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Bilkis Bano and Nirbhaya: The reasoning behind “rarest of rare”
Posted:May 5, 2017
 
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There has been a lot of debate on the verdicts pronounced in the Bilkis Bano and Nirbhaya case and how the rapists of Bano were given life imprisonment instead of death penalty while Nirbhaya’s murderers will face the gallows. In both cases, the verdict of the lower court has been upheld by the Bombay High Court and Supreme Court in the Bilkis Bano and Nirbhaya case respectively. The moot question is whether the Bano case falls under the ‘rarest of the rare’ case?
 
The two judge bench of Justices VK. Tahilramani and Mridula Bhatkar hearing the Bilkis Bano case cited many instances to drive home the point about a thin line dividing an uncommon case from the rarest of the rare case. One of the cases mentioned was Ramnaresh & Ors. vs. State of Chhatisgarh (supra), where four persons who were guests of the neighbour, raped a woman which led to her death. In this case, the Supreme Court held, “it is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime for satisfaction of their lust but it cannot be held with certainty that this case falls in the rarest of rare cases.” The top court had commuted the death sentence to life imprisonment.
 
While comparing the Bano case with others, the court observed that there was no repetition of crime and the accused were not history-sheeters or hard-core criminals. The court said, “…though such crime is not justifiable and is shunned, we are of the view that it is not a case wherein the sentence imposed would be completely inadequate…” The other important point made by the court about Bano was, “she does not state that accused Nos. 1 and 2 murdered any of the persons in her group, nor does she say that accused Nos. 1 and 2 raped Halima or Shamim. As far as accused No. 4 is concerned, except for attributing role of murder of Saleha to him, no other role is attributed to him either of rape on anyone or murder of anyone. We also cannot be unmindful of the fact that the incident occurred in 2002, fifteen years have elapsed since then. These accused have been in custody all this while. Looking to this fact, after a gap of 15 years, we are not inclined to enhance the sentence.”
 
This is in stark contrast with the Nirbhaya case where Justices Dipak Misra, Ashok Bhushan and R Bhanumati concurred that it did fall in the rarest of the rare case. The court said, “The gruesome offences were committed with highest viciousness. Human lust was allowed to take such a demonic form. The accused may not be hardened criminals; but the cruel manner in which the gang-rape was committed in the moving bus; iron rods were … were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold wintery night of December, shocks the collective conscience of the society.”
 
There is no doubt that both cases had shocked the nation but both cases were different right from circumstances to the evidence produced. Five Gujarat policemen and two doctors have been handed out exemplary punishment in Bano’s case. For those who still believe Bano’s rapists got away lightly, the doors of the Supreme Court are still open.
 
The Times of India, May 6, 2017 
 
 
 
 
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