Public prosecutor Ujjwal Nikam outside the sessions court on Monday. Ganesh Shirsekar Public prosecutor Ujjwal Nikam outside the sessions court on Monday. Ganesh Shirsekar

The sessions court Monday accepted the prosecution’s plea seeking application of Section 376 (E) of the Indian Penal Code against three of the four persons who were convicted for the gangrape of a 23-year-old photojournalist at Shakti Mills compound. While the court was yet to pronounce the quantum of punishment in the case, the prosecution sought application of this section citing that the three convicts were “habitual offenders”.

This paves the way for the prosecution, if it so desires, to seek death penalty against the three.

Vijay Jadhav (18), Mohammed Qasim alias Bangali (20) and Salim Ansari (27) are also accused of raping a 19-year-old telephone operator on the same mill premises in Mahalaxmi in July last year. They were convicted and sentenced to life term in this case.

As per the Criminal Law (Amendment) Act, 2013, Section 376 (E) is applicable in cases where a person has been previously convicted for an offence punishable under IPC Section 376, 376A or 376D, and is subsequently convicted of an offence punishable under any of the said sections, and the person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

The court framed fresh charge against the trio and adjourned the case till Tuesday for further hearing on the added charge.

The defence lawyers, however, informed the court that they would move Bombay High Court against the decision to allow a new section at this juncture.

The photojournalist was sexually assaulted by five men, including a minor. While the minor is facing charges before the Juvenile Justice Board, another convict Siraj Rehman (24), will not be tried under the enhanced section as he was not involved in the gangrape of the telephone operator.

Public prosecutor Ujjwal Nikam said the Criminal Law (Amendment) Act, 2013, called for stricter punishment for repeat offenders. He said the case fit the definition of “previous conviction and subsequent conviction”, considered important to attract the enhanced charge.

Defence lawyer Prakash Salsingekar said the trials in the two gangrape cases, that were conducted simultaneously, were intentionally carried out in a way that the sentence in the case of the telephone operator was pronounced before the photojournalist’s case. “The photojournalist’s case came to light earlier. The chargesheet was filed earlier in this case. But the prosecution proceeded with the telephone operator’s case first so that the verdict was pronounced in that case first, paving the way for the prosecution to press for section 376 (e) of IPC,” Salsingekar said.

The other defence lawyers also objected to additional charges being applied at this juncture in the trial.

Majlis, a women’s organisation, which has been providing social and legal support to both victims, has condemned the prosecution’s move. Pointing at the age of the convicts, one of whom is a 19-year-old, Majlis claimed in a press statement that women’s organisations have stood firmly against the death penalty. “While we condemn all kinds of sexual violence and will continue to provide care and support to victims, we stand strongly against death penalty,” the press note stated.

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