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Rape: Challenges Before The Indian Judiciary And Society

Rape: Challenges Before The Indian Judiciary And Society.
As an institution, the Indian judiciary has always commanded considerable respect from the people of this country. The roots of this high regard lie in the impartiality, independence and integrity of the members of the judiciary. Respect for the judiciary was part of the common man's aspirations for maintaining Rule of Law and building a just society. The deeper aim of the law was creation of a good society.

The judiciary could neither prevaricate nor procrastinate. It must responded to the knock of the oppressed and the downtrodden for justice by adopting certain operational principles within the parameters of the Constitution and pass appropriate directions in order to renderful and effective relief. Judicial activism generally encompasses an area of legislative vacuum in the field of human rights

The Constitution has paved the base of equal status and number of legislations has provided protection as well as support to the women in our country. [1] The positive result can be seen and felt in all the walks of life around us. The status of women in our country has risen to the present level which may not be up to the mark but still satisfactory. The present status is owed not only to our Constitution and the legislations but to the active judiciary as well as public spirited people who successfully manoeuvred the status of women of our country to the present level. The unbiased and independent judiciary has always played the role of a true guardian of justice.

Since independence many a times the judiciary has pro-actively interpreted and amplified the ambit of legislative provisions in favour of the unprivileged half of the society, i.e., the women of our country. Sometimes, these actions have been initiated by the public spirited people with the help of PILs (Public Interest Litigations). These Public Interest Litigations have strong reformist kind of public opinion behind them.

Judicial Approach towards sexual offences

State of Maharastra v. Madhukar N. Mardicor [2] was appreciated, as the court responded to the voice of a women activist. The Apex Court in this case laid down that even a prostitute has a right to privacy-the unchastely of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law.

Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown aside. At the most the officer called upon to evaluate her evidence would be required to administer caution unto him before accepting her evidence. In the circumstances of the case however there was sufficient corroboration of the fact of a police inspector's attempt to bend her by force to submission which evidence was generated by the inspector's unsuccessful bid to camouflage the incident into a prohibition raid.

In the State of Rajasthan v. Noore Khan [3] it was laid down that there is no rule of law that testimony of a rape victim cannot be acted upon without corroboration in material particular. Here testimony has to be appreciated on the principle or probabilities just as the testimony of any other witness, where a high degree of probability has been shown to exist in view of the subject matter of a criminal charge.

In Rafiq v. State of U.P,[4] Justice Krishna Iyer said:
When no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her she cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by victim strikes a judicial mind as probable.

when a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame…..judicial response to human rights cannot be blunted by legal bigotry.

The observance made by the Supreme Court in various cases is not without a word of caution as is evident from Dilip v. State of Madhya Pradesh [5] -It is well settled that the sole testimony of the prosecutrix could be acted upon and made the basis of conviction without being corroborated in material particulars. However, the rule about the admissibility of corroboration should not be ignored by the courts in sexual offences.

In Bhupender Sharma v. State of Himachal Pradesh [6] the court held that -To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime why should the evidence of the girl or the woman who complains of rape or sexual molestations be viewed with the aid of spectacles filled with lenses tinged with doubt, disbelief or suspicion.

The Supreme Court again in Sri Narayana Saha v. State of Tripura [7] held that -The Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless corroborated. If the prosecutrix is an adult of full understanding, the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. Non-corroboration by medical evidence and minor discrepancies in her evidence which was recorded seven years after occurrence would be of no consequence.

The discretion to allow any particular person to have access to the proceedings of the court rests with the presiding judge. The court can do so on an application from the person desiring to be present at the proceedings when the proceedings are being held in camera it shall not be lawful for any person to print or publish any matter relating to such proceedings, except with the previous permission of the court. Any person who prints or publishes the name or any matter which may make known the identity of any person against whom an offence of rape has been alleged or found to have been committed, shall be punished with fine and imprisonment.

The need for a new law on sexual assault was felt as the present law does not define and reflect the various kinds of sexual assault that women are subjected to in our country.

The Supreme Court in Sakshi v. Union of India [8] had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes.
In the infamous crime occurred in the capital of India (Nirbhaya case), occurred on 16.12.2012, a two judge bench of the High Court of Delhi [9] while confirming the death penalty on the appeal petition filed by the four offenders observed that “In an epoch when sexual assaults and ravishments are the order of day, when young men (and even old ones) revel in public declaration of their promiscuous pursuits, when not only the streets but schools, colleges and workplaces are approached by the vulnerable with trepidation and even the judge has to be sensitized to gender issues, the rape of a young girl hardly out of her teens, would have gone unnoticed as scores of other violations of infants, girls and women, but for fact that a public outraged at the manner in which the entrails of the ravished were culled out of her body, leaving her to die, stripped of all human dignity, completely unuttered, in the darkness of a wintry night, on a thoroughfare, took to the streets in their quest for justice.

This had the trigger effect of impelling the investigative agencies into using such tools of investigation as had lain in their tool-kit hitherto before practically unused, to nail the culprits. Did they indeed manage to foist the guilt on the guilty is the subject matter of the present death reference and appeals. But before delving any further into this arena, it is deemed appropriate to delineate the stark facts, as nearly as possible, in the order of their occurrence”.

In State of Karnataka v. Mahabaleshwar Goury,[10] the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board. In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution. [11]

In the case of Prem Chand v. State of Haryana [12] the Supreme Court reduced the minimum sentence of 10 years for rape to 5 years on account that the raped girl was a woman of easy virtue. This again caused an agitation and criticism by women organisations which resulted in filing of a review petition. The petition failed to sustain as the Apex Court just clarified position.

In State of Karnataka v. Mahabaleshwar Goury a Naik [13] the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board. In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution.

In spite of the decision of this Court that (depending upon the circumstances of the case) corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of “consent” by the Courts who tried the offence. [14]

In the case of Ankaria v. State of Madhya Pradesh [15] the accused loosened the cord of the prosecutrix and was about to sit on her waist when she cried for help. It was held that he was to be convicted for an offence under section 354 and not for rape. It was not even attempt to rape, but only a preparation.

In a similar case where the accused caught hold of a married woman and tried to open her salwar and ran away when she hit him with a kulhari, it was held that he could not be convicted under section 376 IPC read along with section 511 IPC, as his action did not show a determination to have sexual intercourse at all events and in spite of resistance. The conviction of the accused was accordingly changed to one under section 354 IPC.

The Supreme Court in Vishakha Case [16] has defined the word “sexual harassment”. The court opined that sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
  • Physical contacts and advances;
  • A demand or request for sexual favours;
  • Sexually coloured remarks;
  • Showing pornography;
  • Any other unwelcome physical verbal or non-verbal conduct of a sexual nature.
On the question of “is sexual harassment of women at place of work has been recognized as an infringement of the fundamental right of a woman under article 19 (1) (g) of the Constitution of India-to practice any profession or to carry out any occupation, trade or business. Women have to work at home, sometimes with family members or alone, it has been found, when they are working alone, there is possibility of being sexual harassment by male employee, employer or any other stranger at working place. There was no specific law to deal with the problem. With the increasing awareness and emphasis on gender injustice and also the increasing effort to guard against such problems, a question was raised before the Hon‘ble Supreme Court in the form of a Writ Petition for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in 1997.

On the year 1990 in a brutal gang rape was committed on an employee at the working place of a Rajasthan State Government, where she tried to prevent child marriage as part of her duties as a worker of Women Development Programme. The feudal patriarchies who were enraged by her (in their words - a lonely women from a poor and potter community) guts decided to teach her a lesson and raped her repeatedly. [17] After an extremely humiliating legal battle in Rajasthan High Court, the rape survivor did not get justice and the rapists -educated and upper caste affluent men-were allowed to go free.

The Apex Court held in Vishakha v. State of Rajasthan[18] that -It shall be the duty of the employer or any other responsible person in work places or other institution to prevent or detect the commission of acts or sexual harassment by taking all steps required. The court also has laid down the guidelines under Article 141 of the Constitution to prevent Sexual Harassment of working women in the place of their work until legislation is enacted for the purpose.

The Supreme Court has laid down the following guidelines under Article 141 of the Indian Constitution to prevent sexual harassment of working women in the place of their work until legislation is enacted for the purpose. It is necessary and expedient for employers in work places as well as other responsible persons or institution to observe certain guidelines to ensure the prevention of sexual harassment.

It shall be the duty of the employer or any other responsible person in work places or other institution to prevent or direct the commission of acts of sexual harassment by taking all steps required. These guidelines are enforceable as law till legislation is enacted”. The Hon‘ble Supreme Court held that these guidelines and norms would be strictly observed in all works places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

Based on the verdict of the Supreme Court the government enacted an Act called The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013.
Another remarkable decision in the Delhi Domestic Working Women's Forum v. Union of India [19] clearly highlights the judicial sensitiveness towards this heinous crime.

In this verdict the Court observed that:
It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour values and generating and less fears. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings.

Apart from the above, this Court has the inherent jurisdiction to pass any order it consists fit and proper in the interest of justice or to do complete justice between the parties. Having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisattwa Gautam had married Subhra Chakraborty before the God he worshiped by putting Varmilion on her forehead and accepting her as his wife and also having impregnated her twice resulting in abortion on both the occasions, we, on being prima-facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam shall pay to SubhraChakraborty a sum of Rs. 1,000/- every month as interim compensation during the pendency of Criminal Case No. 1/95 in the court of Judicial Magistrate, I Class, Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed till this date. [20]

The Supreme Court in State of Maharashtrav.Madhukar Narayan Mardikar, [21] upheld the right to privacy of women of easy virtue against compulsions for sexual acts against her will. Anti-subordination vision in this approach infused aspects of human dignity into right to privacy in this case.

In N Radhabai v. D. Ramchandran, when Radhabai, [22] Secretary to D Ramchandran, the then social minister for state protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favour, with back pay and perks from the date of dismissal.

In the case of Mrs. Rupan Deol Bajaj vs Kanwar Pal Singh Gill, [23] a senior IAS officer, Rupan Bajaj was slapped on the posterior by the then Chief of Police, Punjab- Mr. K P S.Gill at a dinner party in July 1988. Rupan Bajaj filed a suit against him, despite the public opinion that she was blowing it out of proportion, along with the attempts by all the senior officials of the state to suppress the matter.

In State of Rajasthan v. Madan Singh, [24] the accused raped a girl below twelve years of age for which he was awarded sentence of less than the minimum mandatory sentence. The Supreme Court held that the reason that the accused was young and the only bread earner in his family was not adequate and special reasons for imposing less than the minimum punishment and so the order was liable to be set aside. The measure of punishment in a rape case cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, age of the victim and gravity of the crime.

Crimes of violence against women need to be dealt with severely. The socio-economic status, religion, race, caste, or creed of the accused or victim is irrelevant in sentencing policy.

Protection of society and deterring the criminal is the avowed object of the law and that is to be achieved by imposing an appropriate sentence.

The Supreme Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three months Rigorous Imprisonment under Sections 294 and 509 of the Indian Penal Code.

As in State of Punjab v. Gurmit Singh, [25] the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

In case of Vishaka v. State of Rajasthan, [26] in 1997 has been credited with establishing sexual harassment as illegal. The litigation resulted from a brutal gang rape of a publicly employed social worker in a village in Rajasthan during the course of her employment. The petitioners bringing the action were various social activists and non-governmental organisations. The primary basis of bringing such an action to the Supreme Court in India was to find suitable methods for the realisation of the true concept of gender equality in the workplace for women. In turn, the prevention of sexual harassment of women would be addressed by applying the judicial process.

Under Article 32 of the Indian Constitution, an action was filed in order to establish the enforcement of the fundamental rights relating to the women in the workplace. In particular it sought to establish the enforcement of Articles 14, 15, 19(1) (g) and 21 of the Constitution of India and Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women.

In Nazir Ahmed v. State of Jammu and Kashmir, [27] the accused was charged with committing rape on her divorced wife by allegedly cohabiting with her for seven or eight years after executing a divorce deed. The fact of execution of divorce deed was not communicated to her and it was only when she filed an application for maintenance, he pleaded case of divorce. He had executed a power of attorney in favour of her after execution of her divorce deed where he had described her as his legally wedded wife and empowered her to do all acts including execution of sale deeds etc.

In the case of Dr. Y.R. Midha v. Union Of India (Uoi) And Ors, [28] The incidents of sexual harassment of women in their place of work have been on the increase in India since the 1980's. These frequent violations of women's rights have taken place in both public and private sector workplaces and institutions by male colleagues or superiors. The incidents have continued despite the landmark Supreme Court decision that issued Vishaka Guidelines on the matter.

The Guidelines expressly prohibit sexual harassment at the workplace, outline criminal punishment for offenders and provide Guidelines to prevent hostile working environments. Furthermore, a complaints committee must be set up when harassment does take place. A woman must head the committee and half its members must also comprise of women. The committee must also involve a NGO that specialises in women's rights and sexual harassment.

In Ibrahim v. Emperor, [29] the cattle of the accused trespassed on a grassy plot in which the victim was grazing her cattle. She drove away the cattle and then remonstrated with the accused. The accused thereupon seized her and proceeded to rape her. Her cries attracted the attention of two independent prosecution witnesses who rescued her. The court held that the evidence of the victim was corroborated by the evidence of a disinterested witness that left no doubt that the girl was raped.

At the same time the medical evidence showed that the girl was used to sexual intercourse and as she was unmarried it followed that she was unchaste. Under the circumstances of the case the court considered that the sentence of seven years' rigorous imprisonment was too severe and it reduced it to four years' rigorous imprisonment.

In this case, the reasoning of the court in reducing the sentence of the accused clearly shows the apathetic attitude of the Judiciary towards the victim. It gives an impression that a girl of easy virtue can be raped by anybody and she has no right to protect her person in such cases of sexual assault.

In Jalal v. Emperor [30] two men raped the victim when she was alone in her home. The victim called for help and several people appeared including her mother-in-law. These persons saw the accused persons escaping. The court held that it was quite clear from the evidence that the accused entered the house of the victim and committed criminal assault and not rape upon her. The court observed that the report of the chemical analyzer regarding the presence of semen on the victim's clothing was not sufficient to prove that the victim was actually raped.

In Emperor v. Mahadeo Tatya [31] the victim, a married girl of about 15 years and a ghee seller was asked by the police constable on duty to put the ghee in his room. She was raped inside the room, closed and bolted by the constable. After the alleged rape, she was taken to a Railway Station and on the way deprived of her ornaments by the man who was told to accompany her at the behest of the accused.

The order of conviction of accused, who was a police constable, passed by the trial Court in consultation with jury was set aside by the Bombay High Court for want of corroboration. The Court observed that a charge of rape was very easy charge to make and a very difficult one to refute and corroboration must necessarily depend on the facts of each case. It observed that in a contested case of rape, medical evidence showing injury to the private parts of the victim, external injury to her body as a natural consequence of resistance by her; use of force by the accused and the presence of seminal stains on her clothes and on the clothes of the accused or at the place of occurrence were needed for the corroboration of charge/allegation. It further observed that the subsequent conduct, by itself, although important, was not enough because a witness could not corroborate himself/ herself.

In setting aside the lower court's verdict of conviction, the court failed to take into consideration the social realities and also the pathetic condition of the victim vis-a-vis a well off and comfortably placed accused. In Indian society no woman or girls would prefer to invite the social stigma of being raped and thereby losing her most vital wealth i.e. Virginity and Chastity for the sake of procuring conviction for others.

Secondly, the suggested corroborative medical evidences were not necessary to be available in each case of rape like where the victim was habitual to sexual intercourse, no injury would be available on her private parts, also where she was overpowered in the beginning of the act or series of acts by putting her in threat of physical injury or any other method, she would be left with no option other than to passively submit and no sign of injury would be visible on her externally.

Same would be the case regarding the presence of seminal stains or other biological evidences. In this case the court created an unscientific and rigid requirement of independent corroboration ignoring the social facts that outweigh the need of mechanical corroboration. Also, in cases of false accusation, it would always be open to the accused to assign some credible reasons for such accusation and in absence of these reasons adhering to the requirement of mechanical corroboration is not only anathema to the concept of justice but also supportive to class exploitation of women.

In Nura and Ors v. Rex, [32] the victim aged around 12 to 13 years, having intimacy with a friend in the neighbourhood once went to her house on an invitation, and was introduced to her husband and another friend of his. The friend asked the victim to go with these two men who took her out of the village and several men allegedly raped her.

The doctor found that her hymen was absent and that there was no laceration of the vaginal orifice, nor was there any mark of any injury. On this the court observed that the girl appeared to have had some previous experiences of sexual life, and the fact that there was no mark of any injury on any portion of her body clearly suggested that there had been no tussle between her and the accused persons when one or the other would have raped her.

The High Court held that in a charge of rape the uncorroborated testimony of the victim alone should not be accepted as a sufficient foundation for convicting the accused. The Hon'ble Court failed to appreciate the fact that the offence of rape has nothing to do with the virginity of the victim because if the loss of virginity was considered as sine--qua-non for the offence of rape to make out then no married woman in general could be subjected to rape.

This interpretation of law is unacceptable, appears to be illegal and even absurd. The court also failed to differentiate between consent and passive submission as in latter case the victim could be overpowered by the use of physical power or threat or coercion in the beginning itself and normally no medical evidence would be available in these cases. It is also submitted that insistence for the independent corroboration in such circumstances would mean to negate the reality that the offence of rape is generally committed in isolation or in darkness and no eye-witnesses will be available for their expected evidence in court. Going by the ethos, morale and practice in our society it can be said that commission of rape in the presence of eyewitnesses would be very rare.

In Muhammad Afzal v. The Crown, [33] the victim was raped by two ticket collectors, on the pretext of taking her to a refugee camp where she wanted to go after coming out of the Railway station. They later left her at the Railway Platform. The victim gave contradicting statements about her consent to the Military Police and then to the sub-inspector at the police station.

The court held that the victim did not receive any injury in the struggle nor were her clothes torn. The fact that she did not tell even her father that she had been violated or deceived also showed that no deception was practiced nor any force used on the victim.

his case is different from the other cases that have been discussed in the preceding pages because in this case it was observed by the court that the rule of corroboration was meant to be applied to accomplices and a ravished woman was not an accomplice but a victim of crime. Therefore, corroboration of the victim in a case of rape was not always indispensable. The thing to be remembered in such cases is whether it is safe to convict the accused on her solitary statement. This depends upon the circumstances of each individual case.

In Rajput Bhima Karasan v. The Kutch Government, Bhuj ,[34] the victim, a young Meghwar married woman of about 17 years, lived with her husband and parents-in-law, and had gone to the field to give food to her husband and father-in-law. When she was returning home alone from the field at about noon, the accused, a Rajput boy of 25, waylaid her, caught hold of her and ravished her against her will and in spite of her protests.

The court held that it should demand some tests of genuineness of the victim's evidence and in absence of such tests it should accept that evidence as conclusive. It was true that the lack of those tests was not victim's fault. It was the police's fault; but that should not act to the prejudice to the accused person. The accused should get benefit of doubt. In this case the court had made an important observation that in case of rape it was a rule of prudence that there should be corroboration of testimony of the victim. Such corroboration could seldom be by direct evidence, corroboration of that sort would be almost always impossible; but the testimony should be capable of being tested.

Although the court could not make itself free from the requirement of corroboration but the acknowledgement of absence of direct corroborative evidence in rape cases was a welcome progress in the assertion of facts. The first progressive development occurred in 1952, with the pronouncement of Supreme Court in Rameshwar v. State of Rajasthan, [35] Woman, who has been raped, is not an accomplice... corroboration can be dispensed... when it is safe to do so. The rule, which according to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction, but the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with.

The judicial stand in Rameshwar case was followed in many cases, holding that corroboration is not sine qua non of conviction In Rahim Beg v. State of U.P, [36] the victim (deceased); aged about 12 or 13 years resided with her father and was married about six years but her Gauna ceremony was not performed. On one morning both the accused persons, Rahim Beg and Mahadeo, followed the victim who were seen by two prosecution witnesses when the victim did not arrive at home, her parents searched for her and at about 4 pm ,her dead body was found lying under a bush in a Bhinta.

The court held that there were semen stains on the langot of the accused who was a young man but it could exist because of a variety of reasons and would not necessarily connect him with the offence of rape. In this case rape was alleged to have been committed by a fully developed man on a girl of 10 or 12 years who was virgin and whose hymen was intact. There was absence of any injuries on the male organ of accused that would point to his innocence. Again this case was very disturbing, as the court did not take into consideration the available evidence against them and acquitted them.

In Pratap Mishra v. State of Orissa [37] the victim was a five months pregnant woman of around 23 years at the time of the incident. The victim was on a pleasure trip to Nandan Kanan with her husband, when she was raped in the tourist lodge by a number of NCC students; who forced the Rape: Judicial Approach In India door open and took her husband away and then raped the victim in spite of her protest one after another. The traces of seminal stains were found on the saya (petticoat) and the underwear of the victim.

The opinions of medical experts showed that it was very difficult for any person to rape single-handed a grown up and experienced woman without meeting the stiffest possible resistance from her. It was held to be doubtful if at all the victim was raped without her consent. It was held on perusal of the entire evidence, that the accused persons no doubt committed sexual intercourse with the victim but such an intercourse was done with the tacit consent of the victim and the connivance of her husband.

In the opinion of the doctor if the victim had been raped by the three accused persons, one after the other in quick succession with force and violence, the abortion would have been immediate and not after a few days. It was held that the accused persons might have indulged in sexual intercourse with the victim but not without her consent.

In this case it is apparent that the Supreme Court overlooked the facts like presence of semen on the undergarments of victim (a married woman) that normally does not happen in cases of consent. Mere absence of stiff resistance by the victim could not be considered as consent when she was in advance stage of her pregnancy because the victim might have realised that resistance before the accused person would be of no effect and consequent violence might endanger her life and the life of the baby in her womb.

It is very unfortunate that this peculiar inability of the victim was construed as consent by the apex court and instead of awarding the deterrent sentence, it acquitted the accused. The accused never pleaded that they knew the victim or she was paid money for the act. Under the circumstances, the only inference should have been the commission of rape by the accused persons.

In Phul Singh v. State of Haryana, [38] the accused, aged 22 years, entered into his cousin's house next door, and in broad daylight, raped the victim, aged 24 years. The Sessions Court imposed a sentence of 4 years rigorous imprisonment, and the High Court affirmed it in appeal. The apex court held that the culpability was beyond doubt and upheld the conviction.

With regard to the quantum of sentence, the Supreme Court held that ordinarily, rape was violation, with violence, of the private person of a woman -- an outrage by all cannons. In Indian conditions of escalating sex brutality, a 4-year term for rape was not excessive. But in the present case, the accused was in his early 20s and signs of repentance were seen. The victim and her parents had forgiven the molester who was the first cousin of the victim's husband.

While it was possible that the accused might procure such condonation from an unwilling victim, the fact remained that two families being close cousins were ready to take a lenient view of the situation. However, this did not bind the court in any manner. Therefore, taking an overall view of the familiar and criminal factors involved, the court reduced the imprisonment from four years to two years rigorous imprisonment.

The Apex Court in this case tried to justify the award of lower sentence than the minimum prescribed period by taking into consideration the near relationship of accused to the victim and mutual understanding and forgiveness between the two families. The court emphasized more on Rape: Judicial Approach In India the rehabilitation of accused in social life. Accused persons and their families can use this judgment to put pressure upon the victim to withdraw the case in the guise of social compromise resulting in the increased social exploitation of rape victim.

In Rafiq v. State of U. P, [39] the victim, a middle-aged Bal- Sewika in a village welfare organisation, was sleeping in a girls' school where she was raped by the accused with his three accomplices. The court observed that corroboration, as a condition for judicial reliance on the testimony of a victim was not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying lifestyles and behavioural complexes, inference from a given set of facts, oral and circumstantial, might have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape or rule of law in this area be introduced through a new type of the precedential tyranny.

The same observation held well in respect of the presence or absence of injuries on the person of the aggressor or the aggressed. The court further observed that the escalation of such crimes had reached proportion to a degree that exposed the pretensions the nation's spiritual leadership and celluloid censorship, put our cultural heritage and humane claims to shame and betrayed a vulgar masculine outrage on human rights of which woman's personal dignity was a sacred component.

It further observed that the facts and circumstances often varied from case to case, the crime situation and the myriad psychic factors, social conditions and people's life styles might fluctuate, and so, rules of prudence relevant in one fact situation might be inept in another. When rapists were reveling in their promiscuous pursuits and half of the humankind-womankind -was protesting against its hapless lot, when no woman of honour would accuse another of rape in case she sacrificed thereby what was dearest to her, the court could not cling to a positive formula and insisted on corroboration of victim's testimony.

Even if, taken as a whole, the case was spoken to by the victim strike for a judicial mind as probable. When a woman was ravished what was inflicted was not merely physical injury, but “the deep sense of some deathless shame.” “A rape! a rape! Yes; forced her to do your pleasure.

Hardly a sensitised judge who saw the conspectus of circumstances in its totality would reject the testimony of a rape victim unless there were very strong circumstances militating the veracity. Judicial response to human rights could not be blunted by illegal bigotry. The court, observed that there was considerable public and parliamentary attention to the violent frequency of rape cases and it was time that the court reminded the nation that deterrence came more effectively from quick investigations, prompt prosecution and urgent finality, including special rules of evidence and specialised agency for trial.

Mere mechanical increase of punitive severity might yield poor dividends for women victims. The strategy for a crime free society was not the draconian severity, processual celebrity and prompt publicity among the concerned community.

Lawlessness was abetted by a laggard, long-lived, lacunose and legalistic litigative syndrome rather than by less harsh provisions in the Penal Code. The focus must be on evil. Rape for a woman was deathless shame, and must be dealt with as the gravest crime against human dignity.

In this case, Justice Krishna Iyer had delivered a highly sensitive and appreciable judgment upholding the rights of the rape victim and stated different circumstances in which these rights could be given to the victims. He had given a number of directions to the trial courts to try the cases involving rape.

In Harpal Singh and another v. State of Himachal Pradesh, [40] an FIR was registered ten days after the commission of rape on the minor girl. It was held that the explanation given for the delay of ten days was reasonable because the honour of family was involved and therefore, its members had to decide whether to take the matter to court or not. It was not uncommon that such considerations delay action on the part of the near relations of the young victim.

The court further held that the evidence of victim before Magistrates and Sessions Judge was consistent and reliable. The question of consent did not arise as the victim was below 16 years of age. The fact that no injury was caused to the private parts or that victim was used to sexual intercourse was immaterial.

The apex court rightly upheld the conviction on the sole unshaken testimony of the victim, a minor girl and brought a welcome development in delinking of victim's character with the conviction of the accused in the case and also doing away with the mechanically foisted requirement of presence of injury on the private part of the victim.

In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [41] the Supreme Court has observed:
“To say at the beginning what we cannot help saying at the end: human goodness has limits- human depravity has none. The need of the hour however, was not exasperation.”

In this case the victim and the other girl child went to the house of accused in order to meet his daughter, belonging to their own age group of 10 or 12, who happened to be their friend. The accused induced them to enter his house by creating an impression that she was at home though in fact she was not. Once they were inside, the accused closed the door, undressed him in the presence of both the girls, and exposed him. He asked other girl to indulge in an indecent act. She started crying and fled from there. The victim could not escape. She was pushed into a cot, and was made to undress and the accused sexually assaulted her.

The Sessions Judge found the accused, a government servant, guilty of serious charges of sexual misbehaviour with young girls aged about 10 or 12 years and convicted him for the offence of rape, outraging the modesty of women, and wrongful confinement. The appeal to the High Court substantially failed as the Court affirmed the order of conviction for wrongfully confining the girls and for outraging the modesty of two girls but with regard to the more serious charge of rape on the victim, it came to the conclusion that evidence established an offence of attempt to commit rape and not rape.

In the case of State of U.P. v. Chhotey Lal, [42] Highlighting the difference between ‘will' and ‘consent', the court said that a nod for sexual relations obtained by a man on the false pretext would not amount to a ‘legal or valid' consent to save him from punishment for rape. Even if there were mutual consent, if the consent is based on a false pretext made by the man then the consent would stand as null and void and the intercourse be termed as Rape.

In State Government of N.C.T of Delhi v. Sunil, [43] the two accused persons committed rape on the victim, a little girl, and murdered her after the act. Trial Court held the accused guilty but the High Court, on appeal, acquitted them. The Apex court held on consideration of the entire evidence that it had no doubt that the trial court came to the correct conclusion that the two accused were the rapists who subjected victim to such savagery ravishment. A Division Bench of the High Court had grossly erred in interfering with such a correct conclusion made by the trial court, as reasons adopted by the High Court for such interference would vary.

Delhi Gang Rape (2012), [44] case involved a rape and fatal assault that occurred on 16 December 2012 in Munirka, a neighbourhood in South Delhi. The incident took place when a 23-year-old female physiotherapy intern, Jyoti Singh was beaten, gang raped, and tortured in a private bus in which she was traveling with her friend, Awindra Pratap Pandey. There were six others in the bus, including the driver, all of whom raped the woman and beat her friend.

Thirteen days after the assault, she was transferred to a hospital in Singapore for emergency treatment, but died from her injuries two days later. The incident generated widespread national and international coverage and was widely condemned, both in India and abroad. Subsequently, public protests against the state and central governments for failing to provide adequate security for women took place in New Delhi, where thousands of protesters clashed with security forces. Similar protests took place in major cities throughout the country. Because India does not allow the press to publicise a rape victim's name, the victim has become widely known as Nirbhaya, meaning "fearless", and her life and death have come to symbolise women's struggle to end rape and the long-held practice of blaming the victim rather than the perpetrator. [45]

All the accused were arrested and charged with sexual assault and murder. One of the accused, Ram Singh, died in police custody from possible suicide on 11 March 2013 in the Tihar Jail. According to some published reports, the police say Ram Singh hanged himself, but defense lawyers and his family suspect he was murdered. The rest of the accused went on trial in a fast-track court; the prosecution finished presenting its evidence on 8 July 2013.

The juvenile was convicted of rape and murder and given the maximum sentence of three years' imprisonment in a reform facility. On 10 September 2013, the four remaining adult defendants were found guilty of rape and murder and three days later were sentenced to death by hanging. On 13 March 2014, Delhi High Court in the death reference case and hearing appeals against the conviction by the lower Court, upheld the guilty verdict and the death sentences. [46]

In Dhananjoy Chatterjee alias Dhana v. State of West Bengal, [47] the victim, 18 year old school going girl, was barbarically raped and murdered by the accused, who was the security guard of the society in which the victim resided. It was held by the apex court that keeping in view the medical evidence and the state in which the body of the deceased was found, it was obvious that the most heinous type of barbaric rape and murder was committed on a helpless and defenseless victim.

The faith of the society by such a barbaric act of the guard, got totally shaken and its cry for justice becomes louder and clearer. The offence was not only inhuman and barbaric but it was totally ruthless crime of rape followed by the cold-blooded murder and an affront to the human dignity of the society. The savage nature of the crime shocked judicial conscience.

The Supreme Court held that measures of punishment in a given case must depend upon the atrocity of crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment was the manner in which the courts responded to the society's cry for justice against the criminals.

Justice demanded that courts should impose punishment befitting the crime so that the courts reflected public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of victim of crime and the society at large while considering imposition of appropriate punishment. It was further held that there were no extenuating or mitigating circumstances whatsoever in the case.

The Court agreed that a real and abiding concern for the dignity of human life was required to be kept in mind by the courts while considering the confirmation of the sentence of death but cold-blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenseless young girl of 18 years, by the security guard certainly made this case a “rarest of the rare” cases which called for no punishment other than the capital punishment.

In the case of Thangjam Manorama Devi,[48] in June 2004, Manipur, which is the northeastern state of India with the majority of its population belonging to the ethnic tribal group, witnessed the abuse of the Armed Forces Special Powers Act. Thirty two year old, Thangjam Manorama Devi was brutally tortured, raped and executed by personnel of the paramilitary force of 17 Assam Rifles. [ 49]

Devi's house was raided by the soldiers around midnight on suspicion of her association with the People's Liberation Army which is an insurgency outfit. According to the victim's family, no explanation was provided by the armed military personnel as they rushed in and searched the house. Devi was dragged out from her bed and her family members were mishandled when they tried to obstruct, even her elderly mother was threatened under the gunpoint.

The soldiers demanded her family wait outside while they interrogated her. Devi's family claimed that she was brutally tortured during the interrogation by the soldiers as they could hear her cry in pain. The military personnel approached and informed the victim's family that was forced to wait at the courtyard for long hours from midnight that she will be taken into custody.

An arrest memo, which is an official acknowledgement of detention that is put in place to prevent disappearances was signed by the soldier's after they briefed the family members. The terrified family was also forced by the soldier's to sign on some papers that they had no understanding about. However, according to reports it was a ‘no claim certificate' that Devi's elderly mother and brothers were asked to sign which said:
that the family had no claims against members of the Assam Rifles who had searched the house and made the arrest and that the troops haven't misbehaved with women and not damaged any property.

According to the Human Rights Watch report, Devi's bullet ridden body with no proper clothing was found later outside a nearby village. The bullet wounds including on her genitalia raised suspicion that bullets had been used as an attempt to hide evidence of rape. Even though, a case has been registered and the state government was forced to respond by authorizing Justice Upendra to conduct the government inquiry the report is yet to be made public as it remains sealed and no arrests have been made to date. However, Justice Upendra had blamed the security forces and Devi's family Counsel claimed that “neither the Prime Minister nor the Home Minister, nor the Defence Minister has made the report public and told the women of Manipur, what are the findings of the commission that was appointed by the government itself”. [50]

Even though, the protests in the state through which the people displayed their anger over the brutal killing succeeded in pressurizing the authorities to some extent. On the other hand, the case still lacks a positive legitimate action to provide justice to the victim without being affected by the power position of the perpetrator.

In the case of Soni Sori Case, [51] a 35 year old Adivasi (an ethnic and tribal group claimed to be the aboriginal population of India) from a village in Chhattisgarh has been accused of assisting the banned Communist Party of India (Maoist/Naxals) without any substantial proof and currently is facing trial. [52]

According to Amnesty International, Sori an activist and school teacher was imprisoned and allegedly tortured for speaking out against the Maoists/Naxals as well as state forces for human rights violations in the armed insurgency in India. Amnesty International termed her as a prisoner of conscience in 2012. [53] Kumar, Himanshu a member of the Chhattisgarh chapter of the People's Union for Civil Liberties (PUCL), commented that:
Chhattisgarh, has an unwritten set of rules about how an Adivasi or a lower caste should behave. You don't organize, you don't agitate, you don't protest against human rights violations, you don't protest against the state, and you certainly don't protest against industrial houses that are in Bastar to usher in the industrial revolution,.”

The strong statement indicates the influence of the caste system in the society and proves that position provides power to dominate in certain Indian communities. [54]

Sori was subjected to the most degrading treatment while in custody at the orders of thendistrict police superintendent Ankit Garg, the district police superintendent who initiated many operations against the Maoists/Naxals in the central Indian state. According to Sori in her letters submitted to the Supreme Court of India, the investigating officer Garg, abused her verbally and directed his police personnel to torture her. In name of interrogation she was stripped naked and tortured with electric shocks in the presence of the officer, Garg. The mother of three was tortured without any limits and raped while in custody. [55]

Sori who suffered from serious health complications due to torture was denied treatment by AIIMS (All-India Institute of Medical Sciences) first, the most trusted medical organization in India, because she was brought in after admission hours and without prior intimation by the police, even though the medical help was directed by the Supreme Court of India. [56]
The evidence of gross sexual torture was exposed following a Supreme Court directive for medical examination. In the examination doctors found and removed stones that had been inserted into her genital tract and rectum during the torture. [57]

Ankit Garg, the police superintendent who allegedly supervised the torture of Sori was awarded the Police Medal for Gallantry (the President's gallantry award) on Republic Day 2012 for his role the 2010 raid on Maoist terrorists. Despite the evidence, the perpetrator of sexual torture received the medal as a distinctively designed mark of honor denoting heroism and the victim who was framed without any substantial proof is still fighting her case under the custody of the same state police that inflicted her serious torture. [58]

In the case of Jyoti Singh [59] on December 2012, Jyoti Singh, a 23 year old student died from her injuries after been gang raped by six men in a bus traveling on main roads in the Indian capital, Delhi. Singh who was a medical student in the midway of completing her education consistently performed well and besides her studies had to work night shifts to pay her way through college. She worked 7 to 3 am in an international call centre, IBM for a minimal wage of just 35 pence after attending her regular course of study as her family sacrificed everything for their only daughter's future career.

Singh's family had hopes that she would succeed with her career and help them out of the abject poverty. However, things changed as the victim accompanied with her male companion, a software engineer boarded a chartered bus on their way home on the night of the incident. The bus they boarded was driven by a group of men consuming alcohol in the bus. In the bus, besides the victim and her friend there were only six others including the driver and a minor. [60]

The group of men on board taunted the couple questioning them what they were doing alone at that late hour when Singh's male friend who became suspicious and objected as the bus deviated from its normal route. The skepticism of the woman's male companion ensued to a scuffle with the others in the bus. Singh was dragged to the rear end of the moving bus and when he resisted, both Singh and her male friend were battered by the joyriders. The woman was brutally tortured and gang-raped, and when he tried to intervene her male companion was knocked unconscious with an iron rod. As the victims, Singh and her friend fell unconscious due to the torture they were subjected to and the attackers robbed them off their clothes and belongings and threw them both out of the moving bus. [61]

Singh's internal injuries caused by the iron rod that the brutal attackers used to torture her were so severe that in the effort to save her life the doctors had to remove her intestine. The government of India transferred the critically-ill gang-rape survivor to Singapore for emergency treatment. Singh died from her injuries thirteen days later while undergoing treatment in Singapore. Experts have questioned the government's decision to airlift the woman who was on the ventilator and already provided with the best possible care by an expert group of doctors in India, alleging that it was not a medical decision but more of a political move. [62]

  1. Prof. Narender Kumar, Constitutional Law Of India, (Allahabad Law Agency, Haryana 8th Edn.,2011).
  2. Prof. S. N Mishra, Indian Penal Code, (Central Law Publication, Allahabad, 19th Edn., 2013).
  3. Ashworth and Andrew, Principles of Criminal Law, (Oxford University Press, New Delhi, 1999).
  4. A. M Bhattacharjee, Hindu Law and the Constitution, (Eastern Law House,2nd Edn., Calcutta, 1994).
  5. Mohapatra, Padmalaya and Bijoyini Mohanty, Elite Women of India, (APH Publishers, New Delhi, 2002).
  6. Vasudha Dhagamwar, Law Power and Justice- the Protection of Personal Rights in the Indian Penal Code, (Sage Publication, New Delhi, 2007).

End Notes:
  1. Scutt, Jocelynne A., "Judicial Bias : Confronting Prejudice in the Courtroom" in Women's Encounters With Violence – Australian Experiences, ed. by Sandy Cook and Judith Bessant, 89 (1997), Sage Series on Violence Against Women, Sage Publications, California
  2. (2010) 1 SCC 583
  3. 2011 AIR 1332
  4. (2009) 4 SCC 398
  5. AIR2009 SC 938.
  6. AIR2003SC4684
  7. (2004) 7 SCC, 775
  8. AIR 2004 SC 3566
  9. State v. Ram Singh and others, Crl. Rev. P. 124/2013 (Nirbhaya Case)
  10. AIR 1992 SC 2043
  11. Ibid.
  12. 1989 Supp (1) SCC 286
  13. AIR 1992 SC 2043
  14. Ibid.
  15. 2009 Cr LJ 1731
  16. Vishaka and others v. state of Rajasthan and others AIR 1997 SC 3011
  17. Samhita (2001): The Politics of Silence, Kolkata
  18. AIR 1997 SC 3011
  19. 1995 (1) SCC 14
  20. Ibid.
  21. (1995) 1 SCC 57
  22. AIR 1995 SC 1476
  23. AIR 1996 SC 309
  24. AIR 2007 SC 93.
  25. 1996 SCC (2) 384.
  26. AIR 1997 SC 3011.
  27. AIR 2008 SC 231
  28. AIR 2006 SC 114
  29. (1944) L.R. 71 I.A. 83
  30. 1930 Lah. 193
  31. (1912) 13 Cri.L.J. 858, 859 Bom.
  32. AIR 1949 All. 710
  33. AIR 1951 Raj 30
  34. AIR 1950 Kut. 9.
  35. 1952 SCR 377
  36. AIR 1973 SC 343
  37. AIR 1977 SC 1307
  38. 1980 AIR 249
  39. 1981 AIR 559
  40. AIR 1981 SC 361
  41. 1983 AIR 753
  42. 2011 (2) SCC 550
  43. AIR 2011 SC 193
  44. State v. Ram Singh and another (AIR 2012 SC 114)
  45. Ibid
  46. Ibid
  47. AIR 2011 SC 232
  48. Retrieved from
  49. Human Rights Watch Report, September 15, 2008
  50. Asian Human Rights Commission Report, 29 July 2004
  51. Retrieved from
  52. The Indian Express, 30 Apr 2013
  53. Amnesty International, Report March 7, 2012
  54. CNN IBN, Jan 04, 2013
  55. The Indian Express, 30 Apr 2013
  56. The Hindu, May 10, 2012
  57. The Indian Express, 30 Apr 2013
  58. The Hindu, January 26, 2012
  59. Retrieved,from,
  60. The Times of India: Dec 18, 2012
  61. The Hindu: Dec 23, 2012
  62. The Hindu: December 28, 2012

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