AN ANALYTICAL STUDY OF THE RAPE LAW

AND IMPACT OF THE LAW

THESIS

SUBMITTED TO THE

SAURASHTRA UNIVERSITY

RAJKOT

FOR THE AWARD OF DEGREE

OF

DOCTOR OF PHILOSOPHY

IN LAW

SUBMITTED BY

AJAYKUMAR T.

THAKRAR UNDER THE

GUIDANCE OF DR. RAJESH

M. DAVE ASSI. PROFESSOR

& H.O.D.

DEPARTMENT OF HUMAN RIGHTS AND INTERNATIONAL

HUMANITARIAN LAW, SAURASHTRA UNIVERSITY,

RAJKOT YEAR 2018

REG. NO.: DATE: 01/01/2014

 CERTIFICATE

This is to certify that Mr. Ajaykumar T. Thakrar student of

Doctor of Philosophy from the Saurashtra University Rajkot has
completed his Thesis successfully.

The research work entitled “An Analytical study of the Rape

Law and Impact of the Law” has been done by his in a way and with a
view to provide the proper guidance and help to the people concern
with the same field, herewith we undersign congratulate for his success
and wish for his bright and shining future.

FURTHER I feel and great joy to forward the research work to

the examiner.

Place: Rajkot GUIDE :

Dt. Dr. R.M.Dave

(ASSI. PROFESSOR & H.O.D.)
DEPT.OF HUMAN RIGHTS
SAURASHTRA UNIVERSITY
RAJKOT.
 DECLARATION

I, the undersigned, Ajaykumar T. Thakrar, hereby declare that the

research work embodied in this Thesis is the outcome of my own
endeavor and it was supervised by Dr. R.M. Dave, Assi. Prof., & H.O.D.
Dept. of Human Rights, Saurashtra University, Rajkot.

I further declare that this Thesis has not in any form been
submitted to any other institution of higher learning for the award of any
degree or diploma.

PLACE : RAJKOT
DATE : [Ajaykumar T. Thakrar]
 CONTENTS

Certificate Declaration

Acknowledgement List

of Abbreviation List of

Cases

CHAPTER – 1

INTRODUCTION 1-30

1. Concept of Sexual Violence

2. Determinants of Sexual Violence

3. Impact of Sexual Violence

a) Rape : Concept

Reaction to Rape

Misconception about Rape

Myths about Rape

Motivation for

Rape Types of Rape

 Typology of Rapists

Types of Relationship between Rapists and

Victim b)Sexual Harassment: Concept

Molestation Eve-

Teasing

5. Methodology

6. Objectives

7. Outlines of the Contents of the Chapters

CHAPTER -2 31-43

HISTORICAL PERSPECTIVE OF RAPE

Concept under Hinduism

Concept under Islam

CHAPTER-3 44-82

RAPE: LEGISLATIVE DEVELOPMENTS IN INDIA

Perception Of

Macaulay’sCommission Law Since

Independence
 The Impact of Mathura case, Campaign for

Amendments and the 84th Law Commission Report

The bill of 1980, Joint Parliamentary Committee

Report of 1982 and the Amendment Act of 1983.

The Existing Law

Ingredients of Rape

Criminal Law (Amendment) Act, 1983

The Suggestions Proposed by the Law Commission of India

Code of Criminal Procedure (Amendment) Act, 2005

Code of Criminal Procedure (Amendment) Act,

2008 The Draft Criminal Law (Amendment) bill,

2010 The Draft Criminal Law (Amendment) bill

2012

CHAPTER- 4 83-124

ISSUES CONCERNING RAPE: A CRITICAL COMPARATIVE

ANALYSIS

1. Issues Relating to Conceptualization of Rape

Classification of offence: Rape - Sexual Offence or Assault? 121

 Sexist Bias Against The Victim

a) Woman as a liar - False Accusations of Rape

b) Woman As a Temptress — Victim Precipitated

Rape Genital Penetration v. Digital Rape

The Spousal Exception Clause –Marital Rape

2. Issues Relating to the Trial of

Rape Consent of the Victim

The Corroboration Requirement

Past Sexual History of the

Victim

Conducting the Trial and Publicity during the

Trial Medical Examination of the Victim

CHAPTER –5 125-166

RAPE: JUDICIAL APPROACH IN INDIA

Analysis of Supreme Court Cases

CHAPTER –6 167-189

CONCLUSION AND SUGGESTIONS

Special Legislation
 Classification of Rape

Redefinig Rape

Age of consent

Essential of Corroboration

Political Sensitivity

Victim Caring Investigation and Trial procedure

Training Programmes and Special Courts

Judicial Sensitivity

Rape Crisis Centres

Sentencing

Compensation and Rehabilitation

Media Sensitivity

BIBLIOGRAPHY 190
 ACKNOWLEDGEMENTS

With the grace of God I am able to complete this work.

I am highly indebted to my guide Dr. R.M.DAVE (H.O.D. of
Human Rights Department, Saurashtra University) for his meticulous
guidance, Constructive and Comprehensive exchange of ideas, concrete
criticisms and Constant inspiration throughout the period of research
work. I also express my heartfelt gratitude to him for facilitating me in
various ways.
I place on record my heartfelt gratitude to Dr. B.G.MANIAR;
H.O.D. of Dept. of Law, Saurashtra University for building a strong base
of law throughout my studies and providing me adequate facilities
generously.
My sincere thanks to staff members of Department of Law, and
Human Rights Department, Saurashtra University, Rajkot, for their kind
help, co-operation and goodwill.
It is a pleasure to acknowledge the valuable help given by all my
colleagues.
I express my deep sense of gratitude to my beloved parents,
brother, wife, relatives and friends who allowed one to work without
demanding much attention to them.
I am thankful to Ms. Urmi Dave for his untiring and extensive
efforts in getting excellent typing of my Dissertation.
At last I want to thank all who directly or indirectly helped me
during my Dissertation.

~ Ajaykumar T. Thakrar
 INTRODUCTION

Concept of Sexual Violence

The oriental tradition of India preaches ―MAATRI DEVO BHAVA ‖

which means worship thy mother; and women should be honoured with great
reverence like goddess. India has different and distinct culture and moral
values from its western counterparts. The history of Sociology has however
established that,

―FORTITUDE THY NAME IS WOMEN;

SELF- SACRIFICE THY NAME IS TENACITY AND

SUCCESSFUL PURSUIT, THY NAME IS WOMEN‖

History attests that man has subjected women to his will, used her as a
means to promote his self gratification, to minstrel to his sensual pleasure, as
an instrument in promoting his comfort, but never he has desired to elevate
her to that rank which she was created to occupy. He has done all he could, to
debase and enslave her mind and now he look triumphantly on the ruin he has
brought. All women for, is that men should ask our brethren, is that they will take
their feet from our neck and permit them to stand upright on that ground which
God designed us to occupy.

Though ancient literature pinpoints towards a better position for the

females, yet many ancient writers eg:- Confucius, Aristotle, Manu etc., were
of the opinion that it is a natural right of a male to assert dominance and the
females were accorded inherently inferior position. As a type of property,
they can be

1
transferred or sold off, and even under the Greek civilization females were kept
within the four walls of the houses.

Therefore, these instances pinpoint that though they occupy a high

position in the family, yet they were subjected to the dominance of male and
were denied of any right. This domination gradually led to sexual perversities and
was found to be the main cause of destruction of civilization as well as the
family unit. The sexual perversities in breeding took place in the society on
account of the inferior position of the females and their easy transferability and
accessibility.

Over the decades there has been an alarming decline in the moral values
all around and the same can be witnessed in India leading to degeneration
of moral and in the guise of open culture the adoption of immoral ways of
existence.

Violence is generally conceptualized in terms of physical force and

destructive conduct. The simplest definition of violence is the behavior
designed to inflict injury on a person or to cause damage to property.

Violence against women is a manifestation of historical unequal

power relation between women and men, which have led to domination over
and discrimination against women, and is a social mechanism by which the
subordinate position of women is sought to be perpetuated. Women suffer even
today, though they constitute more than half of the world‘spopulation. In a 1980
UN Report, it was reported that –women constitute half the
world‘spopulation, perform nearly two-thirds of its work hours, receive one-
tenth of the world‘sincome and less than one-hundredths of the world‘s property.

Violence against women is defined as –Any act of gender based

violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or
private life.
 Sexual violence describes the deliberate use of sex as a weapon to
demonstrate power over and to inflict pain and humiliation upon, another
human being. Sexual violence may be defined as any violence, physical or
psychological, carried out through sexual means or by targeting sexuality.
Sexual violence is a brutal reality of women‘slives and a slur on the face of
civilized human society. Sexual violence, apart from causing immediate physical
harm, leaves a permanent scar in the memory of the victim, which destroys
her emotional psyche tremendously. Sexual violence not only negates the
human rights of the victim concerned but at a large level, affects the society at
large by lowering down the development prospects as it directly impinges upon
the potential of nearly half of the human population i.e., women.

Sexual violence may be homosexual as well as heterosexual. Woman

because of their oppressed and subjugated position in society are far more
prone, in terms of vulnerability to sexual violence. The available evidence
suggests that at least one in five of the World‘s Female Population has been
physically or sexually abused at some time in their lives.
Sexual crimes against women; the most shocking crime against
human conscience and morality occupy a significant place in the penal statutes
of every country. Though women can be subject to all types of crimes but some
crimes are specific to women such as rape, molestation, sexual harassment
and immoral trafficking. Among them rape is perhaps the most damaging and a
serious offence against the dignity of women.

The biological weakness of a woman particularly makes her an easily

vulnerable victim of tyranny at the hands of man in addition to socio-
economic and educational factors. The women, whose inferior status is
established at the birth itself in view of female infanticide and sex
determination are confronted with multi-dimensional problems at all stages of
life, hence an integrated search
of means and methods is essential to prevent crimes, violence and atrocities
against women.
Crime against women has existed invariable with time and place.
Types and trends of crimes however, kept changing with change in mind set and
techniques, unfortunately women were not only accorded a lower status in
the society but they also came to be used as objects of enjoyment and pleasure,
thus subjecting them to regular exploitation and victimization. Sex is a natural
phenomenon and is necessary for the continuity of human race and sexual
exploitation is the worst form of degradation of those who indulge in it.
The violation of virginity subjects women to considerable shame and humiliation.
According to National Crimes Records Bureau, the crime head wise
incidence of reported crimes 2014-2015 is as follows:-

Incidence of Sexual Violence

S.No. Crime Head Year %age Variation in 2014 over 2015

2014 2015

1. Rape 21397 22172 3.5

2. Molestation 38711 40613 4.9

These statistics reveal a pathetic picture of rate of sexual violence

against women in India.
 Statistics further reveal that during 2015, the total number of rapes
cases, where investigation could be completed, was very low, as 2802 out
of an initial total of 33436 pending cases and 11980 cases still remained
pending. Chargesheets were submitted in 55.79% of the total cases.

Rape Cases Disposed off by the Police.

Year Total Cases Cases in Chargesheeted Total No. of

for which Cases

Investigation Investigation Pending

was Investigation
completed
2014 33436 2802 18654 11980

The figures for Courts reveal a very devastating picture, which raises a
big question mark about the efficiency of our judicial system. Out of a total of
89707 cases for trial (including pending cases), only 3788 (4.2%) trial could
be completed and 75295 (83.9%) remained pending.

Rape Cases Disposed off by the Courts.

Year Total No. Cases in Cases in Cases in Cases

of Cases which trial which which Pending
for trial was conviction Discharge Trial at the
including completed followed or end of the
pending Acquittal Year
cases followed
2014 89707 3788 149 10475 75295
DETERMINANTS OF SEXUAL VIOLENCE

Recent cross-cultural studies on family violence and rape, drawing on

data from 90 societies throughout the world, suggest that four factors, taken
together, are strong predictors of violence against women in a society –(i)
economic inequality between men and women; (ii) a pattern of using physical
violence of resolve conflict; (iii) male authority and control of decision
making; and (iv) restrictions on women's ability to leave the family setting.

Apart from these four major predictors, there are several corollaries
of these and other ancillary factors existent in the society, which ultimately give
rise to situations violent to women in sexual terms. Few of the major
determinants of sexual violence are discussed below :–

1) Unequal Power Relation in Society

The most important Determinant for sexual violence is the

historically rooted inequality of power relation between men and women.
Violence is not a natural or biological phenomenon rather it is a product of
the unequal power equations in the society. In fact, sexual violence mirrors
gender inequalities and reflect other forms of social inequalities.

The direct consequences of economic disparities is that women, who

earn less than men, are not likely to advance to positions of authority and power,
hence women remain excluded from the control of knowledge system and its
discourse.

2) Cultural Practices and Ideology

Violence rooted in unequal power relations between men and women

may also include frequent infliction of harm that is justified or exonerated by
 custom,tradition,religion, etc. Many cultures condone or at least tolerate
a certain amount of violence against women.Devdasi system and female
genital mutilation are amongst the various examples of violence encouraged
and perpetuated by cultural and religious practices. Such cultural
devaluation of women constitutes another major precursor for sexual violence
against women

3) Control of Women’sSexuality

The control of female sexual behavior is the focal point of many law
codes, which place great emphasis on chastity of women. Such control
of sexual behavior establishes the time paternity of the child born to such
woman, which is quite important to ensure the property inheritance by
the legitimate lineage of successors. Violence is often used as an
instrument to control sexual behavior.

Visualizing woman only as a sexual entity reduces her to a sexual

object and it is this dehumanization and objectification, which is the initial
step in making women the acceptable targets of violence.

4) Women as an Object of Pleasure

The male dominance has prevailed in every system and woman has
been visualized as an object of pleasure .The woman had been and is still
treated as property which can be dispensed with at any point of time. The
trend has prevailed in the modern times and women has been used for
advertising products and for encashing their beauty.
IMPACT OF SEXUAL VIOLENCE

Perhaps the worst impact of sexual violence is manifested in the

absence of human security for woman. The experience and fear of violence are
threats in women‘s lives that intervene with the most basic human security
needs at all levels –Personal, Community, Economic and Political.

In no society, women are secure or treated equally to men, personal

insecurity shadows them from cradle to grave. The fear of violence shapes
the choices woman make –what places to visit, at what time, what kind of
employment to be picked up etc. The fear of violence compels women to
seek male protection, which gives rise to a situation of vulnerability and
dependence, which is not conducive to women‘s empowerment and development.

Sexual violence results in serious health hazards for women and

sometimes, the physical injuries caused to the victim may be fatal. The
abused women may contract the sexually transmitted diseases and unwanted
pregnancies. The possibility of HIV transmission is facilitated by the damage of
genital area.

The physical consequences are still easier to enumerate in comparison

to the psychological, emotional or spiritual impacts. Abused women may show
high levels of anxiety, somatic disorders or personality disorder.

Sexual Violence also compromises the healthy development of children

and families of the abused women. In cases of such violence occurring within
the family, the important functions and viability of family as an institution may
get threatened.Sexual Violence against women remains a steep barrier to
securing human centered development goals as violence severely hampers the
women‘spotential and their contribution towards growth and developmental
processes. Sexual Violence acts as an obstacle to the alleviation of poverty as
the
employment choices for women may get severely limited, particularly because of
sexual violence occurring at work place.

Sexual violence is all pervasive and manifests itself in a number of forms

–e.g. rape, eve-teasing, sexual harassment at work place, molestation, etc., which
exists in all the institutions of life.

RAPE: Concept

Rape is a crime, not only against the person of a woman, it is a crime

against the entire society. It destroys the entire psychology of a woman and
pushes her into deep emotional crises. It is a crime against basic human
rights. Rape is the ultimate violation of the self. It is a humiliating and traumatic
event in a woman's life, which leads to a fear for existence and a state of
powerlessness.

Rape can be the most terrifying event in a woman's life. The fear of rape
affects all women. It inhibits their actions and limits their freedom,
influencing the life as a whole. Right from the childhood, the fear of rape is
infused in every woman in the society, which conditions the personality of the
woman and her choices regarding her conduct. There is no typical ‗rape
victim‘or conversely, every woman is a typical rape victim - old women, little
girls, women in wheelchairs, lesbians, virgins, women of every race and class...
are raped .

The word rape is derived from Latin ‗rapio‘which means to snatch,

hence it literally means a forcible seizure and this element is a characteristic
feature of the offence. It may be defined in the narrow terms as ―ravishment
of a woman without her consent by force, fear or fraud‖ or as ―the carnal
knowledge of woman by force and against her will‖.

Taking the broader view, Susan Brownmiller has described rape as

―sexual invasion of the body by force, an incursion into the private, personal
inner sense
without consent, in short an internal assault from one of the several avenues
and by one of the several methods. It constitutes a deliberate violation of
emotional, physical and rational integrity and is a hostile degrading act of
violence‖. In words of Nicholans A. Groth, rape is ―a pseudo sexual act, a
pattern of social behaviour that is more concerned with status, hostility,
control and dominance than sexual pleasure or sensual satisfaction‖.

Rape must be understood as the gravest kind of sexual violence

against women –an extreme manifestation occurring in the continuum of sexual
violence. Rape stems from sexist values and beliefs and it is not simply an issue
affecting individual woman. It is a social and political issue directly connected
to imbalances of power between men and women. Rape is an act of aggression
in which the victim is denied her self determination. Rape is a classic act of
domination, where in the words of Kate Millett, ―the emotions of hatred,
contempt and the desire of break or violate personality‖take place.

REACTION TO
RAPE

Rape triggers off different types of reactions in the victim and the
society. Whereas the victim perceives rape as the most brutal attack on her
autonomy, the reactions of the society to rape and the rape victim are
reflective of double standards of morality.

Reaction of Rape
Victim

Rape is a crime that covers a wide variety of incidents ranging all the
way from a misunderstanding of intention between acquaintances to a surprise
attack by a stranger. Among raped woman, there is a diversity of age, level of
maturity, life experience, ethnicity, and social class. Also friends, relatives, and
law enforcement people will vary in their level of understanding and
treatment of victim, which will in turn have an effect on the impact of the
incident.

10
1. The Incident

The nature of the rape determines the extent to which a woman

blames herself or is considered by others to be at least partially responsible. A
woman raped by an acquaintance often feels that it was her fault or that
she could have prevented the assault ;Because she blames herself , criticism
from friends and family is difficult for her to handle , makes it less likely
that she will report the crime , and may possibly prolong the time taken in
resolution of her feelings of guilt.

2. The Victim

The sexual side of rape can be of more concern to young,

sexually inexperienced girls than to older woman. A teenager often feels
defiled and worries that nobody will ever want them now that they have
been raped. Woman‘ssocial class may also have some bearing on their
reaction to sexual assault. Middle and upper class woman possibly suffer
more of an emotional shock because of their lack of familiarity with
violence, crime and victimization. Woman from the lower classes may
accept rape as one more trial in their already difficult lives.

3. The Three Stages Of Reaction

The recovery process varies with each victim, but the reaction to rape is
likely to pass through three phases. These phases are :-

A)The Immediate or Acute Reaction

This stage may last several days and the initial reaction may be one
of shock, disbelief, anger or dismay, along with anxiety and fear. Some
woman

11
show their feelings by crying and are restless and tense, others are calm
and subdued, a reaction which may lead people to believe there was no rape.
This phase is frequently accompanied by physical distress, headache,
nausea, and stomachache etc.

The victim may fear being alone and be unable to sleep. At this stage of
reaction the dreams are likely to be a reenactment of the assault, where the
victim is being attacked again and is trying to get away. Eating patterns
may change; there can be a loss of appetite. Practical and emotional support
at this stage are helpful in moving the victim forward to second phase of
adjustment.

B) Outward
Adjustment

A woman enters the second phase of adjustment when she appears to

be resuming her activities in a normal manner. She loses interest in seeking
help and wants to talk less her experience. Her physical distress diminishes
and her appetite may return to normal.

At this time, the victim may become hyperactive in her effort to

reorganize her life and she will perhaps change jobs or schools or move
to another apartment. This phase may occur soon after the attack or not
for several weeks. Because she appears to have returned to her normal
activities, a victim‘s family may withdraw their support. Also at this stage, it
is helpful if the victim knows what to expect when she enters third phase of
recovery.

C)Integratio
n

During this phase the victim may withdraw from contact with other
people. She is trying to determine her feelings about the rape, the rapist
and persons who have dealt insensitively with her. She may rebuff anyone
who tries to help her, and as time goes on, her depression may return.
 This period of reaction is likely to be short and can be considered
normal unless the victim indulges in compulsive rituals or expresses fears
that have nothing to do with the rape. Some take positive steps to reduce
their venerability, such as moving or taking self-defense classes, or became
active in helping other victims of rape , or press charges against the
assailant , for instance to aid in integrating the experience into their lives.

Reactions of the Society

The society exhibits dual attitudes to rape and the rape victim. At the level
of codified law and public pronouncements, rape is condemned as a serious
crime, whereas at the level of practical implementation, it may be treated as
nothing more serious than a minor skirmish in the inevitable ―battle of sexes.‖

Traditional understanding of rape reflects a pronounced sexual

schizophrenia, one form of abuse — intercourse achieved through physical
force against a chaste woman by a stranger — has been treated as the
archetypal antisocial crime. By contrast, coercive sex, which departs from
this paradigm frequently has been denied or discounted.

The social attitudes towards rape and the rape victim are
diametrically opposite. While condemning rape, the society, condemns the rape
victim too. The rape is deemed to be precipitated by the victim, through her
words, conduct or mere existence and most of the rapists go scot free because
men are considered to be naturally aggressive and creatures for whom control
on sexual urges is an impossible task.

In patriarchal societies, virginity and chastity are considered to be

the great assets of a woman and loss of chastity whether out of choice or by
force is demeaning to her. Rape is considered to be a transgression against
chastity, the
raped women is severely criticized and condemned for loss of chastity. She
faces not only a personal sense of shame, but is also weighed down with guilt
for no fault of hers, because of the constant barbs and criticism that the society
heaps on her. The society equates virtue with chastity in context of women. A
guilty man in the society may be tolerated, but women must be guiltless and even
unsusceptible. These social attitudes have resulted in a situation, whereby
women are told from the childhood that rape is the worst thing that can
happen to a woman. For women, the awareness of the possibility of rape
determines their lives in a very basic way. To be rapable, a position, which is
social,not biological, defiles, what a woman is. All men may not be potential
rapists, but all women are potential victims.

The victim of rape carries social stigma and is never accepted by the
society as a normal human being. She may be thrown out of home, shunned
by the relatives and acquaintances and face a fate worse than death.

MISCONCEPTION ABOUT
RAPE

Rape clearly is a crime that does not lend itself to one definition and it
is no wonder that it is surrounded by so many misconceptions. There is a
whole package of myths and lies, which mask the real problems about rape and
diverts the attention of the society, so that the key issues of rape remain
obscure and ambiguous and the woman is, attributed all responsibility for rape.
Rape myths serve as a mechanism of social control and oppression of women in
a patriarchal society. Rape myths perpetuate negative social attitudes towards
rape victim and diminish the real level of male violence. They teach women to
blame themselves for their own victimization. The rape myths form the
foundation for structural acceptance of rape in our society and allow rape to
become normative.
The Most Prevalent Myths About Rape Are Mentioned Below:

Rape is purely a sex crime.

A rapist is a sex starved maniac.

Rapists attack without warning.

Rape is the result of a sudden impulse.

Rapists always attack in dark alleys and other secluded public spots and
if a woman would stay at home where she belongs, she would not be
raped .

It is the woman‘s fault she is raped, since a man cannot control

himself once he is aroused.

Women secretly desire to be raped.

Women invite rape by their actions or the way they dress.

Women often ‗Cry rape‘to get revenge or cover up a

pregnancy.

‗Nice women‘are not raped.

Only young : Attractive women are raped.

A strong and healthy woman cannot be raped.

Women who appear unreasonably upset by rape are unstable.

MOTIVATION FOR RAPE

It has been found that most rapists are married or have sexual
relationship with girlfriends and that they are not deprived of sex. Rather than
being primarily an expression of sexual desire, rape is, in fact the use of
sexuality to express issues of power and anger. It is a sexual act which is
concerned much more with status, aggression, control and dominance than
with sexual pleasure or sexual satisfaction.

Rape where sex is the primary motivation

Most classifications refer to rape in which the major motivation is not sex
but some deep-seated psychological drive within the offender. Data from
victimization studies have produced a whole new classification of rapes that
are not included in these categories. These are rapes by non –strangers which
seem to have sex as the primary motivation.

Street wisdom has it that the only difference between rape and rapture
is salesmanship. Sometimes there is a fine line, but basically rape is sex
without consent of female. Also, since the system operates as it does, females
who have put themselves in compromising situations often feel that they have
caused the rape themselves and therefore they do not report it. As the feminist
movement gained strength, it became increasingly clear that acquaintance rape for
outnumber stranger rapes but are no less of a problem for the victim. In
acquaintance rapes, the brutality and violence are usually absent. Since sex is
primary motivation in these cases, any classification of the motivation for rape
would have to include sex in addition to power, anger, and sadism as maturating
factors.
Rape where sex is not the primary motivation

Rape is more for retaliation and compensatory rather than sexual motives
. It is first and foremost an aggressive act that expresses multiple deep –
seated psychological meaning. Rapes where sex is not the primary motivation is
divided into three basic categories.

Anger Rape

Anger rape is described as an expression of anger, rape,

contempt, hated and frustration . In this kind of assault, the victim is subjected
to brutality and force for beyond that which is necessary to obtain her
submission. The offender strikes and beats his victim , he tears her clothes ,
knocks her on the ground, uses abusive and profane language , rapes her, and
frequently makes her perform or submit to degrading acts.

The rapist does not feel sexually aroused, but instead feels troubled
and hostile. Sex is a weapon and rape is the means in which he uses this
weapon to hurt and degrade. His intent is to hurt and his assault is brutal and
violent. He commits sexual assault as an expression of hostility and rage towards
woman with motivation of revenge, humiliation and degradation.

Power Rape

In this type of sexual assault, the rapist uses whatever force is necessary
to gain control over his victim, the evidence of such power being that she submits
to his sexual demands because of verbal threat, intimidation with a weapon,
or physical force. This provides him with a sense of power, security, mastery,
and control, by which he compensates for underlying feelings of inadequacy.
 The attack is premeditated and preceded by fantasies, and it results in
resolution of disturbing doubts about sexual inadequacy and masculinity. He
may believe that the victim is attracted to him and desires his sexual advances,
and yet he finds little sexual satisfaction in the assault. He rapes to prove his
strength and dominance to deny his feelings of inadequacy.

Sadistic Rape

In the sadistic rape, the rapist derives sexual pleasure by torturing and
injuring the victim. The aggression itself is erotic and is an intensely exciting
experience. The assault is deliberate and premeditated; the victim is stalked,
captured and abused. The rapist‘sgenitals may not be involved in the assault and
rape may be by an instrument such as bottle or a stick.

Rape for this reason will involve extreme suffering on the part of the
victim and sometimes will result in death. This kind of rape is likely to be
committed by mentally ill rapists or perhaps by a man under the influence of
drugs.

TYPES OF RAPE

There are two major types of rape:

1. Blitz Rape

It occurs without warning or prior interaction between assailant and

victim. There is no explanation for the man‘spresence. He suddenly appears
uninvited and forces himself into the situation. He often selects an
anonymous victim and tries to remain anonymous himself. He may wear a mask
or gloves or cover the victim‘s face. In the blitz rape the stranger often cannot
be clearly seen and may sneak up on a woman or enter her house at night without
her awareness.
 2. Confidence Rape

The Confidence rape is an attack where the assailant obtains sex

under false pretences by deceit, betrayal and often violence. There is some
interaction between the assailant and the victim prior to the assault. Like the
confidence man, he encourages the victim to trust him and then betrays this
trust. The assault uses conversation rather than physical force to capture the
victim. Confidence rape may involve a decoy, even another woman, and can
include more than one attacker.

TYPOLOGY OF RAPISTS

Rapists are placed in some general categories to describe some of

the characters:-

1. The Criminal Rapists

The rapists who is nothing but an ordinary criminal. This man takes what
he wants with complete disregard for the rights of others. Often he has
a record of offences for crimes rather than rape, and is antisocial, easily
influenced, and demonstrates little self –control. Such a man can be just
as menacing to men as to woman: he is as likely to mug or burglarize as he is
to rape. When he wants something, he takes it, by force if necessary; and
when he rapes, he uses violence, although only to impose his will. He may
kill his victim, but not for sexual gratification, but only to eliminate a
witness. This man‘sattacks are not always planned; in fact, they may be
committed as an afterthought along with burglary or some other offence.
2. The Mentally –ill Rapists

The men in this category confuse aggression and sexual desire and
commit sadistic rape.Their concept of sex including erotic fantasies ,
trends to be wrapped up with over coming , dominating , and humiliating a
sexual partner rather than sharing love and pleasure . Some psychiatrists
believe that in contrast to the criminal rapists, the mentally ill rapists may
respond to treatment.

3. The Group Conformer

Gang rape involves more than one type of rapist. First, there are
leaders who initiate the rape. They can be considered similar to the criminal
rapists in that they are aggressive, often brutal and have no regard for the
victim. The rest of the gang do not fall into the category. The followers in
the group may not all want to perform sex acts with the victim, but most of
them do because of group pressure and the need to prove their masculinity.

4. The Incompetent Romeo

The incompetent Romeo‘sare inexperienced young men who fantasize

about sex, the nice boys who shock their whole community when their
assaults are revealed. Having no practical information on the subject, they are
influenced by pornography and the bragging they hear in locker rooms
and they want to engage in the sexual experiences they believe are
enjoyed by other men. If the victim puts up a strong fight or humiliates him,
this type of rapist may inflict severe harm on the victim or even kill her
The need for power and desire to bolster his self-esteem motives him to rape.

20
 5. The Bargain Hunter

The Bargain hunter‘smotivation is sex. He thinks it is something to be

obtained at the lowest price .He realizes he may have to pay for it in one way
or another, even marry for it. He is an opportunist Hitchhikers are
particularly likely to be become his targets, as are women under the
influence of drugs or alcohol.

The bargain hunter may use a position of authority to coerce a woman

or child into a sexual relationship. Professional men have been accused of
forcing their sexual attentions on clients and patients. Employers and
teachers have also been known to hold threats of loss of jobs or poor
grades against employees or students unless sexual demands are met.

6. The Debt Collector

The debt collectors rape only acquaintances. They believe that sex is
owned them by women who have led them or by girlfriends with whom they
have had a previous sexual relationship. The debt collector is the type of
man who tries to make a woman feel there is something wrong with her if she
does not repay with sex his favors and attention. This man is primarily
seeking sex. He does not look upon his act as rape, since he believes he is
merely taking what he is entitled to.

TYPES OF RELATIONSHIP BETWEEN RAPISTS AND VICTIM

The type of relationship that existed between the rapist and the
victim prior to the time of the rape can be divided into four classifications:

21
1. Total Stranger Rape

In the case of total stranger rape one refers to rape a woman by a

person she has never known before and without any warning or preparation.
The total stranger rapist is motivated by anger, power, or sadism. In fact,
illustration given for this kind of rapist describe situation where the attacker
has assaulted without warning woman he has never seen before.
Statically this type of attack probably comprises a relatively small number
of the total, although it is more likely to be reported.

2. Stranger Rapes based on Confidence in the Rapist

In this kind of relationship, the victim and her attacker have some prior
introduction, although it may be relatively brief and situational . In most
cases, the attacker would have rape as his intent and would manipulate the
situation so as to provide a better opportunity than if he grabbed a
woman when he first saw her. This person is looking for someone to assault
and plans the situation so as to have the necessary time and privacy, and he
also hopes to compromise the victim as a witness in case of prosecution.

This type of rapist can be called a strategic and patient stranger.

3. Acquainted but not Well Known

This include the case where a woman meets a man in a bar, drinks with
him for a couple of hours and invites him to her home. Clearly, she is more
responsible for the situation than in the complete strangerrape. The
motivation of the attacker in this case may not be firmly established at the
time of the chance encounter.It may be that the attacker interprets the
situation as indicating consent on the part of victim but the victim does not.
 Here the victim provides the attacker with what he considers to be
encouragement and an opportunity in terms of privacy.

4. Acquainted and Well Known

When rape occurs in this type of relationship it can be illustrated by a

situation where a man and woman are spending the evening together in
her apartment, but during the evening they argue or he becomes drunk and
aggressive.She asks him to leave, but he refuses to do so and forces her to
engage in intercourse, which he had been anticipating before the evening
was out. An extreme example of this would either be the rape of wife by a
husband after separation or even while living together.

The above classifications of types of relationships seem to be an

important variable between the motivation of rape and type of rape and type
of rapists. These classifications are based on a continuum of intimacy from
strangers to lover.

b) Sexual Harassment: Concept

It is a recently recognized old phenomenon. Sexual Harassment strikes at

the heart of women‘s economic self-sufficiency, disrupting women‘searning
capacity by forcing them out of the workplace or school. In many developed
countries there are specific enactments/provisions which provide the redressed
mechanism in cases of sexual harassment of work place, where as in the
developing countries the legislative processes have been initiated or is being
contemplated. In India, the Supreme Court has pronounced in a landmark
decision of Vishakha v. State of Rajasthanthat regard must be had to the
international conventions and norms for construing domestic laws. In the
absence of domestic law occupying the field, to formulate effective measures to
check the evil of sexual harassment of working
women at all work places, the contents of international conventions and norms are
significant.

According to the General Recommendation 23, sexual harassment

includes such unwelcome sexually determined behavior as–

a) physical contact and advances

b) a demand or request for sexual flavours

c) sexually coloured remarks

d) showing pornography and

e) any other unwelcome physical , verbal or non-verbal conduct of

sexual nature:

The above mentioned definition has been incorporated in Vishakha v.

State of Rajasthan by Supreme Court of India where it has been held that
sexual harassment results in violation of fundamental rights of gender equality
and right to life and liberty enshrined in Constitution of India. Sexual
harassment violates Article 14, 15, 19(1)g and 21 of Constitution of India and
negates the human right of women.

The criminal law recognizes certain forms of Sexual harassment i.e.,

molestation and eve- teasing. The offence of molestation is defined as -
Whoever assaults or uses criminal forces to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, shall be
punished with imprisonment of either description for a term which may extend
to two years or with fine , or with both.
 Furthermore the Indian Penal Code provides that- whoever intending
to insult the modesty of any woman , utters any word , makes any sound or
gesture or exhibits any object , intending , that such word or sound shall be
heard or that such gesture or object shall be seen , by such woman or intrudes
upon the privacy of such woman shall be punished with a simple imprisonment
for a term which may extend to one year, or with fine or both. The offence
under this section is commonly referred to as eve-teasing.

In India, till 1997, sexual harassment at work place was not

specifically recognized by legal system- neither in the form of legislative
enactments, nor through the judicial interpretations by courts. It was for the first
time in 1997, the legal scenario got changed due to the remarkable judicial
activism by the Supreme Court of India, though the legislative position still
remains the same.

Furthermore in Apparel Export Promotion Council v. A.K. Chopra,

the Supreme Court reiterated its earlier stand in Vishaka v. State of Rajasthan,
and held that international instrument cast an obligation on the Indian State to
adopt gender sensitivity in its laws and the Courts are under an obligation to see
that the message of international instruments is not allowed to be drowned.

Justification :

However, despite of these significant developments, the crime rate

against women remains unabated. The data put forth by national crime record
bureau portrays the sordid state of affairs. The statistical data from 1953 to 2010
reveals that this offence of rape has increased tremendously i.e. 791%. The
increase in the instances of rape not only threatens to bid good bye to the moral
precepts but also questions the adequacy of existing criminal law on rape.
Coupled with it is the agonizing factum of failure of control system in
modern India due to which intensity and frequency of violence against women
is increasing day by day.
 A woman suffers not only because of rape but also for aftermath of rape in
the police station, in the hospital, in the court, among family members, among
friends, in the matrimonial market and so on. The rape victim suffers from
social stigma, the fear of public criticism, ostracism and emotional trauma. She
seldom gets moral support from her relatives, friends and neighbors who in their
mistaken belief that socializing with her would ruin their reputation in
the society
.Therefore the alarming rate of increase in

violent crimes against women warrants a re-look at the legal regime.

Henceforth, the researcher has opted for the problem, “AN

ANALYTICAL STUDY OF THE RAPE LAW AND IMPACT

OF THE LAW”.

Methodology

Law is a normative science which lays down norms and standard

for human behavior in a specified situation enforceable through the sanctions of
the state. What distinguishes law from other social sciences is its normative
character. Doctrinal research of course, involves analysis of case law,
arranging, ordering and systematizing legal propositions and study of legal
institutions, but it does more it creates law and its major tools to do so is
through legal reasoning or rational deduction.

The present study is based on doctrinal method of research. The

researcher has drawn help from various articles, books, newspapers, reports,
conventions, commissions and judicial decisions. This topic for study is chosen
as the researcher is of the view that the issue of rape needs immediate attention.
Objectives

The above mentioned study has been undertaken by the researcher keeping
in views the following objectives:

i) To know the position of females in general and sexual

offences committed on her.

ii) To identify the causes of different categories of violence against

women especially rape.

iii) To study the victimological dimensions of rape.

iv) To work out the ways and means for preventing/reducing violence
against women.

v) To study the legislative framework concerning sexual violence

against women especially rape.

vi) To study the judicial approach concerning sexual violence against

women particularly in cases of rape.

It is believed that the study will be helpful so as to build a meaningful

and vibrant supportive system to minimize the chances of rape in India.

27
OUTLINES OF THE CONTENTS OF THE CHAPTERS

Chapter –I

The introductory chapter discusses the concept of sexual violence with

special reference to Rape. A glimpse of past history is given which tells
that women were subjected to male dominance and were denied of rights. It
further discusses the determinants and impact of sexual violence. A statistical
view from National Crime Records Bureau is also shown which reveals a
pathetic picture of increased rate of sexual violence against women in India. This
chapter focuses on the misconceptions about rape i.e, the most prevalent myths
related to rape, types of rape and typology of rapists. These myths perpetuate
negative social attitudes towards rape victim and diminish the real level of male
violence. It further briefs about the motivations for rape and the types of
relationship between victims and rapists. This research provides a bird‘seye

view of the research done in the field of “AN ANALYTICAL STUDY

OF THE RAPE LAW AND IMPACT OF THE LAW”

Chapter –II

The chapter titled, ―Historical Perspective of Rape‖,discusses the

concept of Strisangrahana (Rape) and punishment given by the ancient law
givers like Manu, Narada , Bhraspati, Katya and many others. In ancient India,
rape was a heinous crime and the sanction attached to it was high. It further
elaborates the menace of Rape as putforth in the epics and Muslim law as well
as early British period.

Chapter –III

The chapter titled, ―Rape: Legislative Framework in India‖,deals with

the survey of legislative developments concerning rape from Macaulay to the
contemporary era. It incorporates the perception of Macaulay‘sCommission
i.e., Clauses 359 and 360 of Macaulay ‘s Draft Penal Code that ultimately
culminated
in Sections 375 and 376, Indian Penal Code 1860. The chapter further
discusses the legislative developments and law commission reports in reference
to Rape i.e. the law since independence i.e, 42nd law commission report, the
impact of Mathura case; campaign for amendments and the 84th law
commission report. The chapter further discusses the legislative response to the
proposals for reform of rape laws: the Bill of 1980, Joint Parliamentary
Committee Report of 1982 and the Criminal Amendment act of 1983. It contains
the recommendations made by the 156th and 172nd Law Commissions reports.
Existing law i.e., definition of rape, it‘singredients and punishment thereof
provided in section 375 and 376 of Indian Penal Code 1860.The salient features
of Code of Criminal Procedure (Amendment) Act 2005 and 2008. The features
of Criminal Law (Amendment) Bill 2010 and 2012.

Chapter –
IV

The chapter titled, ―Issues concerning Rape : A Critical

Comparative Analysis‖,highlights the issues relating to the conceptualization of
Rape. It further analyses the issues regarding the medical examination of the
victims, consent of the victim, corroboration, inquiry into and trial of rape in
camera , past sexual history of the victim, and publicity during trial and draws a
comparative analysis of the developments concerning the issues with other
countries.

Chapter –
V

The chapter titled, ―Rape : Judicial Approach in India‖,focuses on

the criteria adopted by the higher judiciary, while imposing punishments in
rape cases. The chapter discusses the judicial decisions in rape cases i.e.
Pratapmishra v. State of Orissa, DhananjoyChatterjee v. State of West
Bengal, BodhisattwaGautam v. SubhraChkraborty, Tukaram v. State of
Maharashtra, State of Punjab v. Gurmit Singh, State of Haryana v. Prem Chand
& Ors , etc.and examines how strict interpretation have affected the judicial
decisions which at times goes against the victim. In this chapter endeavor has
been made to examine the positive contributions of the higher judiciary
respecting the rights of women. The chapter putforth the pragmatic role of
Indian Judiciary in combating the
menace of Rape as well as the approach of Judiciary in relation to
rehabilitative techniques adopted for the Rape victims.

Chapter –VI

The final chapter ―Conclusions and Suggestions‖,putforthcritical

appraisal of the developments concerning sexual offences against women as well
as modest suggestions to reform the prevailing law concerning sexual
offences including rape. The study reveals that the concept of rape can be best
understood by considering rape as a crime of power and not of lust. Rape is not
only a sexual act; it is the most blatant form of violence perpetuated against
women. In India, chastity and virginity are considered to be great assets of a
woman and loss of chastity whether out of choice or force, is a great handicap.
On being raped, the woman is severely criticized and condemned for loss of
chastity. The raped woman faces not only a personal sense of shame, but also is
weighed down with guilt for no fault of her. In a society like ours, where a
woman‘schastity is valued more than her intellect, a woman who has been
raped is ashamed and afraid to identify the criminal. Rape is serious matter
though, unfortunately, it is not attracting serious discussions. The legislature
should intervene and go into the souls of the matter. The role of the courts
under the circumstances assumes greater importance and it is expected that the
courts would deal with such cases in a more realistic manner. Judicial decision
can influence and under certain circumstances even compel the government to
enact the appropriate provisions to cover up the deficiency in the existing law.

30
 CHAPTER - 2

Historical Perspective of Rape

The crime of rape is as old as mankind and Rape de famme is a crime

against a woman. For a man cannot rape a person of equal sex due to its being
homogeneous in character. It is technically termed as homosexual act of
having sexual relationship between the members of the same sex. When such
sexual aberration is between two females, it is termed as lesbianism.
Henceforth sexual crime of rape is penetration of male organ to the female
genitals.

If Gnostics are to be believed, the first woman to be raped was the

mother of mankind, Eve. According to them, the visible universe was the evil
creation of a stupid, false God whose henchman raped Eve in the Garden of
Eden. To us, neither God was stupid or false, nor was Eve raped. But
undeniably this most heinous crime existed and does exist since times
immemorial.

Concept under Hinduism

The Mitakshara states that sangrahana means the unlawful coming

together of a man and a woman for sexual enjoyment. Sinful sangrahana is of
three kinds, viz, brought about by force, deceit or sexual passion. The first
(which is rape) occurs when intercourse is had in a secluded place against the
will of woman , or with a woman who is intoxicated or is disordered in mind
or is under a mistake or who she raises a cry ; the second occurs when a
woman is brought to ones house by some trick or pretense , an intoxicant
(such as dhatura ) is administered to her or her mind is brought under
control ( by chants or otherwise ) and sexual intercourse takes place ; the third
occurs when intercourse takes place by conveying ( passion) to each other by
means of the eyes (glances ) or by employing a go between and when the
parties are drawn to each other by the temptation of beauty or of
wealth. The first is

31
characterized by winking at a woman , smiling at her , sending a go –
between
, touching her ornaments or clothes ; the second by the sending of flowers ,
fruits , incense , food , clothes and indulging in private talks ; the third is
characterized by lying on the same bed , dalliance , kissing and embraces.
Strisangrahan by force (that is rape) is really included under sahasa as stated
by madanaratna.

Brihad states that if a man commits rape on a woman of the same

caste, he was to forfeit all his property, to have his male genitals cut out
and was to be paraded on the back of an ass. That if woman raped was of a
lower caste, then half of his punishment was to be awarded and if she
was of a higher caste, he was to be sentenced to death together with
confiscation of all property.

Katya prescribes that when a man has forcibly had sexual intercourse
with a woman, capital punishment is to be inflicted inasmuch as it is violation
of (proper) conduct. When sexual intercourse was had by deceit, the man was
punished with confiscation of all property, with branding on the forehead of
the sign of the female private parts and banishment from the town. In the case
of rape and sexual intercourse by deceit, the woman was not at all punished
but she had to undergo a penance (prayaschitta) of krcchra or paraka
for contact with a male other than her husband and till she performed the
prayaschitta she was to kept well –guarded in the house, was to remain dirty
(i.e. not to deck herself or apply perfumes) , to lie on the ground ( not on a
bed
–stead or couch ) , was to receive bare maintenance . After performing
prayaschitta she was resorted to her former
position.

Narada holds that sexual intercourse with the step –mother, mother‘s
sister, mother-in-law, the paternal or maternal uncles wife, father‘ssister,
a friend‘s or pupil‘s wife, sister, daughter , daughter-in-law, a woman that
sought protection , an ascetic woman ( pravrajita ) or a virtuous wife
(sadhvi) is incestuous and the punishment to be prescribed for this crime is the
excision of his genital and no less. The punishment for sangrahana (rape
and adultery) varied according to the caste of the man and the woman ,
according as the
woman was married or unmarried and according as she was guarded (gupta)
or unguarded.. According to Narada, sexual relation with another man‘s
wife is
‗Sahasa‘of highest degree prescribing highest ammercement including death
as well as amputation of offending limb. Further the ancient sutras and
smritis prescribe more severe sentences than later smritis.

The Hindu law giver Manu gives example of incestuous relation as

follows :- sexual relation with sisters by same mother, he places sexual
relation with teachers wife at the top incestuous crime. He denounces sexual
intercourse with wife of other man in strong terms. He prescribes heavy
punishment followed by banishment of such offender. But they all went so far
as to say that of a man had a sexual intercourse with a maiden (of the same
caste) who encouraged his advances, then there is no offence punishable by
the king, but he was to bestow ornaments on her, honour her and must marry
her.

Brihaspati Smriti states the woman of east practiced promiscuity and

that was the custom of the land, which was not to be condemned as it was an
accepted custom. Baudhyan, Manu, Yajnavalkya, all great law givers of their
period, state that the wives of actors, singers, etc., could have sexual
intercourse with others, beyond marital relationship, with the knowledge and
approval of their masters or husbands. It is amusing to find from ancient texts
that it was usual with such masters or husbands to remain hidden at the time of
such intercourse and appear in the mid of act or after it , to claim the rent of
such love-making .They lived on their wives.

Apparently from this class of actors and singers arose the institution of
dancers and of prostitutes. The master or husband still continues to exist in
some form in every house of an Indian prostitute. There are reference in
ancient texts which states that no one must be proud of his origin, for none
knows indeed who his father is.
In ancient India, as in later Vedic age, no tolerance was shown to
adulterer Buddhist literature condones murder of a man who is discovered ―in
the arms of another man‘swife‖.But it was not adultery to use a singer or
actor‘s wife, a prostitute (abhisarika) , a public harot (veshya) , a corrupt
woman (svairini) , if she was not of the Brahmin‘scaste, or a slave girl or if
she is not desired by her master.

The word in sanskrit for sexual intercourse with such women is

‗bhujishya.‘In sanskrit husband is called ‗bhartar‘,which means nourishes,
protector and it was considered a great sin to live on the income of wife by her
love affairs as sinful as killing the sacred cow.

It was a usual practice in the ancient India as it was in old muslim

kingdom as also with muslim rulers in the recent past, to keep some woman,
according to the means of the person concerned, for the temporary use of a
guest as a definitive gift to the guest. It is stated in Mahabharata that king
Yudhishtra of the Pandavas kept thousands of girls, young and
bewitching, wearing bracelets and most splendid ornaments, sprinkled with
sandalwood scent, skilled in the 64 arts, and with great skill in dancing and
singing, that they may hospitably wait on the Brahmins, ministers and kings.

The grand old man, Bhishma narrated a story to the eldest brother of
the Pandavas , Yudhishtra about the mighty sage Ashtavakra who was
awakened in the night by an old woman who asked for sexual intercourse .
When the sage did not respond to her entreaties, enticements and allurements,
she remarked, that, neither the God of wind, nor Varun (water-god), nor the
other 33 gods are so dear to woman as the God of love for, to woman, the
pleasure of love is all. Among thousands of woman , there is to be found one
only that is faithful to her husband , if indeed , one at all . They know not
fathers, family, mother, brothers, husband or brother-in-law. Given to their
pleasure, they destroy families, as great rivers destroy banks.
When the sage refused to budge and did not succumb to her passions,
she assumed the shape of a lovely maiden and revealed herself to him as the
goddess of the northern region who had come to test him and to show to him
the fickleness of woman, She said after giving blessings to the sage ―even
old woman are plagued by the feverish longing for man‖.
 Through epics and world history, universe has witnessed the
masculine superiority and priority over the feminine and it has since from
the time immemorial been witnessed practically by all.Nevertheless, the
absence of such crime cannot be ruled out or there is possibility of
presence of such heinous crime, hence this evil is in vogue in our society in
the past, at present and could carry to future.

Crime is eternal as eternal as society and as old as creation itself.

Even God and Goddesses are not free from such impulses. The study of
Vedas and Puranas depicts that sex played prominent role among the people.
Paramours and concubines abound in the society. The love –charms are
designed to win the love of person of opposite sex or to restore lost love.

The great Ramayana demonstrates us the monkey brothers Balee and

Sugriva who had common wives. Tara and Ruma, of course Rama punished
Bali for illicit relation with Ruma. Laxity in sex–life is also noticeable in case
of Ravana by kidnapping Sita and persuading her, through different means to
become his wife, Courtesans are employed in welcoming distinguished
visitors. In Mahabharata, Draupadi was married to five brothers and well
known Vidura was issue of maid –servant having been enjoyed by his master.
Kijok and Duryodhana assaulted Draupadi sexually. The influence of sex on
the society, since early times, has been proved by marked painting and
sculpture of, Khajuraho built by Chandelle dynasty having number of Hindus
Temples including Mahadev Temple, depicting daily chores and intimate
ecstasies of love and sex.

In the Vedic smritis , it has been pointed out that human being are not
only virtuous but also of adorned vices .Therefore it is undenied fact that the
evil propensities are also a part of human nature irrespective of time and
place.The seduction of Angiras Brahaspati‘swife Tara by Soma , the birth of
pururavas out of illicit union of Budha and Illa , the birth of Bharadvaja from
the illegilimate union of Brahaspati with brother‘swife –testifies the laxity in
sexual relation of ancient time.
 According to Kautilya , if a person of any of four caste infringes the
modesty of queen ( kings wife),person so offended had to be cooked to death
but forcible intercourse with a widow ( which amount of rape) living alone
was found penalized with fine plus hundred panas .When the maiden so
defiled was minor, the punishment was severe. This is reflection of our ancient
society that there had been protection of minor during that period according to
the law of that time. Kautilya recognizes prostitutes as a woman first and as
prostitutes afterwards. If a person has sexual relation with a minor girl of
prostitute against her will, he was awarded the highest amercement. But
if such physical relation is with consent of the minor girl of the prostitute,
only first amercement was imposed. When the girl was minor as well as un-
willing, the punishment was heavy. Rape of slave girl and female servant
were common, but viewed seriously and offender were fined only. The
guard of nobles who misbehaved with slave girls were also fined heavier and
the system was to protect them in the society.

Concept under Islam

Islam views human life as a sacred gift from God. The Quran
repeatedly stresses the sanctity of life. The life of every single individual
regardless of gender, age, nationality or religion is worthy of respect. In
verses referring to the sanctity of life, the term used is ‗nafs‘(soul, life); and
there is no distinction made in that soul being young or old, male or female,
muslim or non-muslim.

―Do not take any human being's life, (the life) which God has
declared to be sacred - otherwise than in (the pursuit of) justice: this has He
enjoined upon you so that you might use your reason. ‘

Quranic teachings encompass every aspect of life; hence it does

not limit the definition of life to the physical body only, but includes the
mental, emotional and spiritual aspects as well. There are about 150 verses
that define the term ‗nafs‘in various ways making it clear that the concept of
‗life‘is not limited to mere physical existence.
 Historically, Islam has addressed serious issues openly and sought
to correct actions that constitute harm or ‗zulm‘(ie: cruelty and abuse) to
the dignity of humankind. Human life and respect for it has been stressed
unstintingly, regardless of age or gender. As a general rule, Islam forbids
all
‗zulm‘,be it physical, mental, emotional or spiritual.

―Abandon all harm (ithm), whether committed openly or in secret.‖

In the last address to his community, the Prophet said: ―Your lives
and properties are forbidden to one another till you meet your Lord on the
Day of Resurrection… Regard the life and property of every Muslim as a
sacred trust… Hurt no one so that no one may hurt you... You will neither
inflict nor suffer any inequity. ‖The Prophet (saw) did not prohibit only
the unlawful encroachment of one another‘slife and property, but also honor
and respect.

The Quran has, in various ways and in different contexts; impressed on

men that they must observe the limits set by God (Hudud Allah) in respect to
women and must not encroach upon their rights in either marriage or divorce.
In all situations it is the men who are reminded, corrected and reprimanded,
over and over again, to be generous to women and to be kind,
compassionate, fair and just in their dealings with women. Even in divorce,
when the chances of anger and vindictiveness are high, it is stressed that
men are to separate with grace, equity and generosity.

Forbidding cruelty against children and women is apparent from

rulings against female infanticide and rights of inheritance given even to an
unborn child; and the kindness mandated even when divorcing your wife.
There are numerous ahadith about the rights of children to respect and
dignity. The same holds true for respect and the unprecedented rights given to
women.

will...
‗O you who
believe! You
are forbidden
to inherit
women
against their
 ‗... And do not, in order to gain some of the fleeting pleasures of this
worldly life, coerce your slave women into whoredom if they are desirous of
marriage, and if anyone should coerce them, then, verily, after they have
been compelled (to submit in their helplessness), God will be much
forgiving, a dispenser of grace (to them)‘

During the time of the Prophet (saw) punishment was inflicted on the
rapist on the solitary evidence of the woman who was raped by him. Wa‘il
ibn Hujr reports of an incident when a woman was raped. Later, when
some people came by, she identified and accused the man of raping her. They
seized him and brought him to Allah‘smessenger, who said to the woman,
―Go away, for Allah has forgiven you,‖but of the man who had raped her, he
said, ―Stone him to death.‖

During the time when Umar (raa) was the Khalifah, a woman accused
his son Abu Shahmah of raping her; she brought the infant borne of this
incident with her to the mosque and publicly spoke about what had happened.
Umar (raa) asked his son who acknowledged committing the crime and was
duly punished right there and then. There was no punishment given to the
woman.

Islamic legal scholars interpret rape as a crime in the category of

Hiraba. In ‗Fiqh-us-Sunnah‘,hiraba is described as: ‗a single person or
group of people causing public disruption, killing, forcibly taking property or
money, attacking or raping women (hatk al ‗arad), killing cattle, or
disrupting agriculture.‘

The famous jurist, Ibn Hazm, had the widest definition of hiraba,
defining a hiraba offender as: ‗One who puts people in fear on the road,
whether or not with a weapon, at night or day, in urban areas or in
open spaces, in the palace of a caliph or a mosque, with or without
accomplices, in the desert or in the village, in a large or small city, with one
or more people… making people fear that they‘ll be killed, or have money
taken, or be raped (hatk al ‗arad)… whether the attackers are one or many.‘
 Al-Dasuqi held that if a person forced a woman to have sex, his actions
would be deemed as committing hiraba. In addition, the Maliki judge Ibn
‗Arabi, relates a story in which a group was attacked and a woman in their
party was raped. Responding to the argument that the crime did not constitute
hiraba because no money was taken and no weapons used, Ibn ‗Arabi replied
indignantly that ―hiraba with the private parts ‖is much worse than
hiraba involving the taking of money, and that anyone would rather be
subjected to the latter than the former.

The crime of rape is classified not as a subcategory of ‗zina‘ (consensual

adultery), but rather as a separate crime of violence under hiraba. This
classification is logical, as the ―taking‖is of the victim‘sproperty (the rape
victim‘s sexual autonomy) by force. In Islam, sexual autonomy and pleasure is
a fundamental right for both women and men (Ghazali); taking by force
someone ‘s right to control the sexual activity of one ‘sbody is thus a form of
hiraba.

Rape as hiraba is a violent crime that uses sexual intercourse as a

weapon. The focus in a hiraba prosecution is the accused rapist and his intent
and physical actions, and not second-guessing the consent of the rape victim.
Hiraba does not require four witnesses to prove the offense, circumstantial
evidence, medical data and expert testimony form the evidence used to
prosecute such crimes.

Islamic legal responses to rape are not limited to a criminal prosecution

for hiraba. Islamic jurisprudence also provides an avenue for civil redress for
a rape survivor in its law of ―jirah‖(wounds). Islamic law designates
ownership rights to each part of one‘sbody, and a right to corresponding
compensation for any harm done unlawfully to any of those parts. Islamic law
calls this the ‗law of jirah‘(wounds). Harm to a sexual organ, therefore,
entitles the person harmed to appropriate financial compensation under
classical Islamic jirah jurisprudence. Each school of Islamic law has held
that where a woman is harmed through sexual intercourse (some include
marital intercourse), she is entitled to financial compensation for the harm.
Further,
where this intercourse was without the consent of the woman, the perpetrator
must pay the woman both the basic compensation for the harm, as well as an
additional amount based on the ‗diyya‘(financial compensation for
murder, akin to a wrongful death payment).

Islamic law, with its radical introduction of a woman ‘s right to own

property as a fundamental right, employs a gender-egalitarian attitude in
this area of jurisprudence. In fact, there is a hadith specifically directed to
transforming the early Muslim population out of this patriarchal attitude of
male financial compensation for female sexual activity. During the time of
Prophet Muhammad, a young man committed zina with his employer‘s wife.
The father of the young man gave one hundred goats and a maid as
compensation to the employer, who accepted it. When the case was reported
to the Prophet, he ordered the return of the goats and the maid to the young
man‘sfather and prosecuted the adulterer for zina.

Early Islam thus established that there should be no tolerance of the

attitude that a woman‘ssexual activity is something to be bartered, pawned,
gossiped about, or owned by the men in her life. Personal responsibility of
every human being for their own actions is a fundamental principle in Islamic
thought.

The Quran is very clear that the basis of a marital relationship is love
and affection between the spouses, not power or control. Rape is unacceptable
in such a relationship, ‗Your wives are your tilth; go then unto your tilth
as you may desire, but first provide something for your souls, and remain
conscious of God, and know that your are destined to meet Him...‘

―And among His wonders is this: He creates for you mates out of
your own kind, so that your might incline towards then, and He engenders
love and tenderness between you: in this, behold, there are messages indeed
for people who think‖

―... They are as a garment for you, and you are as a garment for them.‖

40
―... And consort with your wives in a goodly manner, for if you dislike them,
it may well be that you dislike something which God might yet make a source
of abundant good.‖

In the context of jirah, it would appear so: where there is any physical
harm or disease caused to a spouse, there may be a claim for jirah
compensation. The law of jirah provides for compensation for physical harm
between spouses, and supports Islamic legislation against domestic abuse.
Even in these discussions of appropriate jirah compensation, the question of
the injured party‘s consent plays a central role. Some Islamic jurists
considered consent to be presumed by virtue of the marital relationship, while
others maintain that where harm occurs, it is an assault, regardless of the
consent, and therefore compensation is due. In our modern era, one might take
these precedents and their premium focus on consent and apply the Islamic
principle of sexual autonomy to conclude that any sex without consent is
harmful, as a dishonoring of the unwilling party‘ssexual autonomy. Thus,
modern Islamic jurists and legislators, taking a gender-egalitarian perspective,
might conclude that Islamic law does recognize marital rape, and assign
the appropriate injunctions and compensation for this personally devastating
harm.‖

An often misquoted and abused hadith that is used to tyrannize women

is that women cannot and should not say no to their husband when he
approaches them Women are advised not to turn away from their
husbands except if they have their period or any other reasonable excuse.
So much so that she is to break her voluntary fast if her husband
approaches her. And if they do angels will curse them. However, this
hadith is not quoted with the complementary one that advises men of the
same consideration.

In the same manner men are advised that meeting the needs of their
wives takes precedence over voluntary worship. Narrated Abdullah bin Amr
bin Al-As: ―Prophet Muhammad (saw) said, ―O Abdullah! I have been
informed that you fast all the day and stand in prayer all night?‖I said, ‗Yes, O
Allah's Apostle!‘He said, ―Do not do that! Observe the fast sometimes and

41
also leave them at other times, stand up for the prayer at night and also sleep at
night. Your body has a right over you and your wife has a right over you‖.

To a certain degree these ahadith are used to confuse and distract from
the issue, since rape does not have anything to do with permission or lack of
permission. In a marriage abusive or forced sexual activity cannot be justified
by abusing this hadith. Rape is defined as unwanted, violent and forced sex,
whether this occurs in a marital context or outside it. The definition of rape
does not change because of the relationship.

It is important to not confuse the issue of mutual rights that a couple

has on each other with the misguided, distorted and misogynist assumption
that women become a husband's property. Islam does not allow for or
tolerate ownership of human beings. Human dignity does not allow that
any one person has the right to own, mind/body/soul, of another human
being... and Islam demands that all human beings respect the humanity of
everyone.

According to Islam, a woman has to be respected and protected

under all circumstances, whether she belongs to your own nation or to the
nation of an enemy, whether she follows your religion or belongs to some
other religion or has no religion at all. A Muslim cannot outrage her
under any circumstances. All promiscuous relationships have been forbidden
to him, irrespective of the status or position of the woman, whether the
woman is a willing or an unwilling partner to the act. The words of the Holy
Quran in this respect are: ―Do not approach (the bounds of) adultery‖.Heavy
punishment has been prescribed for this crime, and the order has not been
qualified by any conditions. Since the violation of chastity of a woman is
forbidden in Islam, a Muslim who perpetrates this crime cannot escape
punishment.

The Muslim Law equally sternly condemned rape, the punishment

ranging from stoning to death to the infliction of hundred stripes. The scanty
literature available on this area does not throw any light on whether rape was
considered as a crime against a human being i.e. woman or her
perspectives were taken into account at all.
 According to Islam, all aspects of life, i.e; the physical, mental,
emotional and spiritual, are sacred and must be respected. No gender or
relationship has been given the power or right to hurt or harm the other.
Domestic violence, rape and incest are all violent and criminal abuses that are
outside the bounds of what is permitted in Islam and there is absolutely no
justification for it whatsoever.

Thus the ancient literature puts stress on respect and dignity of the
females and every assault on their person is forbidden. The sexual assaults
were clearly demarcated and classified and according to the type of the sexual
assault, punishment has been prescribed, i.e., from simple to rigorous .The
woman had never been a thing to be possessed; but enjoyed the equal status
with man, amply guarded and protected.
 CHAPTER-3

RAPE: LEGISLATIVE DEVELOPMENTS IN INDIA

Criminal Law of a country, in its quest to preserve social order and

solidarity, not only prescribes a set of norms of human behaviour but also
forbids the human conduct against social conditions. It also stipulates
punitive
‗sanction‘for the perilous outlawed
conduct.

However, the kind of conduct to be ‗forbidden‘and to the formal penal

‗sanction‘considered as best calculated to prevent the officially outlawed
conduct depending upon the ‗social setting‘and ‗socio- moral-legal ethos‘ of
a community. Nature and contents of criminal law and social (punitive)
reaction to the violation of penal law, therefore, varied with changes in social
conditions.

Penal law of a country, therefore, needs to be appreciated and

understood in the backdrop of its prevailing social, moral and cultural values
and political ideologies.

Rape: Perception Of Macaulay’s Commission

In British India, the Courts set up by the East India Company

administered and adopted Muslim penal norms of criminal justice. In 1828, an
Act for improving the administration of criminal justice in the British colonies
in Asia was passed, which declared rape as an offence punishable with death,
provided the girl was below 8 years and with imprisonment in other cases.

In 1834, Thomas Macaulay landed in India to take his seat as Law

member on the Supreme Council, under the charter of 1833. He undertook the
herculean task of providing a code of substantive criminal law for India. He
devoted clauses 359 to 360 to the offence of rape in the Penal Code.
Section- 359 defined the offence and section-360 specified the punishment for
it.
 As observed by Vasudha Dhagamwar , Clause 359 reflected the
‗Victorian notions ‘of morality. It attracted several comments from the
judicial officer of East India Company. Messrs Campbell and Pyne of
Madras Presidency argued that a woman, who submitted to threat of trivial
hurt, was not reluctant and did not deserve the protection of law. Greenhill,
a judicial officer, suggested that ‗hurt‘should be amended to read ‗grievous
hurt‘. This suggestion was accepted by the Law Commissioners, but was
rejected by J.M. McLeod his notes on the Report of the Law
Commissioners. He went to remark that these sections were not intended to
protect only ‗rigid chastity‘.

J.F. Thomas , a judge in Madras Presidency, criticised the code for

giving too wide a range of punishment. He argued that once the commission
of rape is proved, character of the woman should be no criteria and same
punishment should be awarded to all offenders. But the Law Commissioners
took a different view and held that injury in case of a high class woman is
surely infinitely more than in case of a woman of low caste, who was
presumed to be without character. It is pertinent to point out that both Law
Commissioners and Thomas saw the problem in terms of a high caste
woman‘sviolation by low caste man as the most heinous of rapes requiring
the strictest punishment. Hence, instead of assuring equal protection of law
for all, the Commissioners were only reinforcing the caste system hierarchy.

Section-375 of the final version differed from Clause-359 as it

incorporated an important amendment that ―sexual intercourse by a man with
his own wife, the wife not being under ten years of age, is not a rape‖.No
reasons for this change were given by the Select Committee.

For thirty years, after the enactment of Indian Penal Code 1860, rape
law remained the same. The later change was owing to a number of
cases in Bengal in which the child wife died due to consummation of
marriage. Out of these, the most notable was Queen Empress v. Haree
Mohan Mythee. This case tells the pathetic story of Phulmonee Dassee, who
was eleven years and three months old when she died as a result of rape
committed on her by her husband. The medical evidence showed that
Phulmonee had died of bleeding
caused by ruptured vagina. In this case, rape of child wife was severely
condemned and it was held that the husband did not have the right to enjoy the
person of his wife without regard to the question of safety to her.

In 1891, Sir Andrew Scoble introduced the Bill, which culminated into
Indian Criminal Law (Amendment) Act, 1891. This Act raised the age of
consent to 12 years both in cases of marital and extra-marital rapes. The
object of Act was humanitarian, viz. ―to protect female children from
immature prostitution and from pre-mature cohabitation‖. Pre-mature
cohabitation resulted in immense suffering and sometimes even to death of
the girl and generally resulted in injury to her health and that of her progeny.

Beginning of the 20th Century witnessed increased public attention

towards the improvement in the physique of the nation and the reduction of
causes leading to abnormal mortality of younger generation. In 1922, Rai
Bahadur Bakshi Sohan Lal, MLA, moved for leave to introduce a Bill in
the Assembly to amend section-375, IPC, by raising the age of consent in
both marital and extra-marital cases. This attempt to legislation proved
futile, but with the passing years, agitation for a modification of law steadily
grew owing to a better knowledge of the evil consequences of early
marriage and early consummation.

In 1924, Dr. Hari Singh Gour introduced a Bill to amend section-375,

IPC, raising the age to 14 years in both marital and extra-marital cases. The
Bill was referred to a Select Committee, which made a material alteration
by reducing the age from 14 to 13 years in the case of marital rape. On
1st September 1925, Sir Alexender Muddiman introduced the Bill fixing 14
years the age in extra-marital cases and 13 years in marital cases, which
culminated into Amendment Act, 1925. The amendment in 1925 for the first
time introduced a distinction between marital and extra-marital rape cases by
providing different age of consent in marital rape cases. The distinction was
further emphasised in section-376 by incorporating the words –―unless the
woman raped is his own wife and is not under twelve years of age‖,in which
case the punishment was diluted by prescribing a maximum of two years.
Thus, the purpose aimed to be achieved by raising the age of consent to 13
years, stood mitigated to a large extent by the diluted punishment provided by
amended section-376.

The question of age of consent was not considered as finally settled and
Dr. Hari Singh Gaur again introduced a Bill in 1927 to raise the age to 14 and
16 years in marital and extra-marital cases respectively. It was followed by
the appointment of Age of Consent Committee, which reviewed the
prevailing situation and suggested few amendments.

The Committee was of the opinion that the amended law was ineffective
due to the nature of the offence, particularly in case of marriage as
consummation necessarily involves privacy. The prevalent view among the
awakened sections of society was that prohibiting the marriage of a girl under
a particular age would be a better measure than to increase the age of consent
for sexual intercourse. The dissenting group among these classes felt that law
was partly futile because it afforded no protection to the girls over 13 years,
who need it on account of their tender age. The Committee recommended the
use of term ‗marital misbehaviour‘instead of rape in marital cases. The
offence of marital misbehaviour would be committed by a husband in case
of sexual intercourse with his wife below 15 years of age. The Committee
recommended the inclusion of offence of marital misbehaviour in Chapter
XX of IPC and section-375 and section-376 of the IPC should be confined to
rape outside the marital relation..The Committee also recommended
maximum punishment of either description for 10 years and fine where the
wife was below 12 years of age and imprisonment, which may extend to one
year or fine or both, where wife was between 12-15 years.

LAW SINCE INDEPENDENCE

In 1949, rape laws were further amended in respect of the age of consent.
The age was raised to 16 years in clause fifth of section-375, dealing
with extra-marital cases and 15 years in the exception dealing with the
marital cases, by section-3 of the amending Act. Another amendment was
brought
about in 1955, which substituted the words ‗transportation for life‘by
‗imprisonment for life‘in section-376.

The Indian Law Commission had stated its intention of revising the
Indian Penal Code in 1959, but it was only after twelve years, in 1971 that
the Law Commission could send its report on the IPC to the Union Law
Minister.

The main recommendations of the 42nd Law Commission Report are as

follows-

1. The members of Law Commission noted that under the third clause of
section-375, consent of the woman is vitiated only when she has been put
in fear of death or bodily hurt to herself. The clause did not cover
the situations, where death or grievous hurt is threatened to someone else
present on the spot. They suggested the addition of words — either to
herself or to anyone else present at the place after the word ‗hurt‘to
cover such situations.

2. The members of Law Commission took note of the case of forcible sexual
intercourse by the husband, when the couple had been living apart under a
decree of judicial separation or by mutual agreement. They considered that
such sexual intercourse should be treated as rape.

3. The members recommended that the forcible intercourse by husband when

the wife is under 15 years of age, should not be called rape in the technical
sense and the punishment for the offence may be provided in a separate
provision. They recommended section-376-A, which provided for the
punishment for sexual intercourse with his child wife.

4. The members opined that in case of a girl between 12-16 years, who
consented for the intercourse, the offence should not be equated and not
punished as severely as rape. They recommended a separate section-376-
B for such cases and the maximum period of punishment was prescribed
as 7 years.
5. The Law Commissioners prescribed enhanced rigorous punishment of 14
years for the offence of rape.

6. The most significant contribution by the Law Commission was the

recognition of the phenomenon of ‗custodial rape ‘.It was commented that
under certain situations, woman‘ssubmission to sexual intercourse is really
not a willing consent, whereby men in authority take advantage of the
women under their custody. Sections -376-C, D and E were
recommended, prescribing for punishments in cases of illicit intercourse
by a public servant, superintendent of women's or children's institution and
manager of a hospital.

The 42nd report had few inherent anomalies :

1. Section - 376-A as suggested by the Law Commission, which provided for

the punishment for sexual intercourse with child wife in fact diluted the
punishment in case of wife under 12 years of age. The Law, then
prevailing, provided a discretion to the Court to extend the punishment upto
2 years in all rape cases, whereas the suggested Section reduced the
punishment to a maximum of 2 years.

2. The patriarchal notions were reflected in the provisions as the maximum

punishment provided in section-376-B, for the rape of a girl between 12-16
years, who had consented was 7 years with fine and the maximum
punishment for her married counterpart only 2 years.

3. Whereas the cases of illicit intercourse of public servant, superintendent

of children‘s or women's institution and manager of a hospital, etc.,
were covered under sections 376-C, D, E, custodial rapes committed by
police, were not even recognised by the Law Commission.
 The 42nd Law Commission Report was followed by the IPC
(Amendment) Bill, 1972. A Joint Committee was appointed to review the
Bill, which presented its report on Feb.29, 1976. Its main observations
were as follows :—

1. The Committee was of the opinion that sexual intercourse by a man with his
own wife whatever might be her age, should not be regarded as rape.

2. The Committee diluted the maximum punishment to 10 years from life

imprisonment, which could be imposed depending upon the gravity of
offence.

3. Punishment for 3 years was recommended in case of judicially separated

wife.

4. The cases of custodial rape, cases of seduction by the public servant etc.,
taking undue advantage of his position, were recognized and
compulsory imprisonment with fine were imposed as punishment. In case
of a mental patient, the rapist ‘sknowledge of her condition was rendered
irrelevant.

The Bill of 1972 also lapsed and for more than 100 years old rape law
continued to exist with minor amendments from time to time regarding the age
of consent. In 1979, the Bill, which was passed by Rajya Sabha and
was pending in Lok Sabha lapsed because of the dissolution of Lok Sabha in
1979.

IMPACT OF MATHURA CASE; CAMPAIGN FOR AMENDMENTS

AND THE 84TH LAW COMMISSION REPORT

The decision of the Supreme Court in Tuka Ram v. State of

Maharashtra created furors in the field of rape law. The facts of this case
were so peculiar and the decision so coldly legalistic and unjust that it led to
the culmination of mass movement for the amendment of rape laws.

50
 In this case, Mathura was a young girl of 14-16 years. She had
developed a relationship with her employer‘scousin. On March 26 1972, her
brother filed a report that Mathura was kidnapped by her employer and
her boy friend. They were all brought to the Police Station at 9 P.M. and their
statements were recorded. When everybody started to leave, Mathura was
directed to remain at Police Station by Tuka Ram, the Head Constable and
Ganpat, a Constable. While both Policemen were on duty, they bolted the
doors and put off the lights. Ganpat raped Mathura and Tuka Ram fondled
her private parts. Tuka Ram was too drunk to rape Mathura. A crowd
gathered outside and then shortly after Mathura came out and announced
that she had been raped by Ganpat. Mathura was examined on the next day.
Her report showed old ruptures of hymen and that she was habituated to
sexual intercourse. In Sessions Court, this fact was held against her and the
accused were acquitted. It was held that Mathura had in fact consented to
the act. The Bombay High Court reversed the decision and sentenced Tuka
Ram to rigorous imprisonment for 1 year and Ganpat for 5 years. The
High Court held that mere passive submission or helpless surrender of the
body and its resignation to the other ‘s lust induced by threats or fears cannot
be equated with consent.

The Supreme Court reversed the decision and held that Mathura had
consented to the act. There were no injuries on person of Mathura, thus, it was
held that the story of rape was concocted by her and her testimony was
disbelieved. Further, it was held that only fear of death or hurt could vitiate
consent in the clause thirdly. The operation of clause secondly was not even
considered.

The decision drew attention of four law teachers; Prof. Upendra

Baxi, Prof. Raghu Nath Kelkar, Prof. Lotika Sarkar of Delhi University and
Prof. Vasudha Dhagamwar of ILS, Pune. In October, 1979, they wrote an
‗Open Letter to the Chief Justice of India‘, protesting against the
judgement. This letter created an unprecedented furor and received
tremendous publicity from the Press. The Open Letter criticised Supreme
Court judgement and stated that there is a clear difference in law and
common sense between consent and submission. The facts of the case
revealed submission on part of Mathura and
51
not the consent. It was questioned in open letter, is the taboo against
pre- marital sex was so strong as to provide a licence to Indian Police to
rape young women.

This decision shook the conscience of many belonging to civilized

society for the custodians of law and order and had taken advantage of an
innocent girl and turned the Police Station into a theatre of sex. Thus,
Mathura case has become a major reference point for any discussion on rape
laws.

There was a nationwide movement for the amendment of law and many
mass protests, demonstrations and meetings were organized by the women
organizations, lawyers, teachers, students, social workers, etc. An academic
protest by a group of four got transformed into a national wave and, thus,
became a unique event in history of criminal law. The judgment was widely
criticised both inside and outside Parliament as an extraordinary decision
scarifying human rights of women under law and the Constitution. The
Government took serious note of the rare degree of sensibility of public as
well as of the parliamentary criticism of the law and its failure to safeguard
the rights of innocent rape victims. Thus, the Law Commission was
appointed to submit its report on law relating to rape and allied offences in
1980. The Law Commission submitted its 84th Report in a remarkable time
period of less than one month.

The main recommendations of the 84th Law Commission Report were as

follows :—

The Substantive Law

1. The Law Commission devoted special attention to the concept of consent.

They emphasized that the consent should be active consent, which is not
said to be implied by silence. They suggested the substitution of the word
‗consent‘by the words ‗free and voluntary consent‘in section -375.
2. The Law Commission considered that in the third clause to section-375, the
consent is vitiated not only when a women is put in fear of death or hurt,
but also when she is put in fear of any ‗injury‘being caused to any
person, including herself in body, mind, reputation or property and also
when her consent is obtained by criminal intimidation. Thus, they
suggested the insertion of word ‗injury‘in third clause to section-375,
which would take care of situations, in which woman is threatened with
injury to herself or anyone else in whom she is interested.

3. The Law Commission pointed out that rape can be committed without
overt violence and the injuries on the person of the woman are not the
compulsory and conclusive evidence of the commission of the crime.

4. The Law Commission suggested that addition of sub-clause (b) to clause

fourthly, to take into account numerous situations falling under the guise of
misconception.

5. The Law Commission suggested that a new clause fifthly should be added
to section-375, covering the situation when consent is obtained by
intoxication or administration of some stupefying substance to the woman.

6. The Law Commission made a strong suggestion to raise the age of consent
to 18 years. It was asserted that when according to the Child Marriage
Restraint Act, 1929, marriage of a girl below 18 years is prohibited
then sexual intercourse with a girl below 18 years should also be
prohibited.

7. The Law Commission recommended that a rape of child wife should not be
dealt separately. Explanation II dealing with judicially separated wife was
retained.

8.. The Law Commission retained the recommendations of 42nd Report in

regard to sexual offences committed by a public servant, superintendent
or manager of a woman‘sor children's institution and a person on the
management of staff of a mental hospita1.
9. The Law Commission opined that the discretion of the Court to award
punishment should remain unfettered. The maximum limit of
punishment was life imprisonment or punishment upto 10 years.

10. In cases of gang rape, where more than one person raped the woman
one after the other, each one of them should be punishable with a
maximum punishment of 10 years rigorous imprisonment. Similar
punishment was also suggested in cases of minor rape, rape of a pregnant
woman and rape by a Police Officer.

Arrest and Investigation

1. The Law Commission suggested the addition of a proviso to clause (1) of

section-46 Cr. P.C., dealing with the manner of arrest of a person, which
would spare a woman the indignity of being touched by strange men. Thus,
a male Police Officer could lay hands on a woman being arrested only in
exceptional circumstances.

2. The Law Commission recommended the addition of section-417-A in

Cr.P.C. for keeping a woman under detention in women‘sor children‘s
homes.

3. The Law Commission considered that woman Police Officers alone should
interrogate female victims of sexual offences. They also recommended
the additions to section-160, Cr. P.C. to provide that the statement of the
rape victim, when she is under 12 years of age should be recorded by a
female Police Officer or a person interested in welfare of women or
children as recognized by the State Government.

4. The Law Commission emphasized that the interrogation under section-

160 (1) of Cr. P.C., should take place at the dwelling place only and the
Police Officer, who violates such provisions should be punishable under the
new Section 166-A, IPC with one year punishment or fine or both. The
Law
 Commission also recommended a woman should not be interrogated after
sun set and before sunrise and a social worker should be permitted to be
present during interrogation.

5. The insertion of section-167-A to IPC was also recommended, which

punishes the failure of non-recording of any information regarding
any cognizable offence.

Medical Examination of Accused and the Victim

The Law Commission observed that procedures for examining the accused
and victim are quite cursory and tardy. Hence, they recommended addition of
sub-section (1A), (1B), (1C) and (1D) to section-53, Cr. P.C., which deals with
the medical examination of the accused in all cases and the insertion of a new
section 164-A to Cr. P.C. to improve in the Camera existing and provisions
regarding of the medical examination of the victim.
Trial in Camera and Publication of Proceedings during Trial

1. The Law Commission endorsed the need of trial in camera and

recommended the addition of proviso (2) to section-327 Cr. P.C., which
provides for the court to be open.

2. The Law Commission felt that in cases of rape to avoid the embarrassment
to the victim due to the publicity during the trial new section 228-A, should
be added to the IPC, which provided punishment in cases of violation of
prohibition regarding publicity of proceedings.

Evidence

The Law Commission recommended various changes in law relating

to burden of proof and character of the woman.
1. Insertion of a new section 111-A was recommended in the Indian Evidence
Act, 1872, which shifted the burden of proof on the accused instead of
prosecutrix, that the act was done with the consent of woman.

2. The Law Commission recommended that in section-155 (4) of the Indian

Evidence Act, the evidence of sexual relations of prosecutrix other
than with the accused should not be permitted . On similar lines,
addition of clause (4) to section-146 was recommended, which would
render it unpermissible to put questions in cross-examination of the
prosecutrix as to her general immoral character.

3. The Law Commission recommended the insertion of a new section-53-A,

which rendered the evidence related to prosecutrix ‘s previous sexual
relations with any other person than the accused, irrelevant.
THE BILL OF 1980, JOINT PARLIAMENTARY COMMITTEE
REPORT OF 1982 AND THE AMENDMENT ACT OF 1983.

After considering the recommendations of the Law Commission,

Criminal Law (Amendment) Bill, 1980 , was introduced in Lok Sabha on
12th August, 1980. The Bill was referred to a Joint Committee of both
Houses on 23rd December, 1980. The purpose of Bill of 1980 was to
make rape law more stringent and to create conditions in which the victim
is not inhibited by fear or embarrassment to prosecute the offender.

The Bill departed from the recommendations of 84th Law Commission

mainly in the following ways :–

1. It shifted the burden of proof on the accused only in cases of custodial

rape, gang rape, rape of a minor and pregnant woman.

2. Only a married woman could plead the misconception of fact in clause

fourthly to section-375.

3. Punishments to section-376-A, B, C, were enhanced to 5 years.

4. It included sections-375, 376, A, B, C under the heading ‗Sexual

Offences‘in the IPC.

The Joint Committee held forty four sittings in various parts of the
country. It invited memoranda from Goverments, voluntary organizations,
lawyers, press organizations, bar association and public spirited
individuals. The Joint Committee submitted its report on Nov. 2, 1982.
Unfortunately, the Committee took few grave retrogressive steps :–

1. The Joint Committee did not accept the words ‗free and voluntary
consent‘in place of the word ‗consent‘in section-375.
 2. The Joint Committee reduced the age of marital rape from 15 years to
12 years. If this suggestion had been incorporated in the Amendment Act, it
would have led to a retrogressive leap to 1891, when the age of consent for
marital rape was 12 years.

3. Though the Committee inserted section-376-A to acknowledge the

rape cases of judicially separated wife, it diluted the punishment upto 2 years
imprisonment only. The Committee took the view that this could help in the
re-conciliation between the spouses.

The Criminal Law (Amendment) Bill as reported by the Joint Committee

was introduced in Lok Sabha on Nov. 18, 1983, by the Minister of Home
Affairs. The Bill took almost 3 years to be introduced in Lok Sabha, which
can be considered as a reflection on the seriousness of the Government's
approach towards it.

The Debates heavily focused on the publicity during the proceedings,

punishment, particularly in custodial rape, marital rape cases and
compensation to the rape victim. It was observed that prohibition of
publicity will make the purpose of the section futile as it was severely cut off
the scope for mass movements as were witnessed in Mathura Case. It was
stated that section-228-A had gone too far in protecting the woman from
publicity as it curtailed the possibility of all help, which press can render in
building mass awareness and agitations in rape cases.

The House was divided over the issue of marital rape and the punishment
to be awarded in rape case. On marital rape, there were many suggestions that
it should not be treated as an offence at all whereas few members were
in favour of its recognition as an offence. Regarding punishment, few
members recommended the infliction of capital punishment in rape cases,
while few others found the punishment already provided by law was too
severe. Rapes in custody were severely criticised and many members
recommended that more severe punishment should be prescribed for such
cases. Few members also reacted that all custodial intercourses cannot be
treated as rape because some
element of consent could be present in such cases. Compensation to the
rape victim found firm support in the Lok Sabha. The reactions of Lok
Sabha members are a good reflection on the patriarchal influence and
perceptions in our society.

THE EXISTING LAW

In 1983, after being debated in Lok Sabha for three days and in
Rajya Sabha for two days, the Bill finally received President‘sassent on
Dec 25, 1983 and culminated into the Criminal Law (Amendment) Act, 1983,
which is the existing law at present.

The legal definition of rape as incorporated in section-375 of the

Indian Penal Code, 1860, reads as follows :–

375. Rape –A man is said to commit rape, who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions :

First –Against her will.

Secondly –Without her consent.

Thirdly –With her consent, when her consent has been obtained by putting her
or any other person in whom she is interested in fear of death or of hurt.

Fourthly –With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.

Fifthly –With her consent, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance,
who is unable to understand the nature and consequences of that to which she
gives consent.

Sixthly –With or without her consent, when she is under sixteen years of age.

Explanation –Penetration is sufficient to constitute the sexual intercourse

necessary to the offence of rape.

Exception –Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.

Ingredients of Rape

1. Against her Will

There must be the utmost vehement exercise of every physical means

and faculty within a woman‘spower to resist the act of the aggressor, to
resist the penetration and this must be shown to persist until the offence is
committed. The opinion of medical experts shows that it is very difficult for
a person to rape single handed, a grown up and experienced woman
without meeting stiffest possible resistance from her.

Referring the first clause ―Against her Will‖, the phraseology has
never been defined by the act , except to assume the meaning there from
after the meaning of ‗will‘and ‗against‘,where will is the faculty of mind of
conscious and particularly of deliberate action , the power of control of
mind over its own action or proper exercise of one‘svolition in making a
decision. The word, ―will‖ literally means power of choosing or
determining, volition or choice and the expression.

―Against the Will‖,as appended under section 375 IPC clearly refers to
a woman (who is ) in full sense or full possession of her sense and reason
or who in other words, is fully conscious normal and reasoning
accompanied with deliberation , after mind has weighed, as in a balance , the
good and the

60
evil on each side, with the existing capacity and power to withdraw the assents
according to one‘swill or pleasure.

But the every act done against the will of a person, no doubt , is done
without her consent ; but an act done ―without her consent‖of a person is not
necessarily against her will which expression imports that the act is done
in spite of the opposition of the person to the doing of it.

A victim‘sstruggle and protest against the offenders clearly proves

commission of rape was against her will. The will and consent would
ordinarily refer to the same act of mind. They are both functions of volition,
but as the term consent is susceptible of some variation in construction, and
may include a subsequent consent which the word will necessarily exclude.

The Indian penal code draws distinction between act done against the
will of a person and an act done without the consent of a person. In view to
this distinction between the two phraseology ―against the will‖and
―without the consent ‖,section 90 IPC, helps in distinguishing the two
concepts therefore every act done against the will of a person is an act of
doing a thing or an act done without his consent, but an act done ―without
her consent‖of a person is not necessarily against her will which expression
imports that the act is done in spite of the opposition of the person to the
doing of it.

While the term will refers to the previous or concurrent consent, the
second clause –without the consent –may include also a subsequent consent.
There may, moreover arise in a case where the consent may not be vitiated by
any one of the reasons contemplated in section 90 of the IPC and still the act
may be rape, because it was against the will of a woman ravished.

Rape of tender aged person between 2 months to 7 years old

would amount to rape against her will, while rape of girl between 7 to 8
years or above but below 16 years would amount to rape against her will and
as well as without the consent of the victim.

61
 In the case of rape one of the most and foremost circumstances
generally expected in the evidence is resistance from the victim. Any
unwilling victim of the offence is expected to receive injuries on her person so
also the accused is also expected to receive the same. Under such
circumstances , interference of unwillingness or the act of rape was against
the will of the victim can be inferred well, for virginity is the most
precious possession of an unmarried girl and she will never willingly part
away with this proud and honour .

2. Without her consent

Section 375, IPC secondly lays down that A man is said to commit
―rape‖if he has sexual intercourse with a woman without her consent
.

The word consent has not been defined by the Indian Penal Code but its
meaning has been gathered from the facts and the circumstances of the
commission of the offence. While dictionary meaning of the consent is to
agree in sentiment, permit or approve, acquiescence .Consent is an act of
reason, accompanied with deliberation, the mind weighing as a balance, the
good and evil on each side. Therefore, one cannot consent to a thing unless
one has a knowledge of it. It is an agreement of opinion on the part of all the
concerned.

CONSENSUS EST VOLUNTAS PLURUIUM AD QUOS RES

PERTINENT, SIMUL JUNCTA , means consent is conjoint will of many
(more than one) persons to whom things belongs. Where there is consent then
, that consent makes law –CONSENSUS FACIT JUS –hence where rape is
committed with consent ( where meeting of mind to do such act ),there is no
rape.

Referring to section 375 IPC, woman can be said to have consented to the
act only when she has submitted herself willingly and freely, while in free and
unconstrained possession of her physical and moral power to act in a manner
she wanted, therefore consent implies the exercise of a free and
untrammeled
right to forbid or withhold what is being consented to; it always involves a
voluntary act and conscious acceptance of what is proposed to be done by
another and concurred in by the former. A person is said to have consented if
she is aware of the act and the consequences of such an act and is ready to
bear the same.

IPC does not define the word consent but section 90 IPC gives indirect
meaning thereof so far it relates to the word consent as contemplated in
section 375 IPC.

Where the prosecutrix accompanied the accused to the house of someone

and stayed there for about a week and did not disclose the incident to
anybody even without being under any threat, inference could be drawn that
she was a consenting party and the accused was held to be entitled to
acquittal. The prosecutrix, did not disclose the name of the accused to
her parents early though she knew him. She disclosed the name only when
the doctor found that the profuse bleeding from her private part was due to
sexual intercourse, it was held that the prosecutrix being a consenting
party and she being not a minor, it was not a case of rape.

Where a blind helpless girl was raped by the accused, it was held that
expression consent cannot be equated to inability to resist out of
helplessness and absence of injuries on the victim also does not by itself
amount to consent by her.

3. With her consent, when her consent has been obtained by putting her
or any person in whom she is interested in fear of death or of hurt.

Section 375 , clause third , states that a man is said to commit rape when
he has sexual intercourse with her consent, when her consent has been
obtained by putting her in fear of death or of hurt. Such fear might be to put
any person in whom she is interested.
 While IPC defines, death under section 46 and hurt under section 319
IPC, the code does not define what amounts to ―fear‖. It means a
distressing emotion aroused by an impending pain and danger and evil
and a specific instance of such a feeling or something of which one is afraid
of or that causes fright or apprehension. For eg. unless the prosecutrix
surrenders her person, the accused might kill her son is an apprehension or
fear of death.

Surrender as a passive consent might also be from threat angle or

black mailing of a girl. The word fear concerns and pertains to the victim
of the offence who received it from the person who uses the criminal force
so as to change the feeling of prosecutrix without her consent in order to
commit the offence, in such a way that by use of force she will be
frightened so as to compel her to surrender her body unwillingly. In view of
this , a force so used need not be an actual physical force , may be direct
or indirect force say- holding out minor child and threatening to kill the
minor unless she submits to the offender for sexual intercourse an indirect
threat or a sort of fear mounted to her indirectly without direct physical
force. Thus absence of injury , in the rape case , may not amount to consent
sometimes, for absence of injury may or may not indicate the absence of
physical violence and absence of physical violence , by itself, does not
mean that the sexual intercourse has not been committed forcibly.

4. With her consent under a mistaken belief.

The fourth clause gives that he whoever induces a woman to have

sexual intercourse with him by personating as her husband commits rape.
Thus if the consent under misconception of facts has been obtained, or when
the consent is obtained by impersonating as her husband, the offence under
the section has been committed which is punishable under section 376 I.P.C.

It is called as disgusting clause, for the clause gives offended taste

of moral sense of Indian woman. May one ask, ―how is it possible for a
woman to be mistaken by a stranger as for her husband ‖?. This type of
contingency is conceivable where a man approaches the victim during sleep,
or in the dark, or
under circumstances when recognition is impossible, but she could detect
by voice, in the circumstance the ravisher might intend to go further by
using force to complete the act in spite of resistance and after detection.

Two things are possible; A) if she discovers the mistake before

consummated and does not resist, the act would probably ceased to be a rape
for consent can be inferred from the non resistance and; B) if detected after
the consummation, of course, the man approaching her is guilty of such
imposition for he intended to pass for her husband.

Under such situation consent given by a woman to a man under

misconception of facts that he was her husband was, of course, no consent at
all. In order that section 375, fourthly, Indian penal code may be attracted,
the consent by the woman must have been given because she believes that
the offender is another man to whom she is married or believes herself
to be lawfully married. When the consent by the woman to the accused
having sexual intercourse with her was not given under the belief that the
accused was another person to whom she believed herself to be married
but where the woman believed that she had been married to the accused,
clause fourth will not be applicable.

5. With her consent due to intoxication

In view of clause fifth of section 375 IPC, rape can undoubtedly be

committed on woman while she is in a state of unconsciousness which might
have occurred in an ordinary course or as a result of administration of
Narcotic
, Intoxicating or Anesthetic drugs. It is accepted fact that it is very
difficult, unless over –powered, to rape a healthy woman in full sense. She
is bond to offer resistance and a struggle is invariably followed, as a
result of which injuries are bound to be found on the body of victim, on the
person and even on the part of the accused.

But in case of unconscious state of mind due to administration of drug or

any other stupefying things of unwholesome substance and where is unable to
understand the nature and consequences thereof , there is likelihood of
absence of violence or any evidence of struggle in committing the offence of
rape as the victim has been incapacitated by the administration of narcotic
drugs and consent obtained under such incapacitated circumstances is no
consent and the offence under section 375 is said to have been committed
against her.

Where a girl was going for study, appellant took her to a lonely house
hill and she was made to sit and appellant forcibly thrushed in her mouth a
liquor bottle and she was made to drink the liquor. Thereafter appellant
undressed her and committed rape on her. It was held that the accused person
committed rape on the prosecutrix forcibly and without her consent.

6. With or without her consent, when she is under sixteen years of

age.

This is one of the important clause under the section and enacted with the
view to protect minor girl of the society. The clause simply declares that an
act done even though with the consent of a child under 16 years of age would
be a rape, her consent had precocity being both immaterial .The fact that such
a girl can discriminate between right and wrong and invited the accused to
the act are both wholly irrelevant, for the policy of law is to protect children
of such immature age against sexual intercourse.

The age limit in this clause was raised to 16 years by an amendment of

the Act in 1949.The Indian Penal Code has raised the age twice earlier
prior to present standard. The age limit was raised from 10 to 12 years by
the Indian Criminal law Amendment Act of 1891. It was again raised from 12
to 14 years by the Indian Penal Code Amendment Act of 1925. The age limit
at present is 16 by an Act of XLII of 1949. The limit raised in age is to
protect children from pre –mature cohabitation and prostitution in view of our
society which is afforded by other sections of IPC.

The Criminal Law Amendment Act has substantially changed sections

375 and 376 of the IPC. Several new sections have been introduced
therein- viz., sections 376(A), 376(B), 376(C), 376(D) of the IPC.

Section- 376(A) punishes sexual intercourse with wife without her consent by
a judicially separated husband.

Section- 376(B) punishes for sexual intercourse by a public servant with a

woman in custody.

Section- 376(C) punishes sexual intercourse by superintendent of jail,

remand house, etc. whereas,

Section- 376(D) punishes sexual intercourse by any member of the

management or staff of a hospital with any woman in that hospital.

These new sections have been introduced with a view to stop sexual abuse
of women in custody, care and control by various persons- which though
not amounting to rape were nevertheless considered highly reprehensible.

PUNISHMENT OF RAPE:

Section 376 itself is a substantive one as it describes as to how many

years of imprisonment will be suffered by a person who commits a rape. In
view of section 376(2) punishment appended therein shall be inflicted upon a
convict with imprisonment of either description for a term which shall not be
less than seven years but which may be for life or for a term which may
extend to ten years and shall also be liable to fine unless the women raped is
his own wife and is not under twelve years of age, in which cases, he shall be
punished with imprisonment of either description for a term which may extend
to two years or with fine or with both. The court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of imprisonment
for a term of less than seven years. When the offence is committed against
those listed under section 376(2) (a) to (g) i.e., Whoever –
a) being a police officer commits rape-

i) within the limits of the police station to which he is appointed; or

ii) in the premises of any station house whether or not situated in the police
station to which he is appointed; or

iii)on a woman in his custody or in the custody of a police officer

subordinate to him; or

b) being, a public servant, takes advantage of his official position and

commits rape on a woman in his custody as such public servant or in the
custody of a public servant subordinate to him; or

c) being on the management or on the staff of a jail, remand home or other

place of custody established by or under any law for the time being in force
or of a woman's or children's institution takes advantage of his
official position and commits rape on any inmate of such jail, remand
home, place or institution; or

d) being, on the management or on the staff of a hospital, takes advantage of

his official position and commits rape on a woman in that hospital; or

e) commits rape on a woman knowing her to be pregnant; or

f) commits rape on a woman when she is under twelve years of age; or

g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for life and shall also be liable to fine:
 Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.

Explanation 1 - Where a woman is raped by one or more in a group of persons

acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2 –―Women‘sor children‘sinstitution‖means an institution,

whether called an orphanage or a home for neglected woman or children or a
widows' home or by any other name, which is established and maintained for
the reception and care of woman or children.

Explanation 3 –―Hospital‖means the precincts of the hospital and includes

the precincts of any institution for the reception and treatment of persons
during convalescence or of persons requiring, medical attention or
rehabilitation.

The main features of the Criminal Law (Amendment) Act, 1983 , are as
follows:

1. The Act, for the first time recognised the existence of aggravated forms of
rape, viz. rape of minor, gang rape, rape of a pregnant woman, custodial
rape committed by police Officer, public servant, a person on the
management or staff of jail, remand home, women‘sor children‘s home,
hospital etc. It also provided enhanced punishment under section-376 (2)
for cases of aggravated rape.

2. The Act also distinguished the rape of a judicially separated wife under
section-376-A and provided for a punishment, which may exceed to 2
years alongwith imposition of fine.

3. Prescription of mandatory minimum punishment can be regarded as the

most important achievement, by 1983 Amendment Act. It enhanced
the punishment by providing the mandatory minimum imprisonment of
either
 description for 7 years under section-376 (1) in general rape cases
along with imposition of fine. section- 376 (2) took care of aggravated
rape cases and provided a mandatory minimum of 10 years rigorous
imprisonment along with the imposition of fine.

4. A new clause ‗fifthly‘was added to section-375, which made the consent of

a woman of unsound mind or the consent, which is given under intoxication
or administration of some stupefying or unwholesome substance, irrelevant
against a rape charge.

5. Section-327, Cr. P.C. was amended to include sub-sections (2) and (3).
Clause (2) provided that in case of inquiry into and trial under Sections
375, 376, 376-A, 376-B, 376-C and 376-D, shall be conducted in camera.
clause (3) prohibited the printing and publication of any matter in relation
to the proceedings covered under c1(2), without the previous permission of
the Court.

6. A new section 228-A was inserted in the Indian Penal Code, which made
the disclosure of identity of rape victim penal except under permission
granted for publication by the victim. The Officer in charge of Police
Station or the Police Officer investigating such case can also give
permission by a written order to such publication.

7. In the Act, all recommendations of 84th Law Commission Report

regarding the provisions relating to evidence, were not accepted, but for the
provision relation to the burden of proof, which was accepted partly.
To this effect, a new section 114-A was inserted in the Indian Evidence
Act, which shifted the burden of proof on the accused in aggravated rape
cases covered under section-376, IPC.

8. Few changes were made in the First Schedule to the Criminal

Procedure Code, which made the offence of rape as cognizable and
non-bailable. Marital rape remained non-cognizable and bailable. The
offence under section-228-A was also made cognizable and bailable. The
offence under

70
 section-376, B, C and D are cognizable and bailable, but no arrest can
be made without a warrant or without an order of a Magistrate.

9. The age of consent is 16 years in general rape case, 15 years in marital

rape case and in the case where the victim is below 12 years, section-
114-A of Indian Evidence Act is applicable.

10. The position of wife remained same in the amendment of 1983 as it was
in 1891 except for the three years increase in the age of consent in
marital rape cases unrecognised by the Indian Penal Code.

Flavia Agnes observed in her article, that the 1983 Act was an
inadequate answer to the campaign for change in rape laws and what started
with a bang ended in a whisper. But at the same time, the Act was welcomed
as a progressive step and it symbolised the beginning towards future changes.

THE SUGGESTIONS PROPOSED BY THE LAW COMMISSION OF

INDIA

Despite many progressive changes introduced by the 1983 Act, there

remained many lacunae in the existing law. To fill up the gaps, the National
Commission for Women (NCW) made certain suggestions, which were
considered by the Law Commission in its 156th Report on Indian Penal Code.

The main recommendations of the 156th Law Commission Report are as

follows—

1. The Commission was of the view that the offence of rape should be
retained in the IPC subject to a few modifications.

2. The Commission recommended that clause ‗thirdly‘to section-375, IPC, be

modified to include words- ‗or of any other injury‘.These words expand
the scope of the clause to provide for situations of rape by persons in
position of trust, authority, guardianship or of economic or social
dominance. The

71
 Commission was of the view that such change will cover the cases of
incestuous abuse where the victim is totally dependent on the offender.

3. The Commission recommended clause ‗sixthly‘to section-375 existing 16

years. that the age limit prescribed in the IPC, be raised to 18 years from the

4. The Commission did not endorse the view of NCW that the age limit for
wife in the exception to section-375 IPC, should be raised.

In a move to rectify those lacunae, a NGO called ―Sakshi‖,approached the

Supreme Court of India for directions concerning the definition of the
expression ―sexual intercourse‖as contained in S-375 IPC. The Supreme Court
directed the Law Commission to examine the issues involved. In response to
this order of the hon‘ble Court,the Law Commission brought forth its 172nd
Report on Review of rape laws in 2000.

The main recommendations of the 172nd Law Commission Report are as

follows —

The Substantive Law

1. The Commission strongly recommended making the provision of rape

gender neutral because not only women and girls, but young boys are
also subjected to forced sexual assaults, which causes no less
psychological trauma to a boy than a girl.
2. The Commission felt that it was necessary to include under the definition of
rape not just penile penetration but penetration of any other part of the
body (like finger or toe) or by any other object. The modified explanation
makes it clear that penetration to an extent is sufficient to
constitute rape.
3. The Commission has retained the marital exception to rape though
―Sakshi‖wanted its deletion. The Commission found it to be excessive
interference with the marital relationship but raised the age of wife from
fifteen to sixteen years.

4. The Commission has proposed the addition of a new proviso(while

keeping the existing provisions proviso II) to section-376 IPC providing
that when the sexual assault is committed by the father, brother,
grandfather or any other person in position of trust or authority towards
that person, the punishment should be severe.

5. For aggravated minor rapes, the Commission raised the age of the victim
from 12 years to 16 years.

6. The Commission has retained both ‗adequate and special reasons clause‘to
section-376 IPC.

7. Retaining section-376 IPC, rape by husband during judicial separation, the

Commission enhanced the minimum punishment as not less than 2 years
but which may extend to 7 years.

8. Retaining sections-376-B, 376-C, 376-D, the Commission recommended

that an explanation should be added which covers all types of sexual
intercourse, as described above for section-375.

9. The Commission recommended the insertion of a new section 376 E

which gives the definition of ‗unlawful sexual contact ‘as including many
other acts of sexual abuse e.g., touching directly or indirectly, with a part
of body or an object any part of the body of another
person.
10. The commission recommended the deletion of section-377 IPC as in
the light of the proposed modifications, it will not be required.

11. The Commission has reiterated the suggestion made in the 84 th

Law Commission Report that a new section 166-A should be inserted
in the Code. The proposed section punishes a public servant who
knowingly disobeys the law prohibiting him from requiring the
attendance at any place of any person for the purpose of investigation
into any offence or during the course of conduct of investigation, he
knowingly disobeys directions of law and such an act results in prejudice
to another person.

The Code of Criminal Procedure, 1973

1. The Commission recommended that sub-sections (3) and (4) be inserted in

section-160, Cr PC to the effect that the statement of the victim shall be
recorded by a female police officer, in case a female police officer is not
available, by a female Government servant available in the vicinity and in
case a female Government servant is not available, by a female
authorised by an organisation interested in the welfare of women or
children. Where either of these alternatives are not available, the officer
in charge of the Police Station shall record the reasons in writing and
record the statement of the victim in presence of her relative.

2. Substitution of the proviso to sub-section (1) of s-160, Cr PC was also

recommended for raising the age limit from 15 years to 16 years.

3. The proviso to section-160, Cr PC should provide for recording of the

statement of the victim, in presence of one of her relatives of her choice,
who shall not interfere with the recording of the statement.

4. The Commission recommended the insertion of a new section 164-A, Cr PC

for medical examination of the victim with her consent, by a Medical
 Practitioner, during investigation, so that the valuable medical evidence is
not destroyed due to the delay etc.

5. The Commission also recommended the insertion of a new section 53-A,

Cr PC, to provide for the medical examination of the accused without
delay.

6. The Commission recommended strongly that the proviso to section-273, Cr

PC be modified, so that the minor victim is not confronted by the accused
while at the same time ensuring the right of the accused to cross-examine.

Indian Evidence Act, 1872

1. The Law Commission recommended the insertion of section-53-A, which

provides that where consent of the victim is in issue, her past sexual
experience with any person will not be relevant.

2. The Commission was of the view that section-146 (4) should be inserted
prohibiting the questions regarding general immoral character of the victim.

The Code of Criminal Procedure (Amendment) Act, 2005

Due to the liberal interpretation of section 53 CrPC, it became a

mandatory practice for a rape victim to be examined by a woman doctor only
(wherever woman doctors were available). This was meant to make the victim
more comfortable in the hands of a woman doctor. But the small number of
woman doctors (especially in rural hospitals), and their workload with
maternity services, often resulted in delays in the medical examination of a
victim of rape. Even when a doctor eventually became available, his/her busy
schedule often meant that only a cursory examination was performed and the
collection of evidence was inadequate or improper. As there was no explicit
law dealing with these issues, there was much confusion regarding who (male
or female doctor) should examine victims of rape and the extent of such
examinations (documentation of injuries and evidence / collection of
evidence).

The Criminal Procedure Code (Amendment) Act of 2005 introduced

specific sections for medical examination of victims of rape ,medical
examination of those accused of rape and investigation by judicial magistrates
of custodial rape and deaths.

Section 164(A) CrPC explains the legal requirements for medical

examination of a victim of rape. One of the main elements of this is that the
consent of the victim is mandatory and should be part of the report.Rape:
Only with the consent of the victim (and in the case of a minor by the parent
or guardian) may the examination be conducted by any registered medical
practitioner (only allopathic doctors registered under the Medical Council of
India (MCI)) employed in a hospital run by the government or a local
authority, and, in the absence of such a practitioner, by any other registered
medical practitioner. Thus this explicit provision mandates that any
registered medical practitioner with the consent of the victim may do the
examination, solving the difficulties caused by the requirement that only
government doctors should do this examination.

It also provides that when no woman doctor is available, there is no bar

against a male doctor carrying out the examination, if the victim consents.
Though getting the examination done by a woman doctor is ideal, the law
does not mandate it, keeping in mind that a medical examination should
not be postponed because of an extreme situation such as the want of a lady
doctor. The same section mandates that a medical examination must be
carried out within 24 hours of the police receiving information, thus
recognising this as a medicolegal emergency and putting a timeframe for the
investigating officer. The medical examination should be carried out
without any delay and a
‗reasoned‘report be prepared, recording the consent of the victim, her name
and address, the person by whom she was brought, her age, a description
of the materials collected from the victim for DNA profiling, marks of
injury if any, her general mental condition other material particulars in
reasonable
detail, and the exact time of commencement and completion of the
examination. The law mandates that the report should state precisely the
reasons for each conclusion made. Also, it should be forwarded without delay
to the investigating officer who, in turn, shall forward it to the magistrate
concerned.

Section 164A CrPC explicitly states that nothing in this section shall be
construed as rendering lawful any examination without the consent of the
woman or any person competent to give such consent on her behalf. This
makes it clear that consent is essential and nobody can force a victim to
undergo a medical examination without her consent, not even the Court

Section 53(A) CrPC sets down the requirements of medical examination

of a person accused of rape. Prior to this amendment there was no explicit law
defining the details of medical examination. There were no guidelines on
whether age estimation had to be done, whether a potency examination was
sufficient, whether evidence of injuries, stains, trace evidence or DNA
evidence was required to be collected, etc. So there was confusion on whether
to take samples of blood, hair, stains, nail clippings, etc. The explanation to
this section now clearly states what must be included in this medical
examination. A detailed medical examination is to be carried out by a
registered medical practitioner (only allopathic doctors registered under the
MCI) employed in a hospital run by government or local authority - and in
the absence of such a practitioner within the radius of 16 km from the place
where the offence has been committed, by any registered medical practitioner
acting on the request of a police officer not below the rank of a sub inspector.
By this it is clear that the law recognises the need for an immediate
medical examination of the person accused of rape.

The medical examination should be carried out without any delay and a
‗reasoned‘report be prepared recording the name and address of
the
accused, the person by whom he was brought, the age of the accused, marks of
injury if any, a description of materials collected from the accused for DNA
profiling, other material particulars in reasonable detail, and the exact time
of commencement and completion of examination. The law mandates that
the report should state the reasons for each conclusion arrived and this
report should be forwarded without any delay to the investigating officer who
in turn shall forward it to the magistrate concerned.

Amendments are also made to section 176 CrPC regarding an inquiry by

a magistrate into the cause of death, by adding section (1A) by which if

(a) any person dies or disappears, or (b) rape is alleged to have been
committed on any woman, while such person or woman is in the custody of
police or in any other custody authorized by the Magistrate or the Court under
this Code, in addition to the inquiry or investigation held by the police, an
inquiry shall be held by the Judicial Magistrate or the Metropolitan
Magistrate, as the case may be, within whose local jurisdiction the offence has
been committed. This amendment now mandates that a judicial magistrate
must investigate all cases of custodial rape and deaths in custody.

The Code of Criminal Procedure (Amendment) Act,

2008

Many victims of rape do not want to register a police complaint due to the
cumbersome procedures that it involves, and the unsupportive atmosphere
at police stations. Further, they must narrate their ordeal to male police
officers. Even if a woman musters up the courage to initiate criminal
proceedings, there are inordinate delays in the trial of the case, with needless
adjournments. She is always psychologically harassed in open courts,
undergoes long trials and is forced to repeatedly describe her traumatic
experiences in front of people who view her testimony with suspicion. It has
also been found that in most cases the accused gets acquitted for lack of
evidence. The courts have also failed to provide immediate and long term
relief to the victim, let alone punishment to the accused. All these issues
were looked at when the CrPC was amended in 2008. These amendments
came into effect in 2009.
1. A provision has been added to section 157 CrPC dealing with the
procedure of investigation in relation to the offence of rape. The
recording of the statement of the victim shall be conducted at the
residence of the victim or in the place of her choice and, as far as
practicable, by a woman police officer in the presence of her parents or
guardians or near relatives or social worker of the locality.

2. The amendment to section 173 CrPC now mandates that investigation in

relation to rape of a child must be completed within three months of the
date on which the information was recorded by the officer in charge of the
police station. Also, when the report is forwarded to a magistrate it should
contain the report of the medical examination of the woman where an
investigation relates to an offence under sections 376, 376A, 376B, 376C,
and 376D IPC.

3. The amendment to section 309 CrPC has the additional proviso that
when the inquiry or trial relates to an offence under sections 376 to 376D
IPC, the inquiry or trial shall, as far as possible, be completed within a
period of two months from the date of commencement of the examination of
witnesses.

Though the CrPC amendment of 1983 to section 327CrPC itself mandated

in camera inquiry and trial for rape of an offence under section 376, 376A,
376B, 376C or 376D IPC, victims of rape were still not comfortable in court
proceedings. The 2008 amendment to section 327CrPC allows an in camera
trial be conducted, as far as is practicable, by a woman judge or magistrate. It
also partially lifts the ban on printing or publishing trial proceedings in
relation to an offence of rape, subject to maintaining confidentiality of the
names and addresses of the parties.

The amendment of the CrPC in 2008 has brought in progressive

legislation by inserting a new section 357(A) CrPC, the victim compensation
scheme. All state governments in consultation with the central government
are to prepare a scheme for victim compensation. On recommendation by
the
court for compensation, the district legal service authority or state legal
service authority must decide on the quantum of compensation.

The Draft Criminal Law (Amendment) Bill, 2010, which seeks to amend
the law in the Indian Penal Code (IPC) pertaining to rape and sexual assault,
has found support among women's groups that have been, for more than three
decades, campaigning for a comprehensive piece of legislation dealing with
crimes against women and children.

The salient features of the Draft Criminal Law Amendment Bill 2010 are as
follows:

1.It widens the gamut of sexual assault committed by people in positions

of authority, private as well as public, and prescribes enhanced
punishment, which may include imprisonment for life as well. This
covers institutions such as hospitals, remand homes or any place of
custody.

2.The bill also provides for enhanced punishment for a term not less than 10
years for gang rape; sexual assault on pregnant or mentally or
physically disabled women; and maiming, disfiguring or endangering
the life of a woman while committing sexual assault.

3. Some positive aspects relating to procedures include recording of

offences, as far as possible, by a woman police officer; substitution of the
term ―sexual intercourse‖with ―sexual assault ‖in the Cr.PC; and
recording of evidence of a person under 18 years of age, and who has been
assaulted, in such a manner that the accused has the right to cross-
examine but will not confront the victim; and substitution of
―rape‖with ―sexual assault‖.However, it does not specify the method of
cross-examination in order to ensure that the victim is not harassed and
victimised further.

4. Another important amendment suggested in the Indian Evidence Act is on

the issue of consent. The bill provides that in a prosecution for sexual
assault under Section 376 of the IPC, where sexual intercourse by the
80
 accused is proved and the question is whether it was without the consent of
the person alleged to have been sexually assaulted, and if the person states
during examination in the court that consent was absent, the court shall
presume that there was no consent. Additionally, where consent is
under question, cross-examining the victim on character issues or previous
sexual experience for proving consent or the quality of consent will not be
allowed.

Seven women‘s organisations, including AIDWA, the All India

Women‘sConference, the Young Women ‘s Christian Association, the Joint
Women‘sProgramme, Guild of Service, the Muslim Women's Forum and the
All India Dalit Mahila Adhikaar Manch have welcome the draft, including
the conceptual shift in redefining rape, but expressed strong reservations
about some other aspects. They feel the draft Bill falls short of reflecting the
realities faced by victims of sexual assault and, therefore, is not
comprehensive. There are some areas, such as recognising the offence of
marital rape and prescribing punishment for the same, that have not been
covered. As such, sexual intercourse of any nature by a man with his wife,
the wife not being under 18 years of age, does not become sexual assault.
The bill also prescribes lesser punishment for a man who commits sexual
assault on his wife who is living separately.

The draft Bill of 2010 could not culminate into the final bill as it was felt
by the women activists and NCW etc. that it required certain modifications.
The modified version is contained in the draft Criminal Law Amendment
Bill 2012.

The salient features of Criminal Law Amendment Bill 2012 are as

follows :

1. The bill proposes to replace the term 'rape' with 'sexual assault' in the
Criminal Law (Amendment) Bill, 2012 in order to widen the scope of this
heinous crime. If this amendment is passed by Parliament, then rape

81
 will become gender neutral as it has been treated as crime against
women and children.

2. The bill proposes that sexual intercourse by a man with his wife under 16
years of age is not sexual assault.

3.The age of consent has been raised from 16 years to 18 years in case
of sexual assault and the punishment will be minimum seven to ten years.

In spite of the efforts of the legislature to provide protection to rape

victims, the existing rape law has been hardly able to make even a dent in the
societal structure responsible for such violence. The ever escalating graph of
the rape crime demands serious probe in the area and then the rape law should
be designed accordingly.
 BIBLIOGRAPHY
STATUTES
 The Code of Criminal Procedure, 1973.
Indian
Statutes  The Constitution of India, 1950.

 The Indian Evidence Act, 1872.

 The Indian Penal Code, 1860.

Fo

190
t Opportunity Act, 1984 (Western Australia).

e  The Human Rights and Equal Opportunity

Commission Act, 1986.

s
 The Sex Discrimination Act, 1984.

Pakistan

A
 Pakistan Penal Code, 1960.

u
 The Offence of Zina
(Enforcement of Hudood)
s
Ordinance, 1979.

 The
Crimes
Act,
1900
(New
South
Wales).

 The
Equal
190
Sri Lanka

 Sri Lanka Penal Code, 1883.

United Kingdom

The Criminal Justice Act, 2003.

The Criminal Justice and Public Order Act, 1994.

The Employment Equality (Sexual Orientation) Regulations, 2003.

The Sexual Offences Act, 1956.

The Sexual Offences Act, 2003.

The Sexual Offences (Amendment) Act, 1976.

United States of America

 Federal Criminal Code, 1986.

 Federal Rules of Evidence, 2003.

 Illinois's Criminal Sexual Conduct Statute, 1994.

 Title VII of the Civil Rights Act, 1964.

 Violence Against Women Act, 1994.

191
INTERNATIONAL INSTRUMENTS

 UN Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, 1984.

 UN Convention on the Elimination of All Forms of Discrimination

Against Women, 1979.

 UN Declaration on the Elimination of Violence Against Women, 1993.

 UN Declaration on the Protection of Women and Children in

Emergency and Armed Conflict, 1974.

 UN Convention on the Rights of the Child, 1989.

 UN Declaration on the Right to Development, 1986.

 International Covenant on Civil and Political Rights, 1966.

 International Covenant on Economic, Social and Cultural Rights, 1966.

 The Beijing Declaration, 1995.

 The Vienna Declaration, 1993.

 Universal Declaration of Human Rights, 1948.

REPORTS

 Amnesty International Calls for Restriction of the Role of Male Guards

in Female Facilities, USA (New York State), August 2000. AI Index :
AMR 51/124/00 at http://www.amnesty.org.

 Amnesty International-India-Torture, Rape and Death in Custody,

Amnesty International Publications, New York (1992).

 Breaking the Earthern Jars –Lessons from South Asia to End Violence
Against Women and Girls, UNICEF Publication, Regional Office for

South Asia, Nepal, (2000).

 Compounding Injustice –The Government's Failure to Redress Massacres

in Gujarat,(July, 2003), Human Rights Watch Report at
http://www.hrw.org/reports/2003/india0703/Gujarat-03.htm.

 Crime in India, National Crime Records Bureau, Govt. of India, Ministry

of Home Affairs, (2000).

 Crime or Custom? Violence Against Women in Pakistan, Human Rights

Watch Report (1999), at http://www.hrw.org/reports/1999/Pakistan.

 Domestic and Sexual Violence Data Collection –A Report Under the

Violence Against Women Act, A Joint Publication of the National Institute of
Justice and the Bureau of Justice Statistics, (July. 1996).
 Domestic Violence and Law –Report of Colloquium on Justice for Women –
Empowerment through Law, organized in Delhi in May, 2000. Lawyers
Collective Women's Rights Initiative, Butterworths, New Delhi, (2000).

 Draft Plant of Action for the Advancement of Women in Asia and the
Pacific, UN Economic and Social Council Second Asian and Pacific
Ministerial Conference on Women in Development, (1994). UN Economic
and Social Commission for Asia and Pacific Publication.

 Final Report of UN Special Rapporteur Ms. Gay McDougall, on

Contemporary Forms of Slavery –Systematic Rape, Sexual Slavery and
Slavery like Practice During Armed Conflicts„(22 June, 1998)., (1980).

 Law Commission of India –154th Report on The Code of Criminal

Procedure, 1973, Ministry"Friends" Raping Friends –Could It Happen
to You? Project Report by Jean O'Gorman Hyghes and Bernice R. Sandler,
on the Status and Education of Women, Association of American
Colleges, (1987).

 Human Development Report 2002 –Deepening Democracy In a

Fragmented World, Published for UNDP. Delhi by Oxford University
Press, New Delhi. (2002).

 Law and Sexuality: Speech on the Amendments to the Penal Code,

Parliamentary Speeches (Sri Lanka), (19th September,1995), at
http://www.icescolombo.orelNeelan/ ps190995.htm.

 Law Commission of India –42nd Report, Govt. of India, Ministry of

Law, (1971).
 Law Commission of India –84th Report, Govt. of India. Ministry of
Law, Justice and Company Affairs of Law and Justice, Govt. of India,
(1996).

 Law Commission of India –156th Report on the Indian Penal Code,

1860, Ministry of Law and Justice. Govt. of India, (1996).

 Law Commission of India –172nd Report on Review of Rape Laws,

Ministry of Law and Justice, Govt. of India (2000).

 Lives Together, Worlds Apart –Men and Women in a Time of Change –

The State of World Population, UNFPA, United Nations Population Fund,
(2000).

 Lok Sabha Debates, 7th Series. Vol.42, (1983). Lok Sabha Secretariat.
New Delhi.

 Memorandum on Reform of Laws Relating to Sexual Offences, Prepared

by Shomana Khanna and Ratna Kapur –Centre for Feminist Legal
Research, (1996).

 Nairobi Forward Looking Strategies for the Advancement of Women –

Report of the World Conference to Review and Appraise the
Achievements of the United Nations Decade for Women : Equality,
Development and Peace, Nairobi, (15-26 July, 1985).

 NGO Shadow Report to CEDAW South Africa –Focus : Violence

Against Women, Masimanyane CEDAW Working Group, (June, 1998).

 Parliamentary Speeches – Law and Sexuality : Speech on the

Amendment to the Penal Code, (September, 1995) at
http://www.Icescolombo.org/Neelan/ps190995. htm.
 Platform for Action –Report of the Fourth World Conference on
Women, Beijing, China, (4-15 September, 1995).

 Preliminary Report submitted by UN Special Rapporteur on Violence

Against Women, Its Causes and Consequences, Ms. Radhika
Coomaraswamy, (22 November, 1994).

 Programme of Action –Report of the World Conference on Human

Rights, Vienna, (14-25 June, 1993).

 Rape –A Legal Study, National Commission For Women, (2000).

 Report of the Age of Consent Committee, Govt. of India, Central

Publication Branch, Calcutta, (1928-29).

 Report of the Seminar on Child Rape, National Commission for Women,

(Oct. 7_8, 1992).

 Report of the UN Special Rapporteur on Violence Against Women,

Its Causes and Consequences, Ms. ILdhika Coomaraswamy, on Violence in
the Community, (12 February, 1997).

 Report of the UN Special Rapporteur on Violence Against Women, Its

Causes and Consequences, Ms. Radhika Coomaraswamy, on Trafficking

in Women, Women's Migration and Violence Against Women, (29
February, 2000).

 Report of the UN Special Rapporteur on Violence Against Women,

Its Causes and Consequences, Ms. Radhika Coomaraswamy,
Addendum –
 Mission to Bangladesh, Nepal and Indian on the Issue of Trafficking of
Women and Girls, (6th February, 2001).

 Report of the UN Special Rapporteur on Violence Against Women, Its

Causes and Consequences, Ms. Radhika Coomaraswamy, on Integration
of the Human Rights of Women and the Gender Perspective –Cultural
Practices in the Family that are Violent Towards women, (31 January,
2002).

 Report of the UN Economic and Social Council on Integration of the

Human Rights of Women and the Gender Perspective –Violence Against
Women, (6th January, 2003).

 The Criminal Law (Amendment) Bill 1980 — Report of the Joint

Committee, Govt. of India, Rajya Sabha Secretariat, (1982).

 The Human Right Watch Global Report on Women's Human Rights,

Human Rights Watch Women's Rights Project, (1998), Oxford
University Press, Calcutta, Chennai and Mumbai.

 The Indian Penal Code (Amendment) Bill 1972 — Report of Joint

Committee, Govt. of India, Rajya Sabha Secretariat, (1976).

 The Progress of Nations, (1997), UNICEF, New York.

 The RAHI Findings : Voices From the Silent Zone — Women's

Experiences of Incest and Childhood Abuse. Published by RAHI, New
Delhi, (1998).
 The State of World Population — The Right to Choose : Reproductive
Rights and Reproductive Health, UNFPA, United Nations Population
Fund, (1997).

 Towards Equality — The Unfinished Agenda — Status of Women in India

— 2001, by Sarla Gopalan. The National Commission for Women,
Government of India, (2002).

 UNIFEM in Beijing and Beyond — Celebrating the 4th Conference

on Women, UNIFEM Report (1996). UN Development Fund for Women.

 Violence Against Women –A Hidden Form of Human Rights Abuse,

Amnesty International News Service. AI Index : ACT 77/003/2002,
(8th March 2002) at http://www.amnesty.org.

 Violence Against Women –A Study of Delhi, Mumbai and Bangalore,

by Vinita Nagar (Aug., 1999). Centre for Policy Research, New Delhi.

 Violence Against Women – Addressing a Global Program, Ford

Foundation Women's Program Forum, (1992). Ford Foundation, New York.

 Violence Against Women, Congressional Caucus for Women's Issues,

Washington D.C., (October, 1992).

 Violence Against Women –The Response to Rape Detours on the Road to

Equal Justice, Prepared by the Majority Staff of the Senate Judiciary
Committee, (May, 1993).

 Women –2000 –Sexual Violence and Armed Conflict : United Nations

Response, Published to promote the goals of the Beijing Declaration and the
 Platform for Action by the Division for the Advancement of Women
Development of Economic and Social Affairs, United Nations, (April,
1998).

 Women and Peace –Equality, Participation and Against Women, Kit

No.5, issued by UN Office, Vienna (1990).

 Women in the Front Line –Human Rights Violations Against

Women, Amnesty International Report, (1990).

 Women, Violence and Human Rights, Women's Leadership

Institute Report, (1992).

BOOKS

 Lalita Dhar, et al ―Sexual Harassment at Work Place ; old Beginning

New Thinking‖, in Indian Socio- Legal Journal. Vol. XXX, Jabalpur
(January, 2006 )

 Adler, Zsuzsanna, Rape on Trial, Routledge and Kegal Paul, London

(1987).

 Aggarwal Nomita, Women and Law in India,Women's Studies and

Development Centre, University of Delhi. New Century Publications,
Delhi(2002)

 Agnes, Flavia, Journey to Justice –Procedure to be followed in a Rape

Case, Majlis, Bombay(1990)
 Ahmad, Ejaj, Law of Crimes, revised by Dr. Gurbux Singh, 5th
ed., Rajasthan Law House, Jodhpur, Ahmedabad(2000)

 Ahuja, Ram, Violence Against Women, Rawat Publications,

Jaipur, Delhi(1998)..

 Basu, N.D. Indian Penal Code, ed. by Sudhir Kumar Bose, 6th
ed., Published by P.S. Basu, Nalin Sarkar Street, Calcutta(1966)

 Basu Penal Code –Law of Crimes, ed. by A.N. Saha, 8th ed., Ashoka
Law House, Delhi(2001)

 Bridgeman, Jo and Susan Millns, Feminist Perspectives on Law, Sweet

and Maxwell, London(1998)

 Brownmiller, Susan, Against Our Will-Men, Women and

Rape,Bantam Books, New York(1990)

 Clark, Lorenne and Debra Lewis. Rape –The Price of Coercive

Sexuality, The Women's Press, Toronto, Canada(1977)

 Desai, Neera and Maithreyi Krishna Raj, Women and Society in

India, Ajanta Publications, Delhi(1987)

 Dewan V.K., Law Relating to Offences Against Women, 2nd ed.,

Orient Law House, New Delhi(2000)

 Dhagmwar, Vasudha, Law Power and Justice, 2nd ed., Sage

Publications, Delhi(1987)

200
 Feminism and the Power of Law, ed. by Coral Smart, Routeledge,
London and New York(1989)

 Feminist Terrains in Legal Domains –Interdisciplinary Essays on

Women and Law in India, ed. by Ratna Kapur, ( Kali For Women,
New Delhi(1996)

 Freedom From Violence –Women's Struggles From Around the World,

ed. by Margaret Schuller, (1992).

 Gender and Justice, ed. by Ngaire Naffine, Dartmouth Publishing

Company, Ashgate Publishing Ltd., England(2002)

 Ghose, S.K., Torture and Rape in Police Custody, Ashish

Publishing House, New Delhi(1993)

 Gonsalves, Lina, Women and Human Rights, . A.P.H. Publishing

Corporation, New Delhi(2001)

 Gordon, Peter and Kate Crehan, Dying of Sadness: Gender, Sexual

Violence and the HIC Epidemic, SEPED Conference Paper Series, no.-
1, UNDP/SEPES Publication.

 Gour H.S., The Penal Law of India, revised by M.C. Desai, D.D. Seth and
R.B. Sethi. 9th ed., Law Publishers, Allahabad(1972)

 Gour. K.D.. A Test Book on the Indian Penal Code, Oxford and
IBH Publishing Co. Pvt. Ltd., New Delhi(1992)

201
 Guberman, Connie and Margie Wolfe, No Safe Place –Violence
Against Women and Children, The Women's Press, Toronto.
Canada(1985)

 Human Rights –Issues and Perspectives ed. by J.L. Kaul

Regency Publications, Delhi(1995)

 Jaggor, Alison M., Feminist Politics and Human Nature,

Rowland, Sussex(1983)

 Jain, Shashi Prabha and Mamta Singh, Violence Against Women,

Radha Publications, Delhi(2001)

 Jaswal, Dr. Paramjit S. and Dr. Nishtha Jaswal, Human Rights and
the Law, Efficient Offset Printers, Delhi(1996)

 Kannabiran, Kalpana and Vasanth Kanna — biran, De — Eroticizing

Assault —Essays on Modesty, Honour and Power, Mandira Sen

for STREE, Calcutta(2002)

 Kapur, Ratna and Brend Cossman,versive Sites — Feminist

Engagements With Law in India, Sage Publications, Thousand

Oaks, California, London, New Delhi(1996)

 Manohar, V.R. and W.W. Chitaley, The Indian Penal Code, 3rd ed.,
The All India Reporter Ltd., Nagpur(1980)
 Mayne's Criminal Law of India, revised and ed. by S.Swaminadhan,
4th ed., Higginbothams Ld., Madras(1914)

 Monir, M., Law of Evidence, revised by H.S. Ursekar, 6th ed., The
University Book Agency, Allahabad(2002)

 Nelson, Reginald A., The Indian Penal Code, ed. by S.S.Sastry and
S.D.Singh, 6th ed., Law Book Company, Allahabad(1970)

 P.S.A. Pillai's Criminal Law, ed. by V. Suresh and D. Nagasaila, 9th

ed., Butterworths India, New Delhi(2000)

 Paton, George Whitecross, A Text Book of Jurisprudence, ed. by

G.W. Paton and David P. Derham, (1972). Oxford University Press,
London(1972)

 R.V. Kelkar‘s Criminal Procedure

 R.V. Kelkar's Criminal Procedure, revised by Dr. K.N.

 Raj Gopal, P.R., Social Change and Violence — The Indian

Experience, Uppal Publishing House, New Delhi(1987)

 Raju, V.B., Commentaries on the Indian Penal Code, 3rd ed.,

Eastern Book Company, Delhi(1966)

 Ranchhodas, Ratan Lal and Dhiraj Lal Keshavi Lal Thakore, The Code
of Criminal Procedure, 14th ed., Wadhwa and Company Law
Publishers, Nagpur(1992)
 Ranchhodas, Ratan Lal and Dhiraj Lal Keshavi Lal Thakore, The Law
of Crimes, revised by D.A. Dasai, M.L. Jain and N.R. Madhava
Menon, (1993). Bharat Law House Pvt. Ltd., New Delhi.

 Ratan Lal and Dhiraj Lal's Law of Crimes — A Commentary on

The Indian Penal Code, 1860, revised by Justice C.K. Thakker, 25th ed.,
Bharat Law House, New Delhi(2003)

 Researching Sexual Violence Against Women — Methodological and

Personal Prospectives, ed. by Martin D. Schwartz. Sage Publications,
Delhi(1997)

 Rhode, Deborah L., Justice and Gender, Harvard University

Press, Cambridge, Massachussets, London, England(1989)

 Russell, E.H., Rape in Marriage, Indiana University Press, Blooming

ton and Indianapolis)(1990)

 Sachs, Albie and Joan Hoff Wilson, Sexism and the Law A Study of
Male Beliefs and Judicial Bias in Britain and the United States, (Law and
Society Series), Martin Robertson and Company Limited, Oxford, Great
Britain(1978)

 Sarkar on Evidence, ed. by Sudipto Sarkar and V.R. Manohar, 14th ed.
, Wadhwa and Company Law Publishers, Nagpur(1993)

 Schwartz, Martin D. and Walter S. Keseredy, Sexual Assault on the

College Campus — The Role of Male Peer Support, Sage Publications,
California(1997)
 Sexana, Shobha, Crimes Against Women and Protective Laws, Deep
and Deep Publications, New Delhi(1995)

 Sexual Violence — The Reality Form Women, The London Rape

Crisis Centre Hanbook Series, The Women's Press, London (1984).

 Sharma, K.M., Law Relating to Rape, Sodomy, Abduction and

Kidnapping, Kamal Publishers, Delhi (1996).

 Singh, Kirti, Law, Violence and Women in India, Study Sponsored

by UNIFEM/UNICEF, (2000). UNIFEM/UNICEF Publication, New
Delhi.

 Smart. Carol, Feminism and the Power of Law, ed. by Carol

Smart, Routledge, London and New York(1989)

 Smart, Carol, Women Crime and Criminology : A Feminist

Critique,Routledge and Kegan Paul. London, Boston, Melbourne and
Henley(1984)

 The A.I.R. Manual –Unrepealed Central Acts, by V.R. Manohar and

W.W. Chitaley, 5th ed., vol-24, All India Reporter Pvt.

Ltd., Nagpur(1989)

 The A.I.R. Manual –Unrepealed Central Acts, by V.R. Manohar and

W.W. Chitaley. 5th ed., vol-38, All India Reporter Pvt.

Ltd., Nagpur(1989)
 The Criminal Justice System and Women –Offenders, Victims,
Workers, ed. and compiled by Barbara Raffel Price and Natalie J.
Sokoloff, (1982). Clark Boardman Company, Ltd., New York.

 The Dark Side of Families –Current Family Violence Research, ed.

by David Finkelhor, Richard J. Gelles, Gerald T. Hotaling and Murray
A. Straus, (1983). Sage Publications, Beverley Hills, London, New Delhi.

 The World of Gender Justice, ed. by Murlidhar C. Bhandare, (1999).

Har Anand Publications Pvt. Ltd., New Delhi.

 Tomasevski, Katarina, Women and Human Rights, Women and

World Development Series, (1993). Zed Books, London and New Jersey.

 Tong, Rosemarie, Feminist Thought –A Comprehensive Introduction,

(1989). Westview Press, Boulder and San Francisco.

 Tong, Rosemarie, Women, Sex and the Law, (1994). Rowman and
Allanheld Publishers, USA.

 Vandana, Sexual Violence Against Women: Penal Law and Human

Rights Perspective, Lexisnexis, Butterworths,Wadhwa Nagpur,(2009)

 Veeraraghvan, Vimal, Rape and Victims of Rape, (1987). Northern

Book Centre, Delhi.

 Verma, R.S. and I.B.S. Thokchom, Commentary on Rape, Kidnapping

and Abduction, (2001). Verma Publications, Delhi.
 Violence Against Women, ed. by Carolyn M. Sampselle, (1992) –
Hemispher Publishing Corporation – New York, Washington, Philadelphia,
London.

 Violence Against Women –Women Against Violence, ed. by Shirin

Kudchedkar and Sabiha Al-Issa, (1998). D.K. Fine Arts Press (P)
Ltd., Delhi.

 Ward, Colleen A., Attitudes Toward Rape –Feminist and Social

Psychological Perspectives, Series editor : Sue Wilkin Son, (1995).
Sage Publications.

 Watson, Eric R., The Principles of Indian Criminal Law, (1907),

Sweet and Maxwell Ltd., London.

 Williams, Glanville, Text Book of Criminal Law, (1978). Stevens &

Sons, London.

 Women and the Politics of Violence, ed. by Taisha Abraham, (2002).

Shakti's Books, Har-Anand Publications Pvt. Ltd., New Delhi.

 Women and Violence: Realities and Responses Worldwide, ed. by

Miranda Davies, (1994). Zed Books Ltd., London and New Jersey.

 Women's Encounters with Violence –Australian Experience, ed. by

Sandy Cook and Judith Bessant, (Sage Series on Violence Against
Women, 1997). Sage Publications, London, New Delhi.

 Women's Health: Readings on Social, Economic and Political Issues,

ed. by Nancy Worcester and Mariamme H. Whatley, (Women's
Studies
 Program, University of Wisconsin –Madison), 2nd ed. (1994).
Kendall/Hunt Publishing, Iowa.

 Women, Law and Social Change –Core Readings and Current Issues,
ed. by T. Brettel Dawson, Carleton Legal Studies Series (1990). Captus
Press, Canada.

 Women March Towards Dignity –Socio Legal Perspectives, ed. by

Kusum, (1993), Regency Publications.

 Women, Violence and Male Power, ed. by Marianne Hesters, Liz

Kelly and Jill Radford, (1996). Open University Press, Buckingham,
Philadelphia.
 CHAPTER -5

Rape: Judicial Approach In India

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.

Chankya said, ―Law and morality sustain the world.‖But morality

stems from ethnical values. The societal perception of judges as being
detached and impartial referees was the greatest strength of the judiciary.
The real source of the strength of the judiciary lies in public confidence
in the institution. Today it was because of the public perception that the
higher judiciary in the country occupies a position of pre-eminence among
the three organs of the state.

The Latin maxim, boni judicwas est ampliwere jurwasdictionem - it

was the duty of a good judge to extend the jurisdiction - based as it was on the
principle that law must keep pace with society to retain its relevance because
if the society moves but the law remains static, it should be bad for both. The
Indian judiciary has, during the last few decades, acted on the maxim
extensively in cases where protection of fundamental rights or basic human
rights were concerned.This line of precedent was both dramatic and
educative. It was the tardiness of legislatures and the indifference of the
executive to address itself to the complaints of the citizens about violations
of their human rights and unfair treatment, which provides the necessity
for judicial intervention.

125
 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 Supreme Court and the High Courts have played a significant role
in protecting the fundamental rights of the people. The judges were after all
part of the society and cannot be totally immune from the dominant trends of
social thoughts prevailing therein. Cardozo rightly observed, ―The tides
and currents which engulf the rest of men do not turn aside pass the judges
by.‖An analysis of the judicial decisions therefore was undertaken to show
to what extent the judges shared the gender predilections prevailing in the
society and how in spite of such predilections they rendered decisions which
advanced the progress of the law towards gender justice. Thus the, Indian
judiciary has paid a yeoman‘s service in protecting and preserving the rights
of the females as well as sensitising the society concerning the rights of the
half of the human population.

Time and again the Supreme Court of India has extended the ambit of
Article 21 of the Constitution of India and held that mere existence was not
the right to live- it was the right to live with dignity. Thus, whenever the
crimes were committed against women the same should be viewed in the
context of violation of her right under Article 21 of the Constitution of India
and not merely as a crime against the society.

In order to show the change and improvement in the Judicial

approach with respect to rape law, an attempt is made herein to discuss
some of those cases, which showed the apathetic and indifferent judicial
attitude towards rape victims.

In Mahla Ram v. The crown, the victim was raped in a moving train by
the accused that dragged her down the bench and tucking up her loincloth
forcibly raped her. When the train reached the next station, one guard
came into that compartment and found the woman lying on the bench
and the accused picking up his loincloth that was untied. There was an
independent witness also who heard the victim screaming.

The court held that the evidence on the record was the most
inconclusive to hold the accused guilty of rape and the victim to be a non-
consenting party and it was improbable to hold that the woman was not a
consenting party. There were absolutely no evidence on the record of any
struggle having taken place nor were marks of injury sound on the person
either of the victim or of the accused. It was further held that there was no
independent evidence in support of the statement of the victim and it would be
most dangerous to base a conviction on her uncorroborated testimony alone.

The court emphasised on the necessity of corroborated testimony of

the victim and also the evidence of resistance to hold the accused guilty of
rape and to determine her consent or want of consent. In the present case,
as there was lack of all these evidences the court found the victim to be a
consenting party and the accused not guilty of offence of rape.

The Court displayed a total disregard to the psychology of a woman

and expected victims to be fighting for their pride. The Court failed to
recognise the generally prevailing uneducated, shy and fearful attitude of
woman. The expectation of stiff resistance in each case of rape is highly
inhuman and injudicious. It is a well-known fact that raped is such an
offence that is not committed in a public place in front of a number of
people so that eyewitnesses shall be there to corroborate the victim's
version. It is highly disturbing fact that generally in cases of passive
submission Courts read consent in total disregard to the prevailing social facts
and woman psychology.

In Ibrahim v. Emperor ,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, 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 , 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, 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 , 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

130
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.

This 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 , 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.

131
 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

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, 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, 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 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 ,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 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.,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 juaicial 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, you have ravish‘d justice; 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, 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, 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 himself in
the presence of both the girls, and exposed himself. 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 sthe 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.

The Court framed the following question:

Why should the evidence of girl or the woman who complained of rape
or sexual molestation be viewed with the aid of spectacles fitted with lenses
tinged with doubt, disbelief or suspicion? To do so was to justify the charge of
male chauvinism in a male dominated society.

The consequences of such charges would have disastrous effect on the

future of unmarried girl and might ruin the marital life of a married
woman. Commenting on the Indian circumstances, the Apex Court
enumerated few of the following main reasons in this case which ruled
out the possibility of fabrication of rape charges.

(i) A girl or a woman in the tradition bound non permissive society of India
would be extremely reluctant even to admit that any incident
which was likely to reflect on her chastity had ever occurred.

(ii) She would be conscious of the danger of being ostracised by the society
or being looked down by the society including her own family
members, relatives, friends and neighbours.

(iii) She would have to brave the whole world.

(iv) She would face the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial home and
happiness being shattered.

(v) If she were unmarried, she would apprehend that it would be difficult to
secure an alliance with a suitable match from a respectable or an
acceptable family.

(vi) It would almost inevitably and almost invariably result in mental torture
and suffering to herself.

'(vii) The fear of being taunted by others would always haunt her.
(viii) She would feel extremely embarrassed in relating the incident to others
being overpowered by a feeling of shame on account of the upbringing
in a tradition bound society where by and large sex was taboo.

In view of these and similar factors the victims and their relatives were not
too keen to bring the culprit to book. And when in the face of these factors the
crime was brought to light there was a built-in assurance that the charge
was genuine rather than fabricated.

The court further held that on principle the evidence of a victim of

sexual assault stood on par with evidence of an injured witness. Just as a
witness who had sustained an injury which was not shown or believed to be
self inflicted was the best witness in the sense that he was least likely to
exculpate the real offender, the evidence of a victim of a sex-offence
was entitled to a greater weight, absence of corroboration notwithstanding.
And while corroboration in the forms of eyewitness account of an
independent witness might often be forthcoming in physical assault cases,
such evidence could not be expected in sex offences, having regard to the
very nature of the offence.

It was held that corroboration was not the sine qua non for a conviction
in a rape case. In the Indian setting, refusal to act on the testimony of a victim
of sexual assault in the absence of corroboration as a rule, was adding insult to
injury. If the evidence of the victim did not suffer from any basic infirmity,
and the ‗probabilities-factor‘did not render it unworthy of credence, as a
general rule, there was no reason to insist on corroboration except from
the medical evidence, having regard to the circumstances of the case,
medical evidence could expect to be forthcoming subjected to be following
qualification: Corroboration might be insisted upon where a woman having
attained the majority was found in a compromising position and there was a
likelihood of her having leveled such an accusation on account of instinct of
self-preservation or when probability-factor was found to be out of tune.
 It could be observed that the need of the hour was to mould and evolve
the law so as to make it more sensitive and responsive to the demands of the
time in order to resolve the basic problem: ―whether, when, and to what
extent corroboration to the testimony of a victim of rape was essential to
establish the charge. ‖And the problem has a special significance for the
women in India, for, while they have often been idolized, adored, and even
worshiped, for ages they have also been exploited and denied even wanted
justice - 60 crores anxious eyes of Indian women were, therefore, focused on
this problem.

This is a landmark judgment of the Supreme Court that gave a new

insight to deal rape cases from the victim's perspective. It shows genuine
concern for the plight of the victim and realised the social circumstances. The
testimonial evidence of the victim of rape at least secured a reasonable place in
the scheme of criminal trial and is a welcome departure from the earlier
judicially created barriers between the victim of rape and justice.

In Balwant Singh and others v. State of Punjab and Saudagar Singh

v. State of Punjab,the victim, aged 19 or 20 years was a student of BA and
she was going to college to collect her certificates. Accused, who were
known to her, forcibly took her in a car to the canal bank and there in a
groove of eucalyptus trees raped her one by one.

The court held that where the evidence of victim that she was raped by
accused persons one after the other was supported by the medical report and
by the evidence given by her father, no importance could be attached to the
fact that the police had disbelieved the genuineness of the prosecution story
and had treated the case as cancelled more so when the police had withheld
from the court the report of examination by the chemical examiner of
the vaginal swabs of the victim as to the presence of semen.

It was further held that it could not be said that whenever the
resistance was offered there must be some injury on the body of the victim.
The accused were four in number and the victim was a girl of 19 or 20
years of age. She was not expected to offer such resistance as would cause
much injury to her
140
body. As per the medical report, she had red abrasions on her right breast.
The absence of injury on the back of the victim or any part of her body
did not falsify the case of rape by the accused on her.

In this case, the Supreme Court rightly accepted the testimony of

victim against the opinion of police, the investigating agency, keeping in
view of the presence of other evidences that supported the prosecution story.

In Pramod Mahto v. State of Bihar, the accused persons entered the

house through the roof after dismantling a portion of it and thereafter they
committed rape on the victims while one accused stood guard over them with
a gun in his hands in order to overawe them and made them submit to the rape
committed on them without protest. The court held the accused were guilty of
the offence.

This case would be remembered for having laid down with regard to
Explanation I of section 375 that in a case of gang rape it was not necessary
that the prosecution should adduce clinching proof of a complete act of rape
by each one of the accused on the victim where there were more than one in
order to find the accused guilty. It also held that even if communal
feelings had run high, it was inconceivable that an unmarried girl and two
married women would go to the extent of staking their reputation and future in
order to falsely set up a case of rape on them for the sake of communal
interests.

The faith reposed in the testimony of the victims of gang rape in

communally tense situation is a welcome judgment and true recognition of
womanhood.

In Vijayan Pillai v. State of Kerala,it was held that consent was an

act of reason accompanied by deliberation. Consent meant active will in mind
of a person to permit the doing of the act of and knowledge of what was
to be done, or of nature of the act that was being done. Consent supposed a
physical power to act, a moral power of acting and a serious and determined
free use of these powers.

141
The decision of Kerala High Court in this case is praiseworthy as it gave a
correct definition of consent.

In State of Haryana v. Prem Chand and others, the accused along with
one other person contended that Ravi Shankar committed rape on the victim in
the field at Bhawani Khera on two occasions. Ravi Shankar abducted victim
from Bhawani Khera to take her to Jammu, but the two other accused, who
were police officials posted at Bhawani Khera police station, took Ravi
Shankar and the victim, when they arrived at the bus stand of Bhawani on
their way to Jammu, to the said police post and put Ravi Shankar and the
victim in different rooms and committed rape on victim one after the another
and thereafter accused took Ravi Shankar and the victim girl to the railway
station and left them there.

The Supreme Court reduced the sentence to five years from ten years.
Then the State of Haryana filed this review petition to enhance the sentence.
But it was refused.

It was held that the factors like the character or reputation of the victim
were wholly alien to the very scope and object of section 376 and could never
serve either as mitigating or extenuating circumstances for imposing the sub-
minimum sentence with the aid of the proviso to section 376(2). Thus where
the Supreme Court in its judgment had used the expression ―conduct‖in the
lexigraphical meaning for the limited purpose of showing as to how the victim
had behaved or conducted herself in not telling anyone for about five
days about the sexual assault perpetrated on

.her and it was observed that the peculiar facts and circumstances of the case
coupled with the conduct of the victim girl did not call for minimum sentence
as prescribed under section 376(2), it could be said that the Supreme Court
neither characterised the victim, as a woman of questionable character
and easy virtue nor made any reference to her character or reputation.
 On the question of sentencing, while reducing it from 10 years to five
years, it expressed its opinion that this court was second to none in upholding
the decency and dignity of womanhood and it had not expressed any view in
its judgment that character, reputation or status of a rape victim was a relevant
factor for consideration by the court while awarding the sentence to a rapist.

The Supreme Court judgment in the Suman Rani case is distressing not
just because the policemen who were convicted of custodial rape by three
lower courts had their sentence reduced by half, using the proviso of
―adequate and special reasons ‖, which empowers a court to reduce the
sentence, but because of the reason given by the court for this mitigation. The
gist of these is that victim's character was such that she more or less asked
for it and that in the circumstances the men were not wholly to blame.

Significantly, the Sessions Court judge who gave an earlier ruling in

Suman Rani‘scase had stated that all said and done, even a girl of easy virtue
was also entitled to all the protection of law and could not be compelled to
sexual intercourse against her will and without her consent. Offence of
rape and other allied offences were created for the protection of fallible,
earthly mortals, and not for goddesses.

In State of Maharashtra v. Madhulkar Narayan Mardikar ,the accused,

Madhulkar, was serving as a police inspector at Bhaiwandi Town

Police Station. In the night, he went to the hut of the victim in uniform and
forcibly raped her in her hut.

The court held that offender-victim relationships might be a better

test for determination of questionable consent. Legal traditions were such that
rape accusations were looked upon with some suspicion in cases where
there was anything more than passing acquaintanceship. But it was not a
correct position of law.
 It further held that in order to gain a proper understanding of rape from
victim's perspective, it was necessary to include more sexual acts than the law
did at present, it was also important to make distinction between those sexual
acts finally included. Thus, rape could be defined as sexual access gained
by any means where the woman's overt genuine consent was absent and
where there was an absence of relative equality. Only evidence of the positive
desire dignified sexual intercourse and made it joyful and anything less was
against her will and wisdom ought to be considered as rape.

The decision in this case deserves a bouquet. It serves to correct

certain indefensible extensions and assumptions drawn by patriarchal
laws, which violate the human rights and right of privacy of a category of
women - referred to ―women of easy virtue‖.These assumptions often aid
and abet acquittals in cases relating to crimes committed by men in
uniform, i.e., the police.

In State of Karnataka v. Mahabaleshwar Gourya Naik,the accused,

Mahabaleshwar Gourya Naik, 18 years old, wrongfully restrained the
victim girl, aged about 15 years, studying in 9th standard, and committed
rape without her consent and during the course of said offence, the accused
caused hurt to the victim. The victim committed suicide before the trial of
the case and her evidence could not be recorded.

The trial court convicted the accused for wrongfully restraining and
causing simple hurt to the victim and acquitted him of offence of rape. Both
trial and High Court on appeal took the view that the victim was dead and not
available for examination, the accused could not be convicted for committing
rape.

In the Supreme Court, Ratnavel Pandian J., pointed out that on the
basis of evidence of the prosecution witnesses and medical evidence, it is
established that there was an attempt of rape, if not rape itself. The judge
observed:
 As stated merely because a victim was dead and consequently could
not be examined can never be a ground to acquit the accused if there was
evidence otherwise available proving the criminal act of the accused
concerned.

It was held that an offence of attempt to rape was committed. The

Supreme Court sentenced the accused to undergo rigorous imprisonment of
five years. In this case, the Supreme Court had taken out the procedural law
on rape from the thicket of technicalities and led it to the road of plain
common sense to provide justice to the hapless victim of rape.

In P. Rathinam v. State of Gujarat, the victim, a tribal woman, was

raped in the presence of her husband by some police officers. A Commission
was appointed by the Supreme Court to find out the true state of affairs. The
Commission submitted its report holding the incident to be true and also
pointing out the officers guilty of dereliction of duty in the matter. On the
basis of this report, departmental inquiries were conducted against the officers.
When the matter came up for hearing on 2.4.1993, some of the inquiries were
concluded but others were still under process of completion.

The Government filed an affidavit explaining the stage of inquiry and

the reasons for the delay. On this the Court observed that while it did not
propose to deal with the reasons assigned for delay in finalization in respect
of each of the inquiries it must say it was not satisfied with the reasons
assigned.

The inuiries were pending over the last several years. The Court made the
following directions:

1. All the inquiries pending as on today should be concluded within three

months subject, of course, to any other order of the stay granted by a
competent Court on or before this date. It directed the said inquiries
should proceed unhindered hereafter and should not be stayed by
any Court or Tribunal hereinafter...Any delay or violation of this
order, it
 was made clear, should be viewed seriously and the person responsible
therefore should be answerable.

2. A sum of Rs 50,000/- should be paid as interim compensation, by the

State of Gujarat, to the victim.

This case illustrates the utter brutality and lawlessness indulged in

by some of the police personnel and the ways in which justice is delayed
in bringing the culprits to book.

This case is also a notable decision of the Supreme Court in which

court suggested to the government to take steps to enact legislation to
ameliorate the plight of the victim of rapes and to provide compensation to
them. This welcome trend enhances the prestige of the apex court and
portrays its genuine concern for weaker sections of society.

In Dhananjoy Chatterjee alias Dhana v. State of West Bengal,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 ‘scry
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.

The considerations of social and human values and expectations from

the apex Court in its activist formare satisfied by this sensible pronouncement
of the apex Court.

In Delhi Domestic Working Women's Forum v. Union of India ,a

public interest litigation was filed by the petitioner's forum under Article 32 of
the Constitution of India.

On 10 Feb 1993 six tribal girls from Bihar, who were working as
domestic servants in Delhi, boarded the Muri Express at Ranchi for Delhi. The
train reached Khurja station at 11 P. M. and while they were all asleep. One of
them got up and complained to others that somebody was teasing her. Then 7
to 8 accused, Army Jawans, came to them and molested them. The accused
threatened the victims that if they raised any hue and cry, they would be
thrown out of the running train. Four of them were raped by the accused. Two
of the six girls saved themselves by hiding under the seats. The victims tried
to lodge a complaint but nobody tried to pay heed to them. As soon as the
train reached the New Delhi station, the accused ran here and there but the
victims
managed to catch hold of one accused with the help of public and officers of
the Army and FIR was lodged.

Justice Mohan delivering the judgment of the Court drew attention to

the defects of the existing system. First complaints were not given the
attention that was warranted and the victim often said that giving evidence in a
rapes trial was an ordeal worse than rape itself. In this context the judge
cited the views of writers like Jennifer Temkin, Kelly Shapland and Reilly. In
view of this the court found it necessary to give the broad parameters in
assisting the victims of rape such as:

1. Complainants of sexual assaults should be provided with legal

representation. The victim's advocate should not only assist her in
filing the complaint but also guide her in getting other kinds of
assistance like psychiatric and medical,

2. Legal assistance would have to be provided at the police station

as well as in view of the distressed state of mind of the victim,

3. Police should be under a duty to inform the victim of the right to get
representation before asking her questions and the police report should
state that she was so informed,

4. A list of advocates should be prepared who were willing to act in these

cases ,

5. Such advocates should be appointed by the Court, but to avoid delay

advocates might be authorised to act in police station before
permission from the court had been obtained,

6. A criminal injuries compensation board should be set up,

7. Compensation for the victim should be awarded by the court on the
conviction of the offender and by the criminal injuries compensation
board whether or not a conviction had taken place.
 The court, while concluding directed that in view of the provisions
contained in section 1 of the National Commission For Women Act, 1990, the
Commission would have to evolve such scheme as to wipe out the tears of
such unfortunate victims; and the scheme should be prepared within six
months from the date of the judgment; and the Union of India should examine
and should take necessary steps for the implementation of the scheme at the
earliest.

No doubt section 357(3) of the CrPC, 1973 enables a criminal court to

grant compensation to a victim but this provision has two drawbacks.
Firstly, the award of compensation lies at the discretion of the court;
secondly, if an accused person was not having the means to pay
compensation, the remedy was worthless. In other words there was no
obligation on the State to provide for compensation.

` In India, even though rapes, gang rapes and mass rapes have drawn the
attention of media, the law is far behind in providing compensation to the
victims of crimes in general. In the light of the above discussion this
judgment is an important landmark step in the direction of upholding victim's
right.

In Bodhisattwa Gautam v. Ms. Subra Chakraborty,the accused had

entered into a false marriage with the victim and she became pregnant. He
made her undergo an abortion. He repeated the same thing again. When she
asked him to maintain her, he disowned her on the ground that there was no
marriage. The court whilst refusing the accused‘srequest to quash the
prosecution also expatiated on rape law. The court ruled that rape was not
merely an offence under the Penal Code; it was also a violation of
woman's right to live with dignity and personal freedom. Saghir Ahmed, J.
speaking on behalf of the Court said:

Rape was thus not only a crime against the person of a woman
(victim), it was a crime against entire society. It destroys the entire
psychology of a woman and pushes her into deep emotional crisis.... It was a
crime against
basic human right and was also violative of the victim's most cherished of the
Fundamental Rights, namely, the Right to Life contained in Article 21.
To many feminists and psychiatrists, rape was less a sexual offence than an
act of aggression aimed at degrading and humiliating women.

The court recognized that fundamental rights could be enforced

even against private bodies and individuals. The court held that a court trying
a case for rape had jurisdiction to award even interim compensation during
the pendency of the trial. The court ordered that the accused should pay to
the victims a sum of Rs. 1000 every month as interim compensation until the
case was decided. She was entitled to receive arrears of such interim
compensation from the date on which the complaint was filed.

The higher judiciary has shown concern for women's human rights in
recent times. The Supreme Court has also been greatly influenced by the
International declarations and conventions on human rights. An entirely new
and very revolutionary illustration of judicial activism was to be found in this
case. This is indeed a very significant decision of the Supreme Court. Justice
Saghir Ahmed rightly said, ―the rape law do not, unfortunately, take care
of the social aspect of the matter and were inept in many respects‖.

In State of Punjab v. Gurmit Singh, an appeal was directed against the

judgments and order of Additional Judge, Special Court, Ludhiana by which
the accused were acquitted of the charges of abduction and rape. The
judgment impugned in this appeal presents a rather disquietening and
disturbing feature. It demonstrates lack of sensitivity on the part of the court
by casting unjustified stigmas on a victim aged below 16 years in a rape case,
by overlooking human psychology and behavioural probabilities. An
intrinsically wrong approach while appreciating the testimonial potency of the
evidence of the victim has resulted in miscarriage of justice.

150
The brief facts of the prosecution case were:

The victim, a young girl below 16 years of age, was studying in 9th
class at the relevant time in government high school. The Matriculation
examinations were going on at the material time. On 30th March 1984 at
about the 12.30 PM after taking her exam, the victim was going to the house
of her maternal uncle and when she had covered a distance of about hundred
karmas, from the school a blue Ambassador car being driven by a sikh youth
aged 20/25 years came from behind. Accused Ranjit Singh came out of the car
and caught hold of the victim from her arm and pushed her inside the car.
Accused Gurmit Singh threatened the victim, that in case she raised an alarm
she would be done to death. All the three accused drove her to tubewell of
accused Ranjit Singh . She was taken to the ‗Kotha‘of tubewell. There
accused Gurmit Singh committed rape on her. Then the other two accused
came in one by one and committed rape upon her. They all subjected her to
sexual intercourse once again during the night against her will.

The apex court held that the grounds on which the trial court
disbelieved the version of the victim were not at all sound. The findings
recorded by the trial court rebelled against the realism and lost their
sanctity and credibility. The court lost sight of the fact that the victim was
a village girl. She was a student of 9th class. It was wholly irrelevant and
immaterial that she was ignorant of the difference between a Fiat car, an
Ambassador or a Master car. No fault could also be found with the
prosecution version on the ground the victim had not raised an alarm while
being abducted. If the investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the driver or the
car, it could not become a ground to discredit the testimony of victim.

In the opinion of the court there was no delay in lodging of the FIR
either and if at all there was some delay, the same had not only been
properly explained by the prosecution but in the facts and circumstances of
the case was also natural. The court could not overlook the fact that in sexual
offences delay in the lodging of the FIR could be due to variety of reasons
particularly

151
the reluctance of the victim or her family members to go to the police and
complain about the incident that concerned the reputation of the victim and the
honour of her family. It was only after giving it a cool thought that a
complaint of sexual offence was generally lodged.

The conduct of victim in not telling the incident to anybody except her
mother appeared to be most natural. The trial court overlooked that a girl in a
tradition-bound non-permissive society in India, would be extremely reluctant
even to admit that any incident which was likely to reflect upon her
chastity had occurred, being conscious of the danger of being ostracized by
the society or being looked down by the society.

The courts must, while evaluating evidence, remain alive to the fact
that in a case of rape, no self-respecting woman would come forward in court
just to make a humiliating statement against her honour such as was involved
in the commission of rape on her. In cases involving sexual molestation,
supposed considerations which had no material impact on the veracity of the
prosecution case or even discrepancy in the statement of the victim should not,
unless the discrepancies were such which were of fatal nature, be allowed to
throw out an otherwise reliable prosecution case. The inherent bashfulness of
the females and the tendency to conceal outrage of sexual aggression were
factors, which the court should not overlook. The testimony of the victim in
such cases was vital and unless there were compelling reasons, which
necessitated looking for corroboration of statement, the court should find no
difficulty to act on the testimony of victim of sexual assault alone to convict
an accused where her testimony inspired confidence and was found reliable.
Seeking corroboration of statement before relying upon the same, as alone, in
such cases amounted to adding insult to injury.

The evidence of victim of sexual assault stood almost on a par with the
evidence of an injured witness and to an extent was even more reliable.
Corroborative evidence was not an imperative component of judicial
credence in every case of rape. Corroboration, as a condition for judicial
reliance on the
testimony of the victim, was not a requirement of law but a guidance of
prudence under given circumstances.

The court expressed its strong disapproval of the approach of the trial
court and in casting a stigma on the character of the victim. Even in cases,
unlike the present one, there was acceptable material on the records to show
that the victim was habituated to sexual intercourse; no such inference like the
victim being of loose moral character was permissible to be drawn from those
circumstances alone. Even that victim had a right to refuse to submit herself to
sexual intercourse to anyone and everyone because she was not a
vulnerable object or prey for being sexually assaulted by anyone and
everyone.

The court set aside the judgment of the trial court and convicted all the
three accused for offences under sections 363/366/368 and 376 Indian Penal
Code. So far as the sentence was concerned, the court had to strike the
balance. The accused as well as the victim must have got married and settled
down in life. The court sentenced accused for the offence under section 376,
IPC to undergo five years rigorous imprisonment each and to pay a fine of
Rs 5000 each and in default of payment of fine to 1 year's rigorous
imprisonment each. For the offences under Section 363, IPC the court
sentenced them to undergo three years rigorous imprisonment each, but
imposed no separate sentence for the offences under sections 366/ 368 IPC.

After deciding the case, the court discussed one other aspect of such
cases of sexual assaults in detail. It stated that crime against women in
general and rape in particular was on the increase. It was a sad
reflection on the attitude of indifference of the society towards the violation
of human dignity of the victims of sex crimes. We must remember that a
rapist not only violated the victim's privacy and personal integrity, but
inevitably caused serious psychological as well as physical harm in the
process. Rape was not merely a physical assault - it was often destructive
of the whole personality of the victim. A murderer destroyed the physical
body of his victim; a rapist degraded the very soul of the helpless female. The
courts, therefore, shoulder a great responsibility while trying an accused on
charges of rape. They must
deal with such cases with utmost sensitivity. The courts should examine the
broader probabilities of a case and not swayed by minor contradictions
of insignificant discrepancies in the statements of victim, which were not
of a fatal nature, to throw out an otherwise reliable prosecution case. If
evidence of the victim inspired confidence, it must be relied upon without
seeking corroboration of her statement in material particulars.

There had been lately, lot of criticism of the treatment of the victims of
sexual assaults in the court during their cross-examination. The provisions of
Evidence Act regarding relevancy of facts notwithstanding,some defence
counsel adopted the strategy of continual questioning of the victim as to the
details of rape. The victim was required to repeat again and again the details
of the rape incident not so much as to bring out the facts on record or to test
her credibility but to test her story for inconsistencies with a view to
attempt to twist the interpretation of events given by her so as to make
them appear inconsistent with her allegations.

The courts, therefore, should not sit as a silent spectator while the
victim of crime was being cross-examined by the defence. It must effectively
control the recording of the evidence in the court. While every latitude should
be given to the accused to test the veracity of the victim and the credibility of
her version through cross-examination, the court must also ensure that cross-
examination was not made a means of harassment or causing humiliation to
the victim of crime.

A victim of rape, it must be remembered, had already undergone a

traumatic experience and if she was made to repeat again and again, in
unfamiliar surroundings what she had been subjected to, she might be too
ashamed or even nervous or confused and her silence or a confused stray
sentence might be wrong fully interpreted as ―discrepancies and
contradictions‖in her evidence.

The court conducting the inquiry and trial of a rape case involves a
duty on the court to conduct the trial of rape cases etc invariably ―in
camera‖.It would enable the victim of crime to a little comfortable and
answered question with greater ease in not too familiar surroundings. Trial in
camera would not only be keeping with the self-respect of the victim of crime
and in tune with the legislative intend but was also likely to improve the
quality of the evidence of the victim because she would not be so hesitant or
bashful to depose frankly as she might be in an open court, under the gaze of
public. The improved quality of her evidence would assist the courts in
arriving at the truth and sifting truth from falsehood. Trial of rape cases in
camera should be the rule and an open trial in such cases an exception.

When trial were held in Camera, it would not be lawful for any person
to print or publish any matter in relation to the proceedings in the case, except
with the previous permission of the court as envisaged by Section 327(3), Cr
PC. Wherever possible, it might also be worth considering whether it would
not be more desirable that the cases of sexual assault on the females were tried
by lady judges, wherever available, so that the victim could make her
statement with greater ease and assist the court to properly discharge
their duties without, allowing the truth to be sacrificed at the altar of rigid
technicalities while appreciating evidence in such cases.

The courts should, as far as possible, avoid disclosing the name of the
victim in their orders to save further embarrassment to the victims of sex
crime. The anonymity of the victim of the crime must be maintained as far as
possible through out.

No praise is high for judgment rendered by A. S. Anand J. in this case.

It is notable for its empathy for the victims of rape in the trial process which is
justly regarded by many of the victims as worse than the rape itself. The
judgment also draws attention to the duties of the trial courts in relation to the
trial of sex offences and in particular to avoid the disclosure of the name of the
victim.
 This judgment is a landmark and trendsetter judgment that has been
followed by the courts later on, while deciding the cases involving sexual
offences, in almost all the cases.
In State of Rajasthan v. Ram Narain while the victim aged between 15
to 17 years, was returning from her uncle‘souse to her parent‘s house,
the accused enticed her by telling her that other women folk had assembled at
the outskirts of the village to go to circus, and induced her to accompany
them. She accompanied them to the outskirts but did not find the
womenfolk. The accused then forced her at knifepoint to accompany them to
Sirchi, and then to Jaipur. Later she was taken to Martipura where one of the
accused had sexual intercourse with her. Subsequently, the father of the
victim recovered her from the house of that accused.

The trial judge found that accused guilty under sections 376,366 and of
342 of the IPC and sentenced him to seven years imprisonment, and the
other accused were also convicted under sections 366 and 342 of the
IPC. The accused appealed against the conviction in the Rajasthan High
Court. The High Court reduced their sentence to the period already
undergone, vis., 1 and 1/2 months on the ground that the accused was 18
plus years old when the offence was committed.

Before the Supreme Court the usual pleas that the victim was the
consenting party and that there was a month‘sdelay in filing the FIR, were
taken. The Court had no difficulty in rejecting the pleas in view of the victim's
age (15 to 17 years) and medical evidence. Setting aside the judgment of
the High Court, the Supreme Court observed that the High Court
committed a great error of law, in reducing the sentence.

The Supreme Court enhanced the sentence of the first accused to five
years under section 376 and a fine of Rs 2000/ -. All the accused were
convicted under sections 366 and 342 to five years and one year
respectively and a fine of Rs 1000/-. The Court further ordered that the
amount of the fine be paid to the victim.
 In State of A. P. v. Gangula Satya Murthy , the accused, a
young married man had developed infatuation for the victim (deceased)
who was residing in his neighbourhood. The victim used to visit the
accused‘shouse to watch television programmes.

On the fateful evening, the victim stepped into the accused‘shouse for
watching the telecast programmes. As the accused was all-alone then in
the house, he subjected the victim to sexual intercourse by forcibly putting
her on the cot. When she threatened that she would complain to her parents
the accused caught hold of her neck and throttled her to death.

It was observed by the apex court that even if the trial court formed an
opinion, from the absence of hymen that the victim had sexual
intercourse prior to the time when she was subjected to rape by the accused
she had every right to refuse to submit herself to sexual intercourse by the
accused.

It is a path-breaking judgment by Thomas, J., in which he stated that a

strong exception was taken to an approach which says that if an unmarried
woman was habituated to sexual intercourse, it was taken that Rape: Judicial
Approach In India she was a woman of easy virtue and as such more likely to
be a consenting party.

In this case, it was also observed that how the courts should proceed to
deal with cases of rape. The courts were expected to show great responsibility
while trying an accused on charges of rape. They must deal with such cases
with utmost sensitivity. The courts should examine the broader probabilities
of a case and not get swayed by minor contradictions or insignificant
discrepancies in the statement of the witnesses, which were not of a fatal
nature to throw out allegations of rape. This was all the more important
because, of late, crime against women in general and rape in particular on
the increase. The courts must deal with rape cases in particular with utmost
sensitivity and appreciate the evidence in the totality of the background of the
entire case and not in isolation.
 These type of guidelines are needed and expected from the Apex
Court to sensitise the lower judiciary, which it issued justly in the present
case.

In Chairman, Railway Board v. Chandrima Das, a practicing advocate

of Calcutta High Court filed a petition under Article 226 of the Constitution
against Chairman, Railway Board Others claiming compensation for the
victim, Bangladeshi National who was gang raped by many including
employees of Railway in a room at Yatri Niwas at Howrah Station of
Eastern Railways.

On the basis of the facts High Court awarded the sum of Rs. 10 lacs as
compensation for victim. The High Court was of the opinion that rape was
committed at Rail Yatri Niwas belonging to Railways and perpetrated
by Railway employees.

The apex court awarded compensation of ten lacks to that alien woman
under Article 21 of the Constitution. The court also relied upon international
human rights instruments and observed that the International Covenants
and Declarations as adopted by the United Nations had to be respected
by all signatory States.

This case is a unique example of recognition of human rights of the

rape victims and also the liability of State for acts done by its staff. Victim
compensation has also been recognized as the need of hour in this
judgment. The Apex Court had adhered to the principle of ‗Vasudham
Kutumbhkam‘in this case and had been more graceful in awarding
compensation to the victim, a Bangladeshi woman. This activism of the
Supreme Court is praiseworthy.

In State Government of N.C.T of Delhi v. Sunil , 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 were very tenuous. Nonetheless it was difficult to
enter upon the finding that the accused were equally guilty of murder of
victim.

It could happen during the course of violent ravishment committed by

either both or by one of the rapists without possibly having any intention or
even knowledge that their action would produce any such injury. Even so, the
rapists could not disclaim knowledge that the acts done by them on a little
infant of such a tender age were likely to cause its death. Hence, they could
not escape conviction from the offence of culpable homicide not amounting to
murder.

In this case High Court appeared to be determined to question

every points rose by the prosecution that might go against the defence. It
clearly shows the indifferent attitude of the judiciary even at the level of
the High Court.

In State of U.P. v. Pappu,the Court held that even in a case where it is

shown that the girl is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the accused from the charge of
rape. It has to be established that there was consent by her for that particular
occasion. Absence of injury on the prosecutrix may not be a factor that leads
the court to absolve the accused.

This Court further held that there can be conviction on the sole
testimony of the prosecutrix and in case, the court is not satisfied with the
version of the prosecutrix, it can seek other evidence, direct or circumstantial,
by which it may get assurance of her testimony.
 The Court held, it is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an accomplice after the
crime. There is no rule of law that her testimony cannot be acted without
corroboration in material particulars.

In State of Karnataka v. Raju, the judgment rendered by a learned

Single Judge of the Karnataka High Court reducing the custodial sentence of
respondent to 3 years instead of seven years as was imposed by the
learned Second Additional Sessions Judge, Gulbarga, after convicting the
respondent for an offence punishable under section 376 of the Indian Penal
Code,1860, was challenged in appeal.

The victim was aged less than 12 years when she was sexually
ravished by the respondent on 31.1.1993 at about 12.30 p.m. On the basis of
First Information Report lodged at the police station, law was set into motion.
On completion of investigation, charge-sheet was filed and accused faced trial
but he pleaded innocence. Prosecution placed reliance on the evidence of
victim and the medical evidence. The trial court convicted the accused under
section 376 IPC. An appeal was preferred before the High Court and the
same was disposed of by the High Court maintaining the conviction but
sentence was reduced to 3 years, since the High Court felt that in view of
certain special reasons the custodial sentence was to be reduced to 3 years.

It needs no emphasis that the physical scar may heal up, but the
mental scar will always remain. When a woman is ravished, what is
inflicted is not merely physical injury but the deep sense of some deathless
shame. An accused cannot cling to a fossil formula and insist on
corroborative evidence, even if taken as a whole, the case spoken to by the
victim strikes a judicial mind as probable. Judicial response to human rights
cannot be blunted by legal jugglery.

The present case is covered by section 376(2)(f) IPC i.e. when rape is
committed on a woman when she is under 12 years of age. Admittedly, in
the

160
case at hand the victim was 10 years of age at the time of commission of
offence.

The measure of punishment in a case of rape cannot depend upon the

social status of the victim or the accused. It must depend upon the conduct of
the accused, the state and age of the sexually assaulted female and the
gravity of the criminal act. Crimes of violence upon women need to be
severely dealt with. The socio-economic status, religion, race, caste or creed
of the accused or the victim are irrelevant considerations in sentencing
policy. Protection of society and deterring the considering the legal position
and in the absence of any reason which could have been treated as
‗special and adequate reason‘reduction of sentence as done by the High
Court is clearly unsustainable. The High Court's order reducing the sentence is
set aside.

In Nazir Ahmed v. State of Jammu and Kashmir, 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.

The Jammu and Kashmir High court held that it could be said that the
divorce deed was just a paper writing which was never given any legal effect.
Cohabitation with the prosecutrix for seven or eight years continuously as her
husband would not amount to rape and he was entitled to acquittal.

In State of Rajasthan v. Madan Singh , 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
161
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
are 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.

In Rajinder @ Raju v. State of H.P .,the prosecutrix, a young girl about

18 years of age, was staying with her parents in village Kothi, district
Bilaspur, (H.P.). The accused, Rajinder@Raju, resident of village Duhak,
district Bilaspur, had taken contract for laying G.I. Pipeline near the residence
of the prosecutrix. In that connection, he used to store his material in their
house .On January 16, 1996, prosecutrix had some throat pain. When the
accused came to the house of the prosecutrix and came to know that the
prosecutrix has been suffering from throat pain, he suggested to the mother of
the prosecutrix that his cousin at Ghumarwin was a doctor and if permitted,
he could show the prosecutrix to his cousin to which the mother of the
prosecutrix agreed.

The accused took the prosecutrix on his scooter at about 3.00 P.M.
Instead of taking the prosecutrix to Ghumarwin, he took her to Jablu stating
that he had to collect the rent from his tenants. From Jablu, the accused took
prosecutrix to Berthin. The accused reached Berthin at about 8.00 - 8.30
P.M. alongwith the prosecutrix. At Berthin, the accused bought some sweets
and told the prosecutrix that he would take her to his house as it was dark.
The accused instead of taking her to his house, took the scooter to some
kachha road and made her to get down from the scooter. After spreading his
pattu on the ground and gagging the prosecutrix mouth made her lie down;
untied her salwar and committed the sexual intercourse with her forcibly.
The accused then left her leaving behind his pattu and torch. After the
accused had left, the prosecutrix saw some light from a house down the road.
She walked upto that house and
told the lady, Smt. Bimla Devi, residing there, of the incident. In the morning,
the statement of prosecutrix was recorded by one of the villagers viz., Roop
Sing. The FIR was then lodged. The Sessions Judge, Bilaspur on
consideration of the evidence on record, convicted the accused under
sections 366 and 376 IPC. The accused was sentenced to rigorous
imprisonment for seven years and to pay a fine of Rs. 10,000/- with default
stipulation for the graver offence under section 376 IPC only.

The accused challenged his conviction and sentence before the

High Court of Himachal Pradesh. The learned Single Judge dismissed the
appeal preferred by the accused and affirm the judgement of the trial court
convicting the accused under sections 366 and 376 IPC.

In Tameezuddin v. State (N.C.T of Delhi),the Court held ,―It is true

that in a case of rape the evidence of the prosecutrix must be given
predominant consideration, but to hold that this evidence has to be
accepted even if the story is improbable and belies logic, would be doing
violence to the very principles which govern the appreciation of evidence in
a criminal matter.‖

Even in cases where there is some material to show that the victim
was habituated to sexual intercourse, no inference of the victim being a
woman of ―easy virtues‖or a women of ―loose moral character‖can be
drawn.

Such a woman has a right to protect her dignity and cannot be

subjected to rape only for that reason. She has a right to refuse to submit
herself to sexual intercourse to anyone and everyone because she is not
a vulnerable object or prey for being sexually assaulted by anyone and
everyone. Merely because a woman is of easy virtue, her evidence cannot
be discarded on that ground alone rather it is to be cautiously appreciated.

In Jaswant Singh v. State of Punjab, on the night of 25th June, 1989,

the prosecutrix was sleeping in the courtyard of her house and her adoptive
parents were also sleeping in the same courtyard. The prosecutrix around
11p.m. got up to answer the call of nature and at that time all the three
appellants, namely, Kuldeep Singh, Major Singh and Jaswant Singh barged
into the courtyard and gaged her mouth all of a sudden making her totally
helpless and immovable. Kuldip Singh pointed a pistol at her and then all the
accused bodily lifted her to the house of Jaswant Singh.

She could not raise hue and cry as she was in panic. Major Singh and
Charan Singh has forcibly thrown the prosecutrix on a cot. Kuldip Singh
removed her clothes forcibly and committed sexual intercourse with her
against her will and consent, and thereafter the rest of the accused had also
committed rape on her. Thereafter the proscutrix was allowed to go. She
was threatened and warned not to disclose the occurrence to her parents. On
returning home, the prosecutrix narrated the occurrence to her parents.

On the following day Surjit Kaur, mother of the prosecutrix informed

Gurdev Singh Sarpanch and Gajjan Singh Lambardar. She then went to police
station, Rajkot to inform the police about the incident but the concerned police
did not take any action against the accused. Therefore a written complaint was
filed on July 5, 1989 before Senior Superintendent of Police Ludhiana which
was in turn sent to Deputy Superintendent of Police who visited the village on
July 8, 1989 and recorded the statement of the prosecutrix on the basis of
which a formal F.I.R. was issued on same day. The sentence of 10 years
rigorous imprisonment for rape and 5 years rigorous imprisonment for
abduction was held not liable to be reduced. The alleged dispute over a
common wall was not of such a grave nature as compelling the entire family
of prosecutrix to go to the extent of putting at stake its reputation and fair
name of a young girl to settle the scores with the accused. Therefore the plea
of false impliciation raised by the accused was held untenable.

In Abbas Ahmed Choudhary v. State of Assam, prosecutrix alleged that

she was abducted and raped by 3 accused persons. But only two of the
accused were apprehended by police along with prosecutrix. Prosecutrix was
consistant in attributing rape only to two apprehended accused. As regards
absconding accused though in Court statement she had attributed rape to him
also she had not done so in her statement under Section 164 Criminal
Procedure Code.

It was held that the absconding accused was therefore entitled to

acquittal. It was also made clear in this case that testimony of prosecutrix is
though entitled to primary consideration, the principle that prosecution must
prove the guilt beyond reasonable doubt still applies. There can be no
presumption that a prosecutrix would always tell the entire story truthfully.

In Narender Kumar v. State (N.C.T.of Delhi ),the appeal has been

preferred against the impugned judgment and order passed by the High
Court of Delhi by which it has affirmed the judgment and order of the trial
Court convicting the appellant under section 376 of Indian Penal Code,
1860 and awarded the punishment of rigorous imprisonment for a period of 7
years and imposed a fine of Rs.2000/- .

Facts and circumstances giving rise to this case are that Smt.
Indira (prosecutrix) was going from village Khirki to Chirag, Delhi on that
day at about 8 p.m., the appellant met her near Ganda Nala, he caught hold
of her hand and dragged her towards the bushes on the edge of the road and
committed rape on her.

She could not raise the noise due to fear. After commission of the
offence, the appellant left her there and ran away. The prosecutrix went to
her husband at his working place and from there went to the police station
alongwith her husband to lodge the FIR. The prosecutrix was medically
examined. Appellant was arrested on statement of the prosecutrix as
recorded under section 164 of Code of Criminal Procedure, 1973.

After completion of investigation, charge sheet was filed against

the appellant under Section 376 IPC. The appellant, in addition to his own
statement under Section 313 Cr.P.C., also examined two witnesses in defence.
On conclusion of the trial, the learned Sessions Court vide judgment and order
dated 7/8.12.1999 convicted the appellant for the offences under section 376
IPC and imposed the sentence as referred to hereinabove.

The judicial handling of the various categories of rape is reflected in

the decisions rendered by the Courts from time to time. Though at times broad
policy guidelines are expressed by the Courts, the fact that there is no standard
policy uniformly adopted by all the Courts is evident from a perusal of
aforesaid cases. The judicial attitude has been over the period more pragmatic
but the inherent procedural formalities safeguard the accused providing him
with the benefit of doubt and as a result the trauma and ordeal of the rape
victim remain largely ignored.
 CHAPTER -6

CONCLUSION AND SUGGESTIONS

It is ironical that when Indian mythology places women on a very high

pedestal and they are worshiped and honoured as Goddess of Learning -
Saraswati; of wealth -Laxmi; of power- Parvati, the Indian society adopts
double standards in so far as her guaranteed rights are concerned. There has been
over the decades alarming decline in moral values all around and the
contemporary world faces a great challenge, particularly in India. In the name
of progress and advancement, the people are losing out on moral values. It is
rather sad that while one keeps celebrating women right in all spheres, the
people exhibit no concern for her honour and her dignity. It is a sordid
reflection on the attitude of indifference of the society.

An attitude of men to treat women as a property, to be possessed to the

extent beneficial to them, has almost become a value in itself. Further, an
unchaste woman is treated as a symbol of sin, to be discarded from the society
irrespective of her involvement or innocence, or the hostile circumstances that
placed her in that situation. This newly highlighted, yet age-old problem
regarding a safe and secured life for women folk is worthy of attention with
an open mind. At one, there is doubt as to adequate security for moral values in
existing criminal law; at another, there is a fear as to the development in the
people of disrespect to these values.

Women, no less than men, require to be treated as ‗person, not statistical

abstraction.‘Notwithstanding the enactment of the laws relating to dowry,
rape, violence against women, the ground reality is rather distressing. It
appears that our society is becoming a psycho-sick society with an
uncivilized behaviour.

167
Whenever crime is committed against women and that too a violent crime,
it sends shock waves to the society but those shock waves burst like bubbles in
a very short span. Moreover, it is also true that in the male dominated society
of India, in spite of heinous crime against women, women victims are looked
with a sense of hatred and stigma instead of hatred against the rapists.
Prejudice of the people towards rape needs serious attention and the society must
change its attitude.

The Indian Constitution advocates social justice, a poignant component

of which is gender justice. What is demanded is neither charity, nor grace, nor
as legal aid to a weaker sex. The militant claim is the woman's right to be oneself,
not a doll to please, nor an inmate of a workhouse. She has the human right
to be woman. The courts have taken greater recourse to the right to life and
personal liberty guaranteed by Article 21 of the Constitution for mainstreaming
women's right into the paradigm of human rights.

The concept of rape can be best understood by considering rape as a

crime of power and not of lust. Rape is not sexual act; it is the most blatant
form of violence perpetuated against women. In India, chastity arid virginity
are considered to be great assets of a woman and loss of chastity whether
out of choice or force, is a great handicap. On being raped, the woman is
severely criticised and condemned for loss of chastity. The raped woman faces
not only a personal sense of shame, but also is weighed down with guilt for no
fault of her. In a society like ours, where a woman's chastity is valued more than
her intellect, a woman who has been raped is ashamed and afraid to identify the
criminal.

Rape must be understood as the gravest kind of sexual violence

against women —a crime of power, which is an extreme manifestation
occurring in the continuum of sexual violence. Rape stems from sexist values
and beliefs and it is not simply an issue affecting individual woman. It is a
social and political issue directly connected to power imbalances between men
and women in society.
 The traditional concept of male and female sexuality, males being
sexually aggressive and females sexually passive, paves the way for the
assumption that rape is a natural fact, the occurrence of which cannot be
stopped. In patriarchal societies, the social training imparted to the individuals,
perpetuates the belief that domination is the inherent aspect of all sexual activity
and thus, emerges the close association between violence and sexuality. In fact,
violence and sexuality remain so intricately intertwined that it becomes difficult
to draw a line between normal heterosexual relations and rape.

The rape victim not only undergoes a sequential pattern of emotional

reactions called rape trauma syndrome but is also ostracised from the society.
The rape victim undergoes varied reactions which may be immediate or long
term reactions, aimed at physical and mental integration, worldly adjustment and
personality adjustments. In patriarchal societies, virginity and chastity are
considered to be the great assets of a woman without which her existence
becomes meaningless.

The jurists and criminologists have identified the motivation for rape;
and on the basis classify the typology of rape and rapists, be it may blitz rape,
confidence rape ; or the criminal rapists, the mentally -ill rapist ,group
reformer, incompetent romeo, debt collector ; yet rape is considered to be a
transgression against chastity and the raped woman is severely criticised and
condemned for loss of chastity. For women, the awareness of the possibility of
rape determines their life in a very basic way — curtailing the choices of daily
behaviour which are extremely threatening to the liberty of women.

Rape remains a vastly underreported crime due to the reactions of

the society and the existence of certain myths surrounding the concept. There
is a whole package of myths and lies which mask the real problem of rape and
diverts the attention of the society, so the key issues of rape remain
obscure and
ambiguous and the responsibility of rape is attributed to the woman. Few of the
commonly held myths — that only young and attractive women get raped,
men rape because of uncontrollable urges, women ask for it or women cry
rape — reflect that it is the women's sexuality which is to be held responsible
for provoking or precipitating her rape and men are innocent people who
cannot control their sexual urges and commit rapes because the female sexuality
provides a provocation which they cannot resist.

The existence of these myths shield the fact that rape is a power crime
and the coercion of masculinity provides the basis for its occurrence. Rape is a
produce of sexist society — it is the price, which a society based on
coercive sexuality must pay; where women are seen as objects for male
pleasures, as passive creatures — needing and wanting to be dominated and
controlled. Thus, rape is the manifestation of institutional coercion that flows
from the structure of economic, social and political relations between men and
women generally.

Historically speaking, the hindu scriptures have seriously criticized

the unlawful coming together of a man and a woman for sexual enjoyment
brought about by force, deceit or sexual passion ; and have prescribed severe
punishment on the person guilty of the same ranging from the confiscation of
the property , extermination of genital organs, social ostracization and even
death sentence. The female is also not left scot free and had had to undergo a
penance for the same . The punishment for sexual exploitation varies according
to the caste, the protection and the marital status of the male and female.

Even the muslim law, prescribes that a woman has to be respected and
protected under all circumstances, whether she belongs to your own nation or
to the nation of an enemy, whether she follows your religion or belongs to
some other religion or has no religion at all. A Muslim cannot outrage her
under any circumstances. All promiscuous relationships have been forbidden
to him, irrespective of the status or position of the woman, whether the
woman is a

170
willing or an unwilling partner to the act. The words of the Holy Quran in this
respect are: ―Do not approach (the bounds of) adultery‖.Heavy punishment
has been prescribed for this crime, and the order has not been qualified by any
conditions. Since the violation of chastity of a woman is forbidden in Islam, a
Muslim who perpetrates this crime cannot escape punishment.

Preservation of the dignity of the females has been a concern world

over and all the countries try to preserve the same by classifying the acts
likely to interfere with the dignity of the females, be it may the developed
country like England under the Sexual Offences Act 2003 , or the United
States Of America under the Federal Criminal Code of 1986;or the
developing country like India under Indian Penal Code of 1860.

In India, the consolidation of the criminal acts took place during

British regime when Thomas Macaulay drafted the Indian Penal Code and
the same included the provisions dealing with the offence of rape. It defines
Rape to be a sexual intercourse by a man with a woman against her will,
without her consent, or with her consent; when her consent has been obtained
by putting her or any other person in whom she is interested in fear of death
or of hurt; or with her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully married; or with her
consent when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, who is unable to
understand the nature and consequences of that to which she gives consent; or
with or without her consent, when she is under sixteen years of age. It also
prescribes the punishment to a convict with imprisonment of either description
for a term which shall not be less than seven years but which may be for life or
for a term which may extend to ten years and shall also be liable to fine;
unless the women raped is his own wife and is not under twelve years of age,
in which cases, he shall be punished with imprisonment

171
of either description for a term which may extend to two years or with fine or
with both. The court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than seven
years.

This legal definition of rape focuses only on vaginal - penile

penetration; while oral and rectal penetrations remained ignored and the concept
of digital rape (rape with objects) stands completely unacknowledged. The
criminal justice system adopts the attitudes of disbelief and hostility and treats
the victim with suspicion instead of sympathy. Raped women are subjected to an
institutionalized sexism that begins with their treatment by the police,
continues through a male dominated system influenced by the notions of victims
precipitation and ends with the systematic acquittal of many defacto guilty rapists.

At every step in a rape trial, there are systemic obstacles and

discriminatory attitudes for the victim, which result in complete negation of her
human rights. When a victim reports the case to police, she sets in motion a
complex and lengthy process of legal system. It does little to help the woman
to recover from the ordeal of rape; and much to compound the initial trauma
she experienced at the hands of the offender. The victim has to prove that she
was raped. Her prior lifestyle and sexual conduct are laid before the Court;
and her consent or lack of it, is judged by her reputation. Her sexual character
determines the innocence or guilt of the accused.

Therefore, the courts assume greater importance in dealing with rape

and sexual violence cases in a more realistic manner. Sexual violence apart from
being a dehumanizing act is an unlawful intrusion of the right to privacy and
sanctity of a female. It is a serious blow to her supreme honour and offends her
self-esteem and dignity - it degrades and humiliates the victim; and where the
victim is a helpless innocent child, it leaves behind a traumatic experience.
 Justice Krishna Iyer decries the lopsided view of gender-justice. His
lordship pointed out that the fight is not for woman's status but for human worth.
The claim is not to end inequality of women but to restore universal justice.
The bid is not for loaves and fishes for the forsaken gender but for cosmic
harmony, which never comes till woman comes.

In recent years, the role of the judiciary has extended beyond

issuing directives on social issue concerns to ensuring effective and fair
implementation of the same. As a judge this requires elimination of subtle
ways in which the courtroom perpetuates discrimination and violation of
women‘sright to sexual integrity. A judge needs to proactive and must take
charge of its courtroom to ensure that the subtle play of discrimination through
spoken and unspoken words is eliminated.

The survey of judicial decisions shows that the courts in India have
been endeavouring to reconstitute the fundamental rights to life and liberty
guaranteed by Article 21 of the Constitution in the context of women‘s
experiences and concerns. This has resulted in the meaningful expansion of
those rights. Fundamental rights have been engendered by mainstreaming
women's rights into them. The result is reached by a critical appraisal of the
existing laws and practices from a gender sensitive perspective. This does not
mean mere extension of the rights available to men and women but means a
reconstitution of those rights as to include the aspects of life and liberty, which
are specific to women within the fold of that right. The decisions in rape and
sexual harassment cases show that the court are alive to the need to make changes
in the institutional structures with a view to making women‘s rights effectively
enforceable.

The Judiciary would do well to heed the words of Krishna Iyer, J., that
―social justice is not constitutional clap trap but fighting faith which enlivens
the legislative text with militant meaning‖; or the opinion of Chinnappa
Reddy, J., that ―the discovery of new principles and the creative application of
old principles
is the only way for the judiciary to keep pace with the vast social change
taking place outside the court and to contribute to these changes.‖If they did, there
would be none of these decisions, which go clearly against the very principle of
equality and non-discrimination promised in the court.

The judiciary has in some cases come out of their ivory tower and
attempted to interpret the existing law in a manner which brings about
social justice. Like the other branches, the judiciary has also realised that women
are no longer going to be satisfied by being treated as beneficiaries of welfare
doles but wish to be actively involved in the developmental process in the
country. Some of the observations of the Supreme Court reflect this awareness of
the change though regretfully not always has this consistently been reflected in
the decisions.

This does not mean that complete gender justice has been achieved.
Much more needs to be done. In fact, what has been achieved is little as
compared to what needs to be achieved. Whatever the law may or may not
provide, the efficiency of law depends upon how effectively it is enforced. The
judicial attitude is not uniformly favourable to gender equality. The cases on
rape continue to reflect male chauvinism of the lawyers, judges and police
officers.

The attitude of the Supreme Court towards rape victims does not
always appear to be impartial. The Supreme Court, in Prem Chand's
case,reduced to half the sentences imposed on two constable convicted of raping
a woman at a police post on the ground that rape victim was a woman of
―easy virtue.‖ This type of reasoning is open to question from all sides. The
victim's sexual morals and past sexual experience has little to do with the heinous
crime of rape. A prostitute can be a victim of rape just as much as a virgin or
respectable married woman. And the rapist is no less guilty because the woman
he inflicts himself upon has had sexual experiences with other men. As long as
the woman is not a conscious and willing partner, the act is, by definition, rape.
If the reasoning of the Supreme Court is accepted to be correct, then logically,
there should be no punishment for a culprit
who rapes a woman of easy virtue. In State of Maharashtra v. Madhukar
Narayan Mardikar, the court rightly upheld the self esteem of the woman of the
easy virtue and opined that she too has her right to privacy and nobody can violate
her privacy without her wishes.

Under the new law, Court can impose a punishment of less than 10
years after recording adequate and special reasons. The reasoning of the Supreme
Court that the rape victim was of ―easy virtue‖is neither ‗adequate‘ nor
‗special‘so as to justify the reduction of sentence by one half.

In rape cases the judicial decisions exhibit a paradoxical stance as

some judges have laid emphasis on technical rules of evidence, and others
have had their feet firmly imbedded in the Indian social setting and have been
sensitive to the inequalities and oppression faced by women. It is ripe in time
that the latter view must gain precedence over the former. In Sanya alias
SanyasiChallan Seth
v. State of Orisss, the High Court held that there were glaring inconsistencies
in the prosecution case and the injuries sustained by the victim could be self-
inflicted.

The pragmatic instance of the judiciary can be exhibited from the case of
Delhi Domestic Working Women‘sForum v. Union of India, wherein the
court gave ample directions for the help of the victim of sexual assault, vis;

1. Complainants of sexual assaults should be provided with legal

representation. The victim's advocate should not only assist her in
filing the complaint but also guide her in getting other kinds of
assistance like psychiatric and medical,

2. Legal assistance would have to be provided at the police station as

well as in view of the distressed state of mind of the victim,
3. Police should be under a duty to inform the victim of the right to
get representation before asking her questions and the police report
should state that she was so informed,

4. A list of advocates should be prepared who were willing to act in these

cases,

5. Such advocates should be appointed by the Court, but to avoid

delay advocates might be authorized to act in police station before
permission from the court had been obtained,

6. A criminal injuries compensation board should be set up,

7. Compensation for the victim should be awarded by the court on the

conviction of the offender and by the criminal injuries
compensation board whether or not a conviction had taken place.

Furthermore, in State of Punjab v. Gurmit Singh, it was opined that

the courts must, while evaluating evidence, remain alive to the fact that in a case
of rape, no self-respecting woman would come forward in court just to
make a humiliating statement against her honour such as was involved in the
commission of rape on her. In cases involving sexual molestation, supposed
considerations which had no material impact on the veracity of the
prosecution case or even discrepancy in the statement of the victim should
not, unless the discrepancies were such which were of fatal nature, be
allowed to throw out an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal outrage of sexual
aggression were factors, which the court should not overlook. The testimony
of the victim in such cases was vital and unless there were compelling
reasons, which necessitated looking for corroboration of statement, the court
should find no difficulty to act on the
testimony of victim of sexual assault alone to convict an accused where her
testimony inspired confidence and was found reliable. Seeking corroboration
of statement before relying upon the same, as alone, in such cases amounted
to adding insult to injury.

Though the Supreme Court has exhibited a dynamic attitude in ensuring

gender equality, judicial activism is yet to percolate to the lower levels of
the judicial system. It is hoped that the forward looking ideas reflected in the
decisions of the Supreme Court will percolate to the lower levels of the judiciary
and bar and that will ultimately expedite the social transformation that the
feminist ideology envisions. The researcher has on the basis of the study
concerning the area of research identified the grey areas which need to be
looked into to make the Indian society humane and conscious to the plight of the
females, such as;

1. Special Legislation

The Indian Penal Code was drafted in 1860, and is still holding the ground
to deal with the cases of sexual assault against the females including rape.
The substantive Law stands thoroughly complemented by the procedural
Laws, i.e; Criminal Procedure Code, 1973 and Indian Evidence Act, 1872. Due
interpretation to the legal provisions contained in theses enactments has
been provided by the Indian judiciary, yet despite of these significant
developments, the crime rate against women remain unabated. The data put
forth by national crime record bureau portrays the sordid state of affairs. The
statistical data from 1953 to 2010 reveals that this offence of rape has
increased tremendously i.e. 791%. Statistics given above reveals that the
offence of Rape is increasing at a very high rate .It is not enough to punish rapists
nor is to enough to treat (reform)the rapists.

Therefore, the increase in crime rate can be attributed to the

shortcomings of the legislations as one of the reasons warranting the adoption
of altogether a
fresh piece of legislation especially dealing with the cases of sexual assaults
concerning females. Recently there has been an attempt in India to frame out
a special piece of legislation dealing with sexual assault in the form of
Criminal Law Amendment Bill 2012. This bill has been prepared on the lines
of Sexual Offences Act of 2003 of England. The most impressive feature of
this bill is, it gives protection not only to females but is gender neutral.

2. Classification of Rape

Two schools of thought are significantly predominant in the

classification of rape. One school considers rape as an sexual offence; whereas
the other consider it as a sexual assault. In recent times the school which
consider rape as sexual assault has gained predominance over the other
school. It believes that Rape is an act of aggression in which the victim is
denied her self-determination. It is an act of violence, which, if not actually
followed by beatings or murder is nevertheless always quite close to a life
threatening situation. It is an act of violation, which leaves woman in a state
of humiliation, degradation, fear and rage. Recent research findings contradict
the traditional view and establish that rape is an act of violence and
aggression, reflecting the assailant's feelings of inferiority and insecurity and
is far from being sexually motivated. At the most, rape can be considered as
the sexual expression of frustration and anger and the motivation to assert
power and authority. It is a vain delusion to perceive rape as the expression of
uncontrollable desire of sex rather it is a declaration of domination, whereby
the rapist loses control over his aggressive derives and not sexual passions. This
school of thought favours the rape as sexual assault approach, which stresses
the violent character of rape without denying its sexual overtones or
undercurrents. These feminists are convinced that rape is a power crime
directed against the female sexuality. They maintain that for the power
rapist, the choice of the genitals as the object of aggression is not accidental, but
essential because he is interested in inflicting a particular kind of damage on
the victim. It is imperative that the offence must be seen in terms of violence
than
sexuality. As long as rape is perceived as an act of sexuality rather than
aggression and hostility, it will continue to be interpreted as predominantly
pleasurable to both parties rather than harmful to the victim. It is
emphatically pointed out that rape should be removed from the category of
‗sexual offences‘and reclassified as an assault for recognizing and respecting
the human rights of women.

3. Redefining Rape

Even in the absence of the above parameters of improvement, there is

urgent need to redefine rape so as to keep abreast with the methodology of
sexual assaults. Flavia Agnes has remarked that ‗in all criminal offences, injury
and hurt caused by using weapons is more grievous than the one caused by
the use of limbs but in case of rape, the injury caused by the use of iron rods,
bottles and sticks does not even amount to rape.‖The lacunae inherent in the
definition of rape make it impossible to recognize the concepts like marital
rape, digital rape, etc., thus rendering the definition a hollow statement.

Jaspal Singh, J., of Delhi High Court, has rightly held in Smt.
SudeshJakhu‘scase that intrusions of other objects in the vagina cannot be
brought to convict a rapist under section 376 of the IPC. The Learned. Judge
in this case very cogently remarked that the concept ofcrime undoubtedly keeps
on changing with the change in political, economic and social set-up of the
country. The Constitution therefore, confers powers both on the Central and
State Legislatures to make laws in this regard. Such rights include power to
define a crime and provide for its punishment. Therefore let the legislature
intervene and go into the souls of the matter. Rape is a serious matter though,
unfortunately, it is not attracting serious discussions, not even in Law Schools.
The seriousness of the offence with respect to oral intercourse or vaginal
penetration otherwise than the
male genitals is realized, though involves an act or sadism which is likely to
cause the victim for greater pain and physical damage than rape itself.

Therefore the definition of rape should be changed in order to

include other forms of intrusions on the body of a woman or insertion of other
objects like fingers, or bottle, or stick, or any other insertable object in the vagina
of a woman instead of penile penetration in the course of carnal intercourse.

4. Age of consent

The age of consent as maintained by section 375 had come under

great criticism from various legal experts and feminists, as it is not in
consonance with the other prevailing laws. It remains difficult to find out the
reason for discrepancies among various laws regarding the age of consent. When
a girl is not considered fit for marriage when she is below 18 years of age;
how can she become fit for sexual intercourse otherwise with or without
consent. On one hand the Child Marriage Restraint Act, 1929 does not permit
marriage of a girl below 18 years of age and on the other hand, penal law of
India does not recognise forcible sexual intercourse with a wife between the age
of 15-18 year.

The punishment provided under section 376(1) for marital rape of a child
wife between 12-15 years is also too lenient vis., two years or fine. It is
imperative to follow the pattern of Michigan Criminal Sexual Act that eliminated
consent as an element in the crime of rape, focusing on the conduct of the
offender, rather than the consent of the victim. From a proud and passionate
woman‘spoint of view, it is essential to conceptualize rape in broader terms and
include every sexual act in which female's positive desire is absent. The
positive desire should be determined by relative equality between the parties and
absence of coercion rather than consent.

180
5. Essential of corroboration

There is a serious debate over the issue of corroboration in

determination of rape cases amongst the member of the judiciary. The
traditionalists believe that corroboration is must to support the claims of the rape
victim whereas the radicals believe that the rape victim will not make false
accusations therefore, there is no need for corroboration.

In Rafiq v. State of U.P.,Krishna Iyer, J. referred to the requirement

of corroboration as the ‗sacred cows of criminal law‘in Indo –Angalian
jurisprudence, which are superstitious survivals and need to be re-examine‘. His
lordship further observed that ‗we cannot cling to a fossil formula and insist
on corroborative testimony‘.

In another landmark judgment, BharwadaBhoginbhaiHirjibhai v. State

of Gujarat, the Supreme Court observed –

In the Indian setting, refusal to act on the testimony of a victim of

sexual assault in the absence of corroboration as a rule, is adding insult to the
injury. Why should the evidence of the girl... be viewed with the aid of
spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do
so is to justify the charge of male chauvinism in a male dominated society.
In State of Punjab v. Gurmit Singh, the Supreme Court rightly observed
that Corroborative evidence is not an imperative component of judicial
credence in every case of rape.... a woman or a girl subjected to sexual assault
is not an accomplice to the crime, but is a victim of another person‘slust; and it is
improper and undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice. Inferences have to be drawn
from a given set of facts and circumstances with realistic diversity and not dead
uniformity test that type of rigidity in the shape of rule of law is introduced
through a new form of testimonial tyranny making justice a casualty.

181
6. Political Sensitivity

All the suggested reformatory measures will not prove fruitful unless the
political institutions become sensitive to the plight of victims of sexual
assaults. The reports of the commissions must not fell to deaf ears, but must
receive a passionate consideration. In India, the Law Commission of India had
devoted four of its reports, namely, the 42nd, the 84th, the 156th and 172nd
reports, to the Indian Penal Code. The 42nd and the 156th reports
concentrated on the overhauling of the Indian Penal Code, while the 84th and
172nd reports offered a set of comprehensive suggestions for reform in the
substantive law relating to rape. The central legislature, however, had
favourably responded to the 84th report (and to the reiterated recommendations
of the Law Commission in its 42nd awaiting attention of the legislature report)
by amending, through the Criminal Law (Amendment) Act, 1983, substantive
law relating to rape, but 172nd report is still awaiting a positive response. Such a
delay speaks of political apathy to the problem in hand and must not happen in a
democratic set up.

7. Victim caring investigation and Trial procedure:

As highlighted earlier that rape is not only a physical assault on the

victim but the most cruel violence perpetuated upon her having the potential to
destroy the physical, mental and social personality of victim. She needs special
care and support to manage the continuing trauma for the proper cooperation to
the investigating and prosecuting agencies.

The roughness of prevailing procedures many a time discourages the

victim in reporting the crime; and even if she musters the courage to report, fails
to maintain the same till the tardy process of trial resulting in the undeserved
acquittal of offenders. An Indian Supreme Court Judge while
strongly
condemning the ―fossil formulae‖applied to rape cases referred to the treatment
of rape victims by the legal system as ‗the ravishment of justice.‘

There is also unfortunate delay in disposal of cases in the Court of

law. There should be endeavour by the Courts to reduce the time taken for
disposal of cases in view of the trying and diagnosing situation that the victim
and her family members undergo during the trial stage.

The provisions of Evidence Act regarding relevancy of facts

notwithstanding, some defence counsel adopt the strategy of continual
questioning of the victim as to the details of rape. The victim is required to repeat
again and again the details of the rape incident not so much as to bring out
the facts on record or to test her credibility, but to test her story for
inconsistencies with a view to attempt to twist the interpretation of events given
by her so as to make them appear inconsistent with her allegations.

The courts should not sit as a silent spectator while the victim of crime is
being cross-examined by the defence. It must effectively control the recording
of the evidence in the court. While every latitude should be given to the accused
to test the veracity of the victim and the credibility of her version through
cross- examination, the court must also ensure that cross-examination is not
made a means of harassment or causing humiliation to the victim of crime.

With the increased participation of women in the fields of policing,

lawyering and the judiciary as well, it would be desired if rape cases are
investigated and prosecuted by competent women police and prosecution
official who in turn will not only ensure effective prosecution of the offender but
also take care of the physical, mental, social and other needs of the victim.
8. Training Programmes and Special Courts

(a) In order to rule out gender bias attitudes against rape victims, there should
be training programmes for members of Judiciary and the Bar to build
awareness regarding the women‘splight in rape cases. It will help in the
formation of attitudes conducive to the effective interpretation and
implementation of law.

(b) The victim of rape encounters police officers at the very first stage when she
decides to lodge a complaint. The police officers must be given special
training to deal with the victims of sexual abuse. Gender sensitization
programmes will help the officers to have the required considerate
approach for rape victims. Preferably there should be women officers in
every police station to attend to such females.

(c) The rape cases require a neutral and sympathetic judicial approach, which
is possible when suitably trained and equipped judges hear and decide the
cases. Setting up of special courts for hearing the cases of sexual assault is
strongly recommended. In these special courts, women judges should be
there so that the victim feels comfortable in narrating the details of the
sexual assault perpetrated on her.

(d) In rape trials, the lack of appropriate evidence leads to the acquittal of
the accused. The low conviction rate in rape cases can be attributed to the
lack of coordination between the investigating officers and the public
prosecutors. Appropriate training programmes should be conducted for
the public prosecutors and the police officers who investigate rape cases, so
that through proper coordination between them helps in receiving justice
for the victim. Furthermore, the modern investigating technique should be
adopted in crime investigation which would be of great help in determining
the cases of sexual violence against women.
9. Judicial Sensitivity

The courts are expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitized judge has better statutory armour in cases of
crime against women than long clauses of penal provisions, containing complex
exceptions and provisos. The judiciary can neither prevaricate nor procrastinate.
It must respond 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 render full and effective
relief. Judicial activism generally encompasses an area of legislative vacuum in
the field of human rights.

Thus, one of the most important tasks a judge is expected to perform is

to be responsive and responsible. He must be creative and may create
precedent, where no law exists for women but where it is actually needed.

Judicial decision can influence and under certain circumstances even

compel the government to enact the appropriate provisions to cover up the
deficiency in the existing law, as has been highlighted in the case of Vishakha
v. State of Rjasthan. The other important task is that the judge or judges must
be sufficiently sensitized to the problem. In recent years there is a welcome trend
and the court has tried to humanize the system to the women victims from the
battering given to them by the trial process.

Gender sensitive judges can take more proactive role in the proceedings
rather than simply responding to the material presented by the lawyers. They can
exercise their discretion to assist the process wherever appropriate. They
can recognize the need to obtain the best quality evidence from witnesses
particularly women in criminal trials who have been subjected to violence and
women litigants in civil cases. They can pay the particular attention to the ways
in which
the evidence is recorded. In their appreciation of evidence they can be aware of
the gender context and can control stereotyping.

The court dealing with rape cases should be sensitive towards the
conditions of rape victims and award punishments to rapists with great
seriousness towards women conditions in the Indian society. Punishment may
be made stringent in the case of separated wife‘srape and for the custodial
rapes as these kinds of rapes involve breach of trust of the person in custody.
Severe/more punishment for police culprits can be justified on the grounds of
responsibility of police towards the society, as their business is to keep their
shoes always on, rather than indulging in corrupt activities.

Historically, it is apparent in India that there is a strong prejudice against

a person who commits rape. The doubt as to the protection of this value
under criminal law on rape is unwarranted, for the failure in protecting the
chastity of women is not the defect in criminal law but the inefficiency on the
part of the administrative and judicial machinery to effectively implement the
law and administration of justice.

10. Rape Crisis Centres

Rape Crisis Centres are set up in countries like Australia, Canada,

America, United Kingdom, etc. These centres provide their help through
their telephonic helplines also. These centres provide the rape victims with
medical help, counselling, and financial help by way of providing job
opportunities etc. The help of social workers and counsellors is provided to the
rape victims in order to help their recovery from the trauma and the subsequent
practical difficulties.

Such centres should be set up in India to provide for medical aid

and counseling to the rape victims. Another very important aspect is to provide
counseling for the family members of the victim. In times of distress
and
emotional trauma, best support can be provided by the family members.
Sometimes, due to their biased reactions towards the rape victim, they may not
cooperate well with the victim. In such cases, counselling of the family
members will be a great help in the recovery of the victim.

11. Sentencing
:

Only a fraction of all cases are reported, only a fraction of reported

cases are investigated and lead to trial in the courts and a very minute
fraction of accused are convicted and despite being a clear cut provision for
imposing minimum sentence in section 376, IPC, not only the trial courts but
the High Courts and in some cases even the Supreme Court has resorted to
lower sentence on those grounds which are tough to justify.

No doubt that the courts have the power to award lower sentence than
the prescribed one in the deserving cases to meet the ends of Justice. But
sometimes the courts abuse this power. However, indiscrimination use of
judicial discretion can be regulated by enacting a legal provision whereby the
award of lower sentence than the prescribed one will be effective only after
confirmation by the higher courts than the sentence awarding courts based on
cogent, judicially and justly appreciable grounds.

12. Compensation and

Rehabilitation

Though section 357, CrPC, provides for victim compensation but in

reality the concept of the victim compensation has remained illusive. Barring
a few exceptions this provision has its inherent limitations like -

(i) Conviction of the accused in the case, and

(ii) His financial capacity and willingness to pay the fine.

 However, in some of the cases, the courts of our country treating rape as a
violation of fundamental rights of victim has awarded compensation in
certain cases but the same is not a rule but an exception in view of all the
cases taken together.

The need of the hour is the creation of state sponsored victim

compensatory fund particularly for heinous offences including rape. This

award should have a victim's need based procedure and should be totally
free from the end result of the prosecution that is conviction or acquittal and
should come into action the moment FIR is registered or cognizance is taken of a
complaint.

Since rape is a crime, which kills the victim not only in her own eyes, but
also ruins her familial and social life. Such victim needs affectionate and
sympathetic treatment and cares from the family, society and the governing
system not as a matter of grace but as matter of right enjoying corresponding
duty on these agencies as they fail to honour their commitment of providing a
safe and secure environment to the victimized girl or woman.

For restoring confidence and hope in victim, she needs proper care,
affection and duty bound help from all the agencies.

13. Media Sensitivity

In a democratic set up, one cannot underestimate the role of media which
acts as the fourth wing of the government and strengthens the democratic
working of the institutions. The media reflects the positive attitudes as well as the
negative attitudes. The positive role of the media brought about a significant
change in
relation to custodial rape and led to the reformation of law in the aftermath of
Tukaram v. State of Maharashtra.

On account of the negative attitudes in glamorizing the rape trials, the

rape trials are held necessarily in camera. The media must be sensitive to the
plight of the rape victim and must not highlight the name or any inference
leading to the identification of the victim, as it will be counter productive. The
media must not highlight the case where the offender has been acquitted but
must invariably highlight those cases where the offender has been convicted, as
it will infuse the feeling of deterrence among the people

These areas need immediate attention by the legislators, by the executives

and by the judiciary. The due presentation and recognition of human rights of a
class of persons, who are not only systematically but also institutionally
exploited and constitutes one half of the population of our country as well as
mankind, is the immediate requirement of our society.

Studying the laws, the process, the application of those laws, one thing
is certain- the entire structure of justice needs an over haul, otherwise the
victim shall no longer be the woman, but humanity as a whole.
ARTICLES

 Abraham, Ammu, "Violence Against Women" in National Workshop

on Atrocities Against Women and Family Violence, (Dec., 1987).

 Agnes, Flavia, "A Critical Review of Enactments of Violence During

the Decade" in Women and Violence –A Country Report, ed. by

Maithreyi Krishna Raj, 91 (1991). Centre for Women's Studies, Bombay.

 Agnes, Flavia, "Fighting Rape –Has Amending the Law Helped" 5

The Lawyer's Collective, 4 (1990).

 Agnes, Flavia, "Protecting Women Against Violence" 27 EPW ws-19

(1992).

 Agnes, Flavia, "The Anti Rape Campaign –The Struggle and the
Setback" in The Struggle Against Violence, ed. by Chhaya Datar, 99
(1993). The Indian Press Pvt. Ltd., Calcutta.

 AIDS –I Care... Do you? Men Make a Difference, A Folder released

on World's AIDS Day, 1 December 2001, by World Health
Organisation, SEARO, New Delhi.

 Akbar, Mallika, "Abuse : A Vicious Circle", The Times of India,

(19.11.95).

 Aolain. Fionnula Ni, "Radical Rules : The Effects of Evidential and

Procedural Rules on the Regulation of Sexual Violence in War", 60
Albany Law Review, 883.

209
 LIST OF ABREVIATIONS

• AC Appeal Cases
• AIR All India Reporter
• AJHR Australian Journal of Human Rights

• ccs Central Civil Services

• CEDAW Convention on Elimination of Discrimination Against

Women, 1999

• CHRC Canadian Human Rights Commission

• CMRA Child Marriage Restraint Act, 1929
• Cri LJ Criminal Law Journal
• CrPC Code of Criminal Procedure, 1973
• COHSE Confederation of Health Service Employees
• DLR Delhi Law Review
• EEOC Equal Employment Opponuniry Commission
• FIR First Information Report

• FGM female Genital Mutila tion

• HMA Hindu Marriage Act, 1955

• lAS Indian Administrative Services

• lEA Indian Evidence Act, 1872

• lPC Indian Penal Code, 1860

• IPS Indian Police Services

• LSD Lok Sabha Debates
 LIST OF CASES

A
Abbas Ahmed Choudhary v. State of Assam, (2010) 2 CrL J 2060 (SC)

Abdul v. Emperor, AIR 1932 All 580

Apparel Export Promotion Council v. A.K. Chopra, 1999 1 SCC 759

Arjan Ram v. The State , AIR 1960 Punj 303

Balwant Singh and others v. State of Punjab, AIR 1987 SC 1080.

Bhimrao Harnooji Wanjari v. State of Maharashtra, 1975 Mah. LI 660

Bharat v. State of M.P, AIR 1992 SC 880

Bodhi Sattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922

Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753

Chammudin Sardar v. Emperor, AIR 1936 Cal.

Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988

D

Daler Singh v. State of Haryana, 1995 Cri L.1 614 (P & H)

Delhi domestic working women’s forum v. Union of India, (1995)1SCC14

Dhananjoy chatterjee v. State of West Bengal, 1994(2)SCC 220

D.P.P. v. Morgan, [1976] A.C. 182

Emperor v. Mahadeo Tatya, AIR 1942 Born.

121 Emperor v. Nur Ahmed, AIR 1934 Cal. 7

Gagan Bihari Sonal v. State of Orrisa, AIR 1992 SC 72

Gopi Shanker v. State of Rajasthan, AIR 1953 Ajmer

12 Gopi Shankar v. State, AIR 1967 Raj. 159

Gurcharan Singh v. State of Haryana, AIR 1972 SC

2661
H

Harpal Singh and another v. State of Himachal Pradesh, AIR1981 SC

361 Holman v. The Queen, (1970) WAR 2

Ibrahim v. Emperor, AIR 1927 Lah 772(2)

Jalal v. Emperor, AIR 1930 Lah 193(1)

Jaswant Singh v. State of Punjab,( 2010) 1 Cr L J 41(SC)

Jayanti Rani Panda v. State of W.B. and another, 1984 Cr LJ 1535 (Cal.)

Khalillur Rehman v. State, 1859 Cr LJ

698 Kartic Kundev v. State,1967 Cr
LJ 1411

Krishanlal v. State of Haryana, AIR 1980 SC

1252
M

Madan Gopal Kakkad v. Nawal Dubey, 1992 (3) SCC

204 Mahla Ram v. The Crown, AIR 1924 Lah 669

Muhammad Afzal and another v. The Crown, AIR 1950 Lah.151

Nazir Ahmed v. State of Jammu and Kashmir, 2008 CrLJ 2628 (SC).

Neel Kumar v. State Of Haryana, (2012) 5 SCC 766

Nura v. Rex, AIR 1949 All 710

P

P. Rathinam v. State of Gujarat, 1993(2)SCALE 631

Phul Singh v. State of Haryana, AIR 1980 SC 249

Pratap Mishra v. State of Orissa, AIR 1977 SC 1307

Pramod Mahto v. State of Bihar, AIR 1989 SC 1475

Prem Chand v. State of Haryana, AIR 1989 SC 937

Queen v. Clarence, (1888) 22 QBD 23

Queen Empress V. Haree Mohan Mythee, ILR 1891 Cal 49

R

R. v. Allen, (1989) 9

R. v. Mayers, (1872) 12 Cox 311

R. v. Young, (1878) 14 Cox 114.

R. v. Fletcher, (1859) 8 Cox 131

R. v. Press, (1867) 10 Cox 635

R. v. Baratt, (1873) LR 2 CCR 81

R. v. Ryan, (1846) 2 Cox 115

R. v. Camplin, (1845) 1 Cox 220

R. v. Ryan, (1846) 2 Cox 115.

Rahimbeg and Mahadeo v. State of U.P., AIR 1973 SC 343.

Rajput Bhima Karasan v. The kutch Government, Bhuj, AIR 1950 Kut 9.

Rafiq v. State of UP, 1980 Cri U 1344 (SC).

 Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
Rao Hari Narayan Singh v. State, 1958 Cr L J 563.
Rao Harnarain Singh v. State, AIR 1958 Punj 123
Ranbirarayan Das v. State, 1992 Cr L J 269
Orissa. Ramroop Das v. State, 1993 Cri. LT 1000
(Ori). re, Anthony 1960 Cr LJ 927.

Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562

Sanya alias Sanyasi Challan Seth V. State of Orissa, 1993 CrLJ Ori
2784

Saudagar Singh v. State of Punjab, AIR 1987 SC 1080.

State of A. P. v. Gangula Satya Murthy, AIR 1997 SC

1588.

State Government of NCT of Delhi v. Sunil, 88(2000)DLT 630 (SC)

State of Haryana v. Prem Chand and others, AIR 1990 SC 538

State of Karnataka v. Mahabaleshwar Gourya Naik, AIR 1992 SC

2043.

State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC

658
State of Maharashtra v. Subhash Sitaram Sangare, 2001 Cr L
J 4468.

State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC

207
State of Punjab v. Gurmit Singh, AIR 1996 SC

1393. State of H.P. v. Mango Ram, (2000) 7 SCC

224

State of Rajasthan v. Ram Narain, 1996(2) SCALE 34.

State of Rajasthan v. Madan Singh,2008 CrLJ 1939 (SC).

State of U.P. v. Pappu @yunus and another, AIR 2005 SC

1248 Sudesh Jhaku v. K.C.J, 1998 Cr LJ 2428 (Del.).

Surjan v. State of MP, AIR 2002 SC 476

Surendra Nath v. Emperor, AIR 1933 Cal.

833

Sideshwar Ganguly v. State of W.B, AIR 1958 SC 143

Sheikh Zakir v. State of Bihar, AIR 1983 SC 911.

State of Rajasthan v. Shri Narayan, AIR 1992 SC 2003

Sridher Bindani v. State of Orissa, 1988 Cri. 1022 (O

T

T. Sareetha v. Venkata Subbiah, AIR 1983 AP

356 Tuka Ram V. State of Maharashtra, AIR
1979 SC
185. Tulshidas Kanolkar v. State of Goa, (2003) 8
SCC 590.

Uday v. State of Karnataka, 2003 Cr LJ 1539 .

Vijayan Pillai alias Babu v. State of Kerela, 1989 Cri LJ

NOC 202 (Ker.).

Vishakha v. State of Rajasthan, AIR 1997 SC

3011. Vinod kumar v. State of M.P, 1987 Cr L J

1541.