SC: S.376A IPC includes death by any act of accused if occurring with rape

The Hon’ble Supreme Court, on 3rd October 2019, in the matter of Ravishankar @ Baba Vishwakarma v. The State of Madhya Pradesh pronounced that under Section 376A of I.P.C., only the factum of death of the victim during the offence of rape is required, and such death need not be with any guilty intention or be a natural consequence of the act of rape only. It is worded broadly enough to include death by any act committed by the accused if done contemporaneously with the crime of rape.

The Hon’ble Supreme Court observed that: 

It would be totally imprudent to lay down an absolute principle of law that no death sentence can be awarded in a case where conviction is based on circumstantial evidence. Such a standard would be ripe for abuse by seasoned criminals who always make sure to destroy direct evidence. Further in many cases of rape and murder of children, the victims owing to their tender age can put up no resistance. In such cases it is extremely likely that there would be no ocular evidence. It cannot, therefore, be said that in every such case notwithstanding that the prosecution has proved the case beyond reasonable doubt, the Court must not award capital punishment for the mere reason that the offender has not been seen committing the crime by an eye-witness. Such a reasoning, if applied uniformly and mechanically will have devastating effects on the society which is a dominant stakeholder in the administration of our criminal justice system. (Para 54)

A bare perusal of the Section 376A of the I.P.C. shows that only the factum of death of the victim during the offence of rape is required, and such death need not be with any guilty intention or be a natural consequence of the act of rape only. It is worded broadly enough to include death by any act committed by the accused if done contemporaneously with the crime of rape. Any other interpretation would defeat the object of ensuring safety of women and would perpetuate the earlier loophole of the rapists claiming lack of intention to cause death to seek a reduced charge under Section 304 of I.P.C. (Para 60)

Use of such ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free. (Para 62)

However, death being irrevocable, there lies a greater degree of responsibility on the Court for an indepth scrutiny of the entire material on record. Still further, qualitatively, the penalty imposed by awarding death is much different than in incarceration, both for the convict and for the state. Hence, a corresponding distinction in requisite standards of proof by taking note of ‘residual doubt’ during sentencing would not be unwarranted. (Para 63)

Copy of judgement: Judgement_03-Oct-2019

-Adv. Tushar Kaushik 

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