Both, the prosecution and the defence sought an adjournment as they wanted to wait for a copy of the Bombay high court order passed on Thursday on a defence plea against the addition of an extra charge under section 376E of Indian Penal Code by the trial court. The section deals with punishment for repeat rapists. The maximum punishment is death.
The high court on Thursday declined to interfere in the Shakti Mills gang-rape case of photojournalist at this stage. Hearing a petition filed by the accused challenging the adding of charges that attract the death penalty, a division bench of Justice Naresh Patil and Justice Abhay Thipsay said that the accused could raise the issue of whether the charges were properly added before the trial court.
The high court also issued notice to the attorney general on the challenge by the accused to the Constitutional validity of section 376 e that allows a maximum punishment of death for a repeat offender.
Vijay Jadhav, Qasim Shaikh and Salim Ansari who were held guilty of raping a photo journalist approached the high court on Wednesday morning following the trial court's order to add charges under section 376 E of the Indian penal Code, as they were also convicted for raping a telephone operator. They have also challenged the constitutional validity of the provision introduced last year.
The advocate general said that since the sentence was not pronounced in the photo journalist's case the law allowed the trial court to add charges and consider the previous conviction to punish the trio for being repeat offenders. He said that only after a punishment is awarded that a judgment can be said to have been pronounced.
Defence lawyers Moin Khan and R Gadgil opposed this and they claimed that judgments in both cases were pronounced on the same day with a few minutes of each other.
Advocate Aabad Ponda, who was appointed as an amicus curiae (friend of the court) to assist the court said that the use of 376E in the photojournalist rape case after they were convicted in the telephone operator rape case was questionable.
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