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Rape and the law: Many implications

In September 2020, the brutal rape and murder of a young woman in Hathras shocked the nation. Some 27 years earlier, another similar rape occurred. Both are mirror images in terms of the crime and legal implications.

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On September 14, 2020, in a village of Hathras, UP, a 19-year-old woman was abducted and gangraped by four persons. She was further subjected to brutal torture and died in hospital. However in highly suspicious circumstances, her body was cremated by police officials in the middle of the night without seeking the consent of her family. This raised a storm of protest and also created doubts over the functioning of UP police officials, on whose behest the decision was taken to cremate the body without conducting any medical examination and forensic examination and other procedures as mandated by law.

It brought back memories of another alleged gangrape, 27 years ago, of a 14-year-old girl who later delivered a boy. In the latter case, the mother gave her child for adoption to someone she knew. Her doctor had refused to terminate her pregnancy at such a minor age as it was not viable to do so. The victim has now filed a plea on behalf of her son in court seeking permission to conduct a DNA test of the two accused persons to determine the biological father of the child.  The two accused persons have been apprehended under Section 376D of the Indian Penal Code (IPC), 1860. Unfortunately, the woman who was sexually assaulted at such a young age had concealed this fact from the police and did not report to the concerned police department due to the social stigma still prevalent in Indian society. The statement made by the circle officer,Shahjahanpur city, says a case has been registered against two brothers who are accused and co-accused. The legal questions raised herein needs to be pondered over:

  • Can an FIR be registered after 27 years against two or more persons allegedly involved in the gangrape after disclosing the information of commission of offence to the police, held to be maintainable, and can it have any leg to stand on?
  • In the absence of Sections 376DA and 376DB at the time of the alleged offence (the Sections were incorporated in the IPC, 1860, by way of amendment in 2018), can the accused persons still be charged and punished under the Sections now and would it be treated as prospective or retrospective in nature?
  • Considering that the alleged crime was committed 27 years ago, would the accused still be entitled to benefit of doubt in the trial proceedings and does it vitiate the trial in toto?
  • Can the accused persons, who have been apprehended now after the case has been lodged by the victim after 27 years, be arrayed as an accused and also tried under The Protection of Children from Sexual Offences (POCSO) Act, 2012?

It is pertinent to look into the relevance of a statement of victim recorded under Section 164 of the Code of Criminal Procedure (CrPC), 1973, in peculiar circumstances. “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.” This expression used by Justice Arijit Pasayat is well articulated and crafted, arising out of the case Tulshidas Kanolkar vs State of Goa, (Criminal Appeal no. 298 of 2003).

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A magistrate is now under obligation under Section 164(5A) (a) to record a statement, which could also be recorded by the police under Section 162 of the CrPC. Apparently Section 145 of the Evidence Act does not create any distinction among the statement recorded under Section 162 and the statement given under Section 164, respectively, and no additional weightage is given to statements recorded under Section 164 of the CrPC for the purpose of contradicting a witness.

The main purpose for which the statements are recorded is for contradicting witnesses during cross-examination under Section 145 of the Evidence Act. But while a statement recorded under Section 162 of the CrPC can be used only for contradiction during the trial, a statement recorded under Section 164(5A)(a) apart from being used for contradiction, also serves as substantial evidence and is used for corroboration too and thus is of greater evidential value for the court.

It is noteworthy to state that in 2013, major amendments were incorporated in the IPC, introducing offences such as assault by criminal force with the intent to disrobe, voyeurism and stalking, among others. Rape is not merely sexual violence, but also an ugly expression of authority and a form of oppression on woman. It is a dismal manifestation of power meant to terrorise the victim and is deep-rooted and entrenched in cultural and patriarchal value systems. Physical injuries and acute mental agony inflicted on a woman by rape are immeasurable.

Keeping in consideration the rise of rape cases in India, a survey was conducted by an independent research group, PEW Research Center, in 2014. Overall, 90 percent of people in India perceive rape to be a huge problem, seven percent viewed it as a moderately big problem and three percent consider it to be a minor problem.

The National Crime Records Bureau data clarify the position of rape cases in India in terms of where does India stand pre-amendment (2012) and post-amendment (2013) when certain sections were added and enforced in the interest and for protection of women against heinous crimes.

One of the most significant judgments given by the apex court which brought tremendous change in Indian society was Tukaram vs State of Maharashtra (1979) 2 SCC 143, commonly known as “Mathura Case” and which became a landmark case. It led to massive public protests, street demonstrations and led to the 84th Law Commission recommendations. Subsequently, custodial rape was made a serious offence. In addition, Section 228A was introduced by Act 43 of 1983 with effect from December 25, 1983 which shielded the victim’s identity from the media.

In Delhi Domestic Working Women’s Forum (1994)(7) JT 183, the Supreme Court directed the state to evolve and implement strategies which need to be enforced for giving compensation and rehabilitating rape victims. It set out further directions for the welfare of rape survivors/victims such as:

  • The complaints of sexual assault cases should be provided with legal representation.
  • Legal assistance should be provided at the police station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
  • The police have the obligation to inform the victim about her right to a counsel before being interrogated.
  • In all rape trial cases, anonymity of the victim must be maintained.

Further, in Sakshi vs UOI, AIR (2004) SC 3566, the petitioner, in a PIL, prayed for expanding the concept of rape by way of a writ declaring that sexual intercourse, as mentioned in Section 375 IPC, incorporate all forms of penetration such as penile/vaginal penetration, oral penetration, etc. The apex court discarded the plea but said it would be in the larger interest of the State or people to alter the definition of “rape”. Then came the Nirbhaya case (State vs Ram Singh and ors SC No. 114/13). Since this case fell within the ambit of the rarest of rare doctrine, the punishment became more aggravated.

The United Nations Entity for Gender Equality and Women Empowerment directed the Government of India to take appropriate and stringent steps to bring radical reforms, ensure justice and reach out with robust public services to make women’s lives more safe and secure. As a result, the criminal law amendment was incorporated in 2013.

The present scenario concerning rape laws shows that the paradigm has shifted to include safety, dignity and health of a rape survivor. Certain classes of sexual offences in procedural law were introduced that provided a victim-centric approach for investigation and established a sensitive approach to criminal trial in the manner of examination of victim and of witnesses.

—By Kunal Yadav with India Legal Bureau

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