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. This leaves a window open for the accused to argue before the trial court that the prosecution was not right in invoking section 376 E in the case.
The high court also issued notice to the attorney general on the challenge to the constitutional validity of section 376 E of the Indian Penal Code that presecribes a maximum punishment of death sentence for a second time offender in rape cases.
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.
Advocate general Darius Khambata 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 376 e in the photo journalist rape case after they were convicted in the telephone operator rape case was questionable.