II Year B.A., LL. B (Div.

- E) – Semester-III (2021)
1ST -Internal Assessment

Law of Crimes Paper I: Indian Penal Code

IRAC ANALYSIS
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NAME: YASH VERMA

DIVISION: E
PRN: 20010125479
COURSE: BA LL.B. (H)
BATCH: 2020-2025
 Mukesh and Anrs. Vs NCT Delhi 2017) 6 SCC 1

ISSUES
A twenty-three-year-old woman, a para-medical student, who had gone with her companion
to watch a film at PVR Select City Walk Mall, Saket (New Delhi), on the cold night of 16
December 2012, they took bus from “Munirka bus stand” and to be dropped at a specific
spot; One of accused persuaded them to get on a vacant transport with coloured/tinted
windows. Where they were attacked by six guys, one of whom was a minor, aged 17. The
companion of Nirbhaya, when he attempted to secure her was pummeled and beaten by the
culprits. Nirbhaya was explicitly damaged and sexually violated, her body was mutilated, and
private parts were ruptured. Her intestinal tracts were pulled out, and private parts were
ruined and mutilated by six men in a moving bus. The companion of the young lady was able
to survive regardless of being tossed outside the bus alongside the young lady and the
endeavour of the charged appellants to run over them got vain as Nirbhaya and her
companion, by their slight movement, could escape from being squashed under the bus, and
the appellants left them believing that they were not anymore alive. Lying exposed, as the
garments were expelled from their bodies, the late night patrolling vehicle, a motorcycle,
showed up and the said man, Raj Kumar, gave the shirt to her companion and reached the
control room from which a Bolero watch van came and they brought a bed sheet and torn it in
two sections and gave a piece to each so that they could cover themselves and feel civil. The
PCR van took the victims to the Safdarjung Hospital where treatment initiated. Later,
Nirbhaya died of various organ failure, internal bleeding, and cardiac arrest on the 29th
December, at a hospital in Singapore where she had been taken to with the expectation that
her life could be saved. There was a great deal of social shock because of the gruesome
occurrence. There was a great deal of candlelight march, solidarity movements, and protests.
The shock was not confined to India, the entire world had formed an opinion about India.

ISSUES RAISED
1. Whether rape as defined under section 375 of the IPC covers the offence
entirely?
2. Whether death penalty can be given to the convicts as punishment for such
heinous crime?
3. Whether a juvenile committing the offence should get punishment equivalent to
the adult?
4. Whether public outrage can influence the judgement in a case?
5. Whether the sexual offences against women is tried appositely in India?
 CONTENTIONS FROM BOTH THE COUNSEL (DEFENCE/PROSECUTION)

The contention of the defence counsel was that the DNA report was deficient and contended
that DNA test can’t be treated as precise as the victim had experienced blood transfusion
during the treatment and when there was a transfusion of blood, DNA profiling was probably
going to vary. The contentions of the defence counsel that the bite marks were stage-
managed. The contention of Defence counsel was that the victim could not have given any
dying declaration because of her health condition. The defence counsel and amicus curiae
were reproachful of the withering announcements, saying they ought not to be considered as
they do not rouse certainty due to irregularities and enhancements in them. They also argued
that the third dying declaration made through signals needs believability and it ought to have
been video-charted, needs substance. Convicts Pawan Kumar Gupta and Vinay Sharma had
asserted that on the night of December 16, 2012, they were in the DDA District Park in Hauz
Khas territory of South Delhi viewing a melodic occasion sorted out regarding Christmas
festivity and they were not in the transport and had not committed any offence with the lady
or her companion. Third convict Akshay Kumar Singh alias Thakur had guaranteed that he
was not in Delhi the evening of the episode and left for his town in a train a day prior on the
ticket of his sibling Abhay, alongside his sister-in-law and nephew. The defence witnesses
brought by him were his family members including his significant other and, as saw by the
preliminary court and high court, they attempted to wriggle him out of the chaotic
circumstance, similar to the regular impulse of the family members. The seat saw that the
DNA profile created from the bloodstains acquired from the iron poles was predictable with
the DNA of the person in question. The defence counsel had asserted that the police had
created the tale about utilization of iron poles, as neither the casualty nor her companion, who
was likewise ambushed inside the transport, had referenced about it in their first
proclamations and were not mentioned in the  FIR. The contentions of the defence counsel
that utilization of iron poles was not referenced in the FIR, the convicts claimed that their
names were not at first referenced in the FIR. They argued that Batla house blamed got life;
was let off because of governmental issues, why death for this assault accused at this point?
The counsel asked that Why Parliamentarians charged in dacoity, assault and murder are not
attempted by fast track courts?  they mentioned that Poor get imprisoned as they cannot
employ great legal advisors. in their defence, they argued that Convict Vinay Sharma is a
decent student and has applied for the Air Force and did not commit the crime.Akshay is
liable for his evil guardians, spouse, and youngster. He ought to be indicated benevolence.
Invoking Mahatma Gandhi’s name, legal advisor A P Singh says, “God gives life and only he
can take it and not man-made courts” Life imprisonment is the standard, and death
punishment is a special case.  Death is irreversible; the purpose of justice is reconciliation and
reform. All the arguments of the defence counsel were rejected by the supreme court and the
prosecution has made it very clear that it needs death punishment for all the four convicts.
The prosecution has contended that there is no motivation to show the convict’s benevolence.
The prosecutor says they have killed a vulnerable young lady when even she asked for mercy.
The prosecutor says there ought to be ‘no benevolence for cruel convicts’. The crime
committed by them was against the society.
Cases relied while giving the judgement
1. In Bachan Singh v. State of Punjab

2. In Machhi Singh vs. State of Punjab, the court emphasized that the humanistic edifice
forms the basis of the concept of “reverence for life.
3. In the case of Devender Pal Singh vs. State(NCT of Delhi), it was held that if the
community’s collective conscience is so shocked, the court must pronounce the death
penalty.
4. In the case of Ram Singh vs. Sonia & Ors, it was held that it would be a failure in the
system of justice to not hand out the death penalty, in a case where the crime was
most grotesquely and revoltingly committed.
5. In the case of C Munniappan vs. the State of Tamilnadu, it was held that the death
penalty should be given in the manner the offence is committed.
6. In the case of  Ajit Singh Harnamsingh Gujral v. State of Maharashtra, it was held
that there is a need for a distinction to be made between ordinary murders and
grotesque, ghastly or horrific murders.
7. In the case of Sunder vs. State, it was held that the aggravating factors include if the
accused was found guilty of two heinous offences, which are independent of one
another, provides for the death penalty; no prior enmity between the two sides, no
extreme and sudden provocation that compelled the accused to take a life;  or a
serious mental perversion; as well as the brutality of the crime.
Coming to the issues that were raised by the convict’s counsel, one must know that the SC
had repeatedly held that the accused’s young age is not by itself a determining factor against
the death sentence being awarded. Instead, all the conditions must be taken together, and the
proper weighing of each situation is needed. 
The Supreme Court instead re-held that the death sentence can be given despite the convict’s
young age. This can be seen in the case of Mohammad Ajmal Kasab vs. State of
Maharashtra  and  Atbir vs. State(NCT of Delhi). 
The convict’s socio-economic status or the say that the crime was committed in the state of
intoxication, can not be the deciding criteria in sentencing as it was held in the case of  State
of Karnataka v. Krishnappa. Measurement of penalty in the context of rape can not be based
on the social standing of the convicts or accused. 
Ultimately, the plea of convict Mukesh was that by acknowledging that he was present inside
the bus he had helped the system. This was seen as to seek misguided compassion, as he took
this contradictory stand in his declaration under Section 313 Cr.P.C, to protect himself after
the sequence of events that had already been proved against him.
The Court also relied on the case of Gurvail Singh & Anr. vs. State of Punjab, where it was
held that to impose the death penalty, aggravating circumstances (crime test) must be
completely met and no mitigating circumstance (criminal test) in favour of the accused
should be present.
JUDGMENT OF THE CASE
The court held that there should be consideration of both mitigating and aggravating factor
and there should be a balance between the two. In this case there were mitigating factors like
the dependent and ailing parents, the age of the convicts, behaviour in jail, no criminal
antecedents, post-crime remorse but the aggravating factors outweighed them. The court held
that the conspiracy involving gang rape and murder inside moving bus was brutal, barbaric,
and diabolic and the victim’s companion was assaulted and brutally beaten and robbed.
Moreover, they tried to run the bus over her after throwing them out of the bus naked on a
wintery night.  The evidence clearly displayed that the victim’s internal organs were
perforated and slayed open due to repeated insertion of iron rods and hands and caused grave
injuries to the victim who later succumbed to her injuries. The convicts had also tried to
destroy evidence by washing the bus and burning the clothes of the deceased after that they
distributed the loot among themselves which confirms death sentence. A committee was
formed and criminal law (amendment) act, 2013 was enacted to tackle sexual offences
effectively. The court mentions that the mitigating circumstances were not enough to take the
case out of the category of rarest of the rare case and hence, affirmed death sentence.

Changes in the Indian Penal Code, 1860

 Insertion of Section 166A which covers the offence of Disobedience of law by a
public servant. After the amendment Act, it is made punishable with rigorous
imprisonment for 6 months to 2 years and liable to fine.
 Insertion of Section 326A and B which cover the issue of Acid attack. The
amendment Act has made it a Specific Offence under the act, punishable with 10
years Imprisonment extendable to life imprisonment or fine or both.
 Insertion of Section 354A which deals with Sexual harassment and punishment for the
same. 
 Insertion of Section 354B which covers the offence of compelling a woman to remove
her clothes.
 Insertion of Section 354C which covers the offence of Voyeurism i.e. watching a
woman when she is engaged in some private act including sexual acts or when her
private parts are exposed.
 Insertion of Section 354D which covers the offence of stalking.
 The Age of consent has been enhanced from sixteen years to eighteen years. 
 The definition of rape has been widened after the Nirbhaya Case.
 The Amendment Act has included more actions under the purview of what constitutes
rape such as unconsented penetration of mouth, urethra, vagina, anus with the penis or
other objects by anyone and unconsented application of mouth to vagina, urethra and
anus. 
  Insertion of Section 376 (2)(c) which covers the offence of Rape by personnel of
armed forces.
 Insertion of Section 376A which deals with the Rape resulting in death or vegetative
state.
 Insertion of Section 376D which deals with the crime of Gang rape.

CONCLUSION
This case brought many legal and social reforms in the country. Both the centre and different
states proposed several significant actions to guarantee women ‘s protection in the region. For
example, the Karnataka government launched a 24/7 dedicated helpline to help women lodge
any grievance against any form of sexual harassment. 
Fast-track courts were established to dispose of pending lawsuits and to provide the victims
with urgent legal assistance. The description of rape was limited only to sexual
intercourse. The 2013 Criminal Law (Amendment) Act gave the word rape a more general
definition. It amended the interpretation provided for in IPC Section 375. 
Since the amendment, Section 375 of the IPC describes rape as any unwanted and coercive
intrusion without the consent of the woman into the parts of the woman’s body, such as the
vagina, urethra, mouth or anus. Justice Verma Committee was set up that had suggested
many reforms.
The basic premise of natural justice is that everybody deserves the defence. The convicts can
file an appeal against the decision and a court order within the time limit i.e within a period
of 30 days as provided for in Article 115 of the 1963 Limitation Act. Beside all reforms, this
case will also be remembered as the case where the accused have systematically manipulated
the judicial process and tested the country’s tolerance. 
The convicts can not be hanged until the last person on the death row has exhausted his
remedies, as per the SC judgment in the case of  Harbans Singh vs. State of UP &
Ors. Hanging has to happen one by one. All who have exercised their legal options should be
hanged. In the same situation, one convict deliberately causes the delay in filing the petition
and makes others wait, a nice way to extend the date of hanging. This case exposed the
loopholes which exist in our legal system.