted by judgment and order dated 30.05.2003 passed by Additional Sessions Judge/ F.T.C. First, Jalaun in Session Trial No.77 of 2000 (State of U.P. vs. Arvind Kumar and others) arising out of Case Crime No.337 of 1999, under Sections 376(2)(g) and 302/34 I.P.C., Police Station- Kuthond, District- Jalaun and sentenced the appellants to 10 years rigorous imprisonment & fine of Rs.5000/- under Section 376(2)(g) and life imprisonment & fine of Rs.5000/- under Section 302/34 I.P.C.

Facts:

 The F.I.R. of this case was lodged on 30.11.1999 at 19:45 P.M., under Section 376/302 I.P.C. against Surjeet, Arvind Kumar, Babloo, and Raj Kishore on the written information alleging therein that on 30.11.1999, the 13-year-old daughter of informant had gone to collect the grass with Ram Prasad, Babu, and Pramod Kumar. At about 5 P.M., the informant came near the Arhar field of Brij Bhushan Tiwari to collect the grass cut by his father where he heard the screams of his daughter from the Arhar field.

On hearing the screams, the informant, his father, Babu, and Pramod Kumar entered the Arhar field. They saw Surjeet, Arvind, Babloo and Raj Kishore were strangulating her daughter by tying her neck with a bed-sheet. On exhortation, the accused ran away. When the informant reached near the victim, she had died. The accused have also committed sexual assault on her because her private part was bleeding and semen spots were present on the clothes. On hearing the noise, several villagers came to the spot. The informant leaving his family members and other villagers beside the dead body, came to the police station to lodge the F.I.R.

The informant P.W.-1, in his examination-in-chief has stated that Surjeet, Babloo, Arvind Kumar, and Raj Kishore who live in his village Panditpur, sexually assaulted her 13-year-old daughter and committed her murder. The incident occurred in the Arhar field of Brij Bhushan Tiwari.

Babu P.W.-2 has not supported the prosecution case. The witness has stated that he knows the daughter of the informant and the accused. The daughter of the informant is not alive. He does not know what incident had occurred with her and how she died. Witness has denied that accused persons sexually assaulted the victim and committed her murder. The witness has been declared hostile. Witness in his cross-examination by the defence has stated that Munni Devi, the wife of Raj Bahadur has died on the date of the incident. Her last rites were performed at about 4 P.M. Babloo, Arvind and Surjeet were present in the last rites of Munni Devi.

Another evidence produced by the prosecution is recovery of slipper of right foot of accused Raj Kishore, on his pointing out from the field of Brij Bhushan Tiwari. According to prosecution the other slipper of the left foot, however, was found on the spot by the Investigating Officer during spot inspection.

Court’s Analysis Judgement:

From the analysis of evidence on record, it is clear that the sole testimony of informant P.W.-1, who is a chance witness, is not inspiring and trustworthy. There are serious discrepancies, which makes it highly doubtful that he has seen the occurrence. No doubt that the victim has been sexually assaulted and was strangled to death but it is not proved that appellants accused are the real culprits and they have committed the offence. Their false implication on the basis of suspicion or with ulterior motive cannot be ruled out. There is no sufficient evidence on record to prove the prosecution case beyond reasonable doubt.

The learned trial Court had failed to notice the serious discrepancies in the ocular testimony of informant P.W.-1, who is also a chance witness and has erred in relying on it. The finding of guilt returned by the trial Court on the basis of his testimony is not sustainable.

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Written by- Sushant Kumar Sharma

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The Additional District and Sessions Judge Ernakulam Court awarded death penalty to accused for rape- murder of a 5-year-old girl

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Title: State of Kerala v. Asafak Alam
Decided on: 14 November, 2023

+ Sessions Case No. 1385 of 2023

CORAM: HON’BLE Justice K. Soman
Introduction

The Additional District and Sessions Judge Ernakulam court stated that Ashfaq Alam, 28, was found guilty of raping and killing a 5-year-old kid in Aluva.

Facts of the Case

The five-year-old victim, who was originally from Bihar, lived in a leased home beside a road that ran parallel to the railroad track close to the garage railway gate in Choornikkara Village with her parents and brothers. The victim’s family rents a building nearby, and the accused lives in a different structure. Around 3:30 p.m. on July 28, 2023, the accused lured the victim girl with a sweet drink and led her to a nearby store. The victim was then brought by the accused to the waste material dump located at the southwest corner of the Aluva Municipal Market. There are shrubs there and the space is empty. The victim was given alcohol by the accused, who also caused her to lose consciousness. Afterwards, he penetrated the victim’s vagina with his penis and injured her private areas by inserting his fingers and penis into her anus, committing rape and aggravating penetrative sexual assault. Following his gratification of his sexual need, the accused strangled the victim girl to death using the victim’s T-shirt as a ligature in order to conceal the crime. Consequently, it is claimed that the accused committed the offenses listed above.

Courts analysis and decision

The accused’s crimes, the court said, demonstrated his paedophilic tendencies. The judge came to the conclusion that, considering the way he had abused the girl and injured her body, he should have been executed. The accused had a heinous criminal record, a vicious mentality, and complete contempt for human life, according to the court, which determined that this case qualified as the “rarest of the rare.” Alam was sentenced to life in jail for the child’s rape, while he received the death penalty for the murder charge.

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Written by- Hargunn Kaur Makhija

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Practice Of Lodging False FIRs Alleging Rape Has to Be Dealt With A Heavy Hand: Allahabad HC Imposes ₹10K Cost On A Woman

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CASE TITLE:   Shivam Kumar Pal @ Sonu Pal And 3 Others vs. State Of U.P. And 2 Others [CRIMINAL MISC. WRIT PETITION No. – 11560 of 2023]

DECIDED ON: 26.7.2023

CORAM: Hon’ble Anjani Kumar Mishra,J. Hon’ble Vivek Kumar Singh,J.

INTRODUCTION

Last week, the Allahabad High Court ordered a woman to pay a fine of Rs. 10,000. The woman had confessed to filing a false First Information Report (FIR) against four men, leveling charges of rape and unnatural sex against them.

The Court emphasized that the act of lodging FIRs with false and serious allegations of rape cannot be tolerated and should be severely dealt with.

FACTS

Subsequently, the Court granted approval to a writ petition filed by the four accused individuals, leading to the dismissal of the challenged First Information Report (FIR) registered against them. The FIR encompassed allegations under Sections 376, 377, 313, 406, and 506 of the Indian Penal Code (IPC).

The Court’s proceedings primarily revolved around the writ petition submitted by the accused, asserting that the FIR against them was fabricated and false.

Furthermore, the Court was informed that petitioner no.1 (one of the accused) and the first informant (who alleged rape) had entered into a lawful marriage as consenting adults, and they are presently leading a contented life together as husband and wife.

In addition, the Court learned that the first informant, who was the alleged victim, had addressed an application to the Commissioner of Police, Prayagraj, admitting that she had impulsively lodged a false FIR due to some disagreements that arose between her and petitioner no.1.

During the proceedings, the counsel for the alleged victim reiterated the arguments made by the accused persons’ counsel and presented the fact that the victim is currently residing with petitioner no.1, who is one of the accused, as his spouse. Based on this, the counsel sought the quashing of the writ petition.

CASE ANALYSIS AND DECISION

After carefully considering the arguments presented by both parties and examining the application filed by the alleged victim, the Court immediately observed that it was evident that the serious rape allegations made against the petitioners were entirely false. This led the Court to conclude that the false FIR had been filed with the intention of either exerting pressure on the petitioners or seeking revenge.

Emphasizing the gravity of lodging such FIRs with fabricated rape accusations, the Court granted the plea and imposed a penalty of Rs. 10,000/- on the alleged victim, instructing her to deposit the amount within ten days.

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Written by- Mansi Malpani

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