The three convicts - Vijay Jadhav, Kasim Bengali and Mohammed Salim Ansari - have challenged the order passed by the sessions court on March 21 allowing an application filed by the prosecution adding fresh charge under section 376 (e) of IPC against the trio.
The section provides for death punishment to those accused, who have been convicted earlier under section 376 of IPC for rape. The stringent section was added after the December 2012 Delhi gangrape case as part of the Centre's move to make anti-rape laws tough.
The prosecution filed the application soon after the trio was held guilty in two different cases of rape - one filed by a telephone operator and another by a photojournalist. The three convicts in their petition in the high court have also challenged the constitutional validity of section 376 (e).
"The section is unconstitutional and illegal. The sessions court passed the order allowing framing of additional charges without hearing the defence," advocate Moin Khan, appearing for one of the convicts, said. The petition was mentioned before a division bench of Justices N H Patil and A M Thipsay, which has posted it for hearing during the day.
After the sessions court allowed the prosecution application, the prosecution examined two witnesses. The defence refused to cross examine the witnesses and sought time to approach the high court yesterday.
The 22-year-old magazine photojournalist was gangraped by Jadhav, Bengali, Ansari, Siraj Rehman and a minor boy when she had gone to the Mills compound in the central Mumbai with a male colleague on an assignment on August 22, 2013. The trio have already been convicted and sentenced to life imprisonment in the case related to gangrape of an 18-year-old telephone operator which had taken about a month before the photojournalist's gangrape last year.
According to prosecution, this qualifies them for punishment under the amended section.