Physical injury is not essesntial for conviction of the accused in any Gang Rape case as per the Explanations to Sec. 375 & Sec. 376(2)(g) IPC. Therefore, the accused persons need to be charged separately for causing physical or mental injuries, which could be simple hurt (u/s 323/ 324 IPC), grievous hurt (u/s 325/ 326 IPC), murder (u/s 302 IPC), Homicide (u/s 304 IPC), use of assault/ force (u/s 354 IPC), or simple intimidation (u/s 506 IPC).
Let us take first some another case, where a man is injured with a rod in his abdomen, causing 90 % damage to his intestine, and his rib/ spine is also damaged. He is thrown out to some lonely place at around 10 PM in the night, believing that by morning he would die out of grievous injuries as a natural consequence. The victim is found NOT in Delhi, but in some remote area where access to commuters is also remote. The man dies. He is charged for murder. The accused persons take a plea that had he been taken to the Hospitals like AIIMS or Safdarjang Hospital, his life could have been saved. Hence, he pleads for Culpable Homicide not amounting to Murder. Whether his plea would be admissible?
No. Then I really fail to understand, why the accused persons in the recent Gang Rape case should not be prosecuted for Murder, although the victim is now saved by doctors only due to timely medical treatment by experts. The girl was not thrown near these hospitals, but in a remote area, that too at around 10 PM (dark night) of December winters, which is cold enough to keep the victim isolated from the commuters, and with all probabilities that by morning she would die as a natural consequence of the physical and mental injuries to the girl/ victim.
In murder, actual death of the victim is not essential. If the intention of the accused person is to cause death, or even otherwise, simply knowing that the injuries are so imminently dangerous that in all probabilities she would die in the ordinary course of nature, then then conviction for murder is fulfilled.
Sentence for murder u/s 302 IPC is Death, or Life imprisonment with Fine. And for Gang Rape u/s 376(2)(g) IPC, it is min 10 years Rigorous Imprisonment or Life imprisonment with Fine.
Therefore, combining the two, the present case merits for conviction of the accused for murder and gang rape, and the the offence being rarest of the rare case, the sentence of Death could also be awarded.
-- Advocate Mukesh Kumar