Court No-6
Bench: HON’BLE JUSTICE B.V NAGARATHNA
HON’BLE JUSTICE UJJAL BHUYAN
Item No- 08
(Crl.) No.118 Of 2003
Case details:
The petitioner of this case, Bilkis Yakub Rasool was brutally and mercilessly gang-raped namely, during the Gujrat communal riot in 2002, who was 5 months pregnant at the time of this fiendish circumstance and also her entire family was cruelly murdered in front of her eyes by those same men who gang raped her. The mother and cousin of the petitioner was also gang-raped and murdered by those same men. The cousin of the petitioner at the time of that diabolic event was also recovering from her recent pregnancy and the newborn was even murdered, including seven other minors of the family. The three-year-old daughter of the petitioner (Bilkis Yakub Rasool) was murdered by her head being smashed on a rock. The petitioners’ two minor brothers and two minor sisters were even murdered including the phupa (uncle), phuphi (aunt), mama and three other cousins of the petitioners were all murdered.
Facts:
Bilkis Yakub Rasool, was a 19 years old pregnant woman who was gang-raped by some unknown men along with her mother and cousin who were later murdered by those same men. The diabolic incident took place on 03-03-2002, during the Gujrat riot when Bilkis was travelling to her native place along with her family. Bilkis was mercilessly gang-raped in front and presence of her husband and her family members. Seven other family members of Bilkis were murdered, which also included her daughter and new born of her cousin. Bilkis suffered various severe injuries which also includes miscarriage and a broken spine. 20 unknown men were accused in the case. Among the accused men were 6 police officers, 2 doctors and some political leaders. On 04-03-2002 a FIR was registered regarding the case against the unknown accused men. Initially the local police officers were refusing to register a complaint and tried to cover up the incident. A closure report was filed stating that no traces of the accused was found and it was also accepted by the Judicial magistrate on 25.03.2003. The court transferred the case for further investigation to the Central Bureau of Investigation (CBI). On 19.04.2004 a chargesheet was submitted against the accused with charges of gang-rape, murder and rioting. The case was later transferred to Mumbai on 06.08.2004 from Gujrat by a transfer petition filed by the petitioner. 11 accused men out of the 20 were convicted to imprisonment by the Mumbai High Court. Later, the Gujrat High Court granted remission to the 11 accused which was declared nullified by the Supreme Court.
Issues raised:
The Bilkis Yakub Rasool case raises several issues:
- Justice and Accountability of Court?
The case highlights the struggle for justice and accountability for victims of sexual violence and communal riots. The case is a reminder of the horrors of communal violence and the need for reconciliation and peace.
- Was Women’s Rights upheld in this case?
The case emphasizes the importance of protecting women’s rights and dignity, particularly in situations of violence and conflict.
- Impunity by the state of Gujrat?
The case raises concerns about impunity for perpetrators of violence and the need for the state to ensure that those responsible are held accountable.
- Rule of Law in this case?
The case highlights the importance of upholding the rule of law and ensuring that the legal system functions fairly and impartially.
- Concerns regarding Human Rights?
The case raises concerns about human rights violations, particularly the right to life, dignity, and justice.
- Responsibility of the state of Gujrat?
The case emphasizes the responsibility of the state to protect its citizens, particularly vulnerable groups, from violence and harm.
- Access to Justice by some communities?
The case highlights the importance of access to justice for marginalized communities and the need for a robust and responsive legal system.
These issues are significant not only for India but also for other countries grappling with similar challenges. The Supreme Court has directed the Central Bureau of Investigation (CBI) to inquire further into the Bilkis Bano case. The court convicted the 11 men to life imprisonment for the rape of Bilkis Yakub Rasool and murder of her seven family members.
Court observed: The Supreme Court passed an order saying that the 11 convicts had obtained remission by fraud as the Gujrat Court were not the appropriate Authority to give orders upon the Bilkis Bano case as the case was already transferred to the Bombay court thus, the convict’s remission was declined by the Supreme Court.
Trial Court (2008):
- “The prosecution has proved the charges against the accused beyond reasonable doubt.”
- “The crime was committed with a ‘common intention’ and ‘premeditation’.”
Gujarat High Court (2016):
- “The crime was committed with a ‘high degree of depravity and brutality’.”
- “The accused did not deserve any leniency or mercy.”
Supreme Court stated (2022):
- “The remission order is a ‘non-speaking order’ and reflects ‘complete non-application of mind’.”
- “The Gujarat government’s decision to grant remission is ‘arbitrary’ and ‘illegal’.”
- “The state of Gujarat did not have the authority to grant remissions as the trial was held in Maharashtra.”
The contentions:
Prosecution’s Contentions:
The accused persons committed gang rape of Bilkis Yakub Rasool, who was five months pregnant at the time, her cousin, who had recently given birth, and mother and murdered other family members including minors of the family and a new born. The crime was committed with a common intention and premeditation. The accused persons were identified by Bilkis and other witnesses. The investigation was conducted fairly and impartially.
Defence’s Contentions:
The accused persons were not involved in the crime. The investigation was biased and tainted by political influence. Bilkis’s identification of the accused was not reliable. The evidence presented was not sufficient to prove the charges beyond reasonable doubt.
Appeal’s Contentions:
The trial court erred in convicting the accused persons. The High Court erred in upholding the convictions. The Supreme Court should set aside the convictions and order a retrial.
These contentions highlight the key arguments made by the prosecution, defence, and appeal parties in the Bilkis Yakub Rasool case, which ultimately led to the Supreme Court’s decision to overturn the remission order and restore the convictions.
The remission defect of law in the Bilkis Yakub Rasool case refers to the legal flaws in the Gujarat government’s decision to grant remission to the convicts. The Supreme Court identified several defects, including:
1. Lack of jurisdiction: The Gujarat government did not have the authority to grant remission, as the trial was held in Maharashtra.
2. Non-application of mind: The government’s decision was deemed arbitrary and without proper consideration of the case’s facts and circumstances.
3. Violation of Section 432(2) of the CrPC: The government failed to provide adequate reasons for granting remission, as required by law.
4. Contrary to established policy: The remission was granted contrary to the established policy of not granting remission in heinous crimes like rape and murder.
5. Without considering the trial court’s views: The government did not consider the trial court’s views on the severity of the crime and the need for punishment.
These defects of law led the Supreme Court to set aside the remission order and restore the convictions, ensuring that justice was served in the case.
1. Lack of jurisdiction: The Gujarat government did not have the authority to grant the award of remission, as the trial was held in Maharashtra High Court.
2. Non-application of mind: The government’s decision was deemed arbitrary and without proper consideration of the case’s facts and circumstances.
3. Violation of Section 432(2) of the CrPC: The government failed to provide adequate reasons for granting remission, as required by law.
4. Contrary to established policy: The remission was granted contrary to the established policy of not granting remission in heinous crimes like rape and murder.
5. Without considering the trial court’s views: The government did not consider the trial court’s views on the severity of the crime and the need for punishment.
These defects of law led the Supreme Court to set aside the remission order and restore the convictions, ensuring that justice was served in the case.
SNEHA PAUL
SISTER NIVEDITA UNIVERSITY
BBA-LL. B Hons
4TH YEAR