Suo Moto vs State Of Rajasthan on 1 June, 2005

Rajasthan High Court

Suo Moto vs State Of Rajasthan on 1 June, 2005
Equivalent citations: RLW 2005 (2) Raj 1385, 2005 (4) WLC 163
Author: N Mathur
Bench: N Mathur, M Mohta
JUDGMENT N.N. Mathur, J.

1. A sordid and obnoxious incident of rape on a foreign lady tourist In the intervening night of 11th
and 12th May, 2005 reported In the regional Newspapers evoked the judicial conscience to take suo
moto cognizance, considering that the Constitutional Courts vested with the powers under Article
226 of the Constitution of India, can no more be a silent spectator in the matter of violent crime
against women and wait for its turn for dispensation of justice as provided under the relevant
provisions of law.

2. In order to combat the increasing crime against women and to ensure protection and preservation
of their human rights, - the Criminal Justice System needs to be addressed from the point of view of
systematic Victim Support Service. There is need to promote proactive role of police as well as the
trial Courts. Thus, In order to expedite the investigation, to provide protection to the victim,
ensuring production of material witnesses during trial without delay, expeditious conclusion of the
trial and payment of compensation to the victim, after noticing the incident, by order dated
13.5.2005, we ordered as follows:

"2. The rape is serious crime whether it is of a foreign tourist or any other woman. However, it
leaves a question mark on the safety of the foreign tourist in the City of Jodhpur. It is likely to create
panic amongst the tourists visiting Jodhpur and the other parts-of the country.

3. In the peculiar facts and circumstances of the case, we consider it appropriate to take cognizance
of the Incident and direct as follows:-

i) The Registry is directed to register a Suo Moto petition under the label of "Public Interest
Litigation".

ii) The State of Rajasthan through Secretary Department of Home, the Director, Tourism and
Superintendent of Police (City) Jodhpur be impleaded as party respondents.

iii) A notice be issued to the said respondents returnable within a period of one week.

4. By ad interim order, further directions are given as follows:

a) The Superintendent of Police, City Jodhpur is directed to ensure that the Investigation of the case
is concluded at the earliest.

b) All the agencies concerned with the investigation, including Director F.S.L. are directed to
co-operate with the investigation. F.S.L. Report must reach on or before 16.5.2005.

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 Suo Moto vs State Of Rajasthan on 1 June, 2005

c) In event of filing of charge-sheet, the learned Sessions Judge Is directed to ensure that the trial of
the case is concluded expeditiously as far as possible within a period of one month from the date of
filing of charge-sheet.

d) The Superintendent of Police, City Jodhpur is directed to ensure the safety of the victim.

e) The State of Rajasthan is directed to bear all the expenses of the victim for her overstay on
account of the, incident. She will be paid lodging and boarding expenses for visiting Jodhpur for
Investigation or trial in connection with aforesaid Incident.

f) The question with respect to the payment of compensation shall be decided after hearing counsel
for the State on the next date of hearing-

g) The Principal Secretary, Department of Home, State of Rajasthan Is directed to ensure the
compliance of the order.

h) A copy of the order be sent to the Principal Secretary, Department of Home, State of -Rajasthan
today itself by fax.

i) A copy of the order be also served on the victim." SPEEDY & FAIR-INVESTIGATION AND TRIAL
:

3. Conducting a fair trial for those, who are accused of criminal offence, Is the cardinal stone of
democracy. Conducting the speedy and fair trial is beneficial both to the accused as well as to the
Society, which Includes the victim. The right to speedy trial of criminal offence has been recognized,
implicit in the broad sweep and content of Article 21". In Kartar Singh v. State of Punjab, (1994) 3
SCC 569 the Apex Court has observed:

"The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to
life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins
with the actual restraint imposed by arrest and consequent incarceration and continues at all stages,
namely, the stage of investigation, Inquiry, trial appeal and revision so that any possible prejudice
that may result from impermissible and avoidable delay from the time of the commission of the
offence till it consummates Into a finality, can be averred".

4. Mallimath Committee has also observed with respect to speedy Investigation and trial in para
16.6.2 as follows:

"16.6.2 The Committee therefore recommends that so far as offences of rape and other sexual
offences against women are concerned, a suitable provision should be made requiring the
Investigation agency to complete- the investigation within the prescribed time and for the court to
dispose of such cases on priority basis within a period of four months."

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 Suo Moto vs State Of Rajasthan on 1 June, 2005

5. In the Instant case, we record our appreciation for the Rajasthan Police for the prompt action.
The accused persons were nabbed without delay and then the investigation was conducted under the
supervision of the senior police officers In a scientific manner. The police completed the
investigation and laid the charge-sheet within the record time of 36 hours. The learned Magistrate
taking cognizance of the offence, acted promptly and committed the case for trial to the Court of
Sessions. The learned Additional Sessions Judge (Fast Track) proceeded with the trial expeditiously
In accordance with the procedure provided under the Code of Criminal Procedure. The accused
persons were represented by competent lawyers. The learned Judge while giving full opportunity to
defend the accused persons, has taken care that the process is not abused to delay the trial. As per
the report, while the police completed the investigation within 36 hours, the trial concluded within
twenty days. To give more details, the incident is of intervening night of 11th and 12th May, 2005;
the suo moto action was taken by this court on 13.5.05; the charge-sheet was filed on the same day;
the charges were framed after hearing learned counsel for the accused on 16.5.05; the statement of
the prosecutrix was recorded on 17.5.05; the cross examination by the defence counsel continued
upto 18.5.05; the prosecution examined 21 witnesses and produced documents including memo of
identification parade, the medical evidence and the F.S.L. Report.

6. As per the compliance report submitted today by the learned Sessions Judge, Jodhpur, the
accused persons viz., Shankerlal and Rakesh have been convicted by the judgment of the learned
Additional Sessions Judge (Fast Track) for the offences under Sections 376(2)(g), 3651 366 and 394
IPC. Both the accused persons have been sentenced to imprisonment for life for the offence under
Section 376(2)(g) IPC. They have also been sentenced for the allied offences.

ISSUES :

7. Though the trial is concluded, some of the important questions pertaining to such incident i.e.
Right of victim of expeditious and scientific investigation, protection and confidence building
process of a victim in rape case, victim's right of speedy trial and payment of compensation, are left
out. Before we proceed to deal with the relevant issues, it will be apposite to state the factual matrix
of the Incident.

FACTUAL MATRIX :

8. Jodhpur, the heritage City of Rajasthan, otherwise considered a calm City with low crime rate,
was shocked with the news of an auto rickshaw Driver and his accomplice allegedly raped German
tourist. As per the Information, the victim, a German lady aged 47 years arrived In the City of
Jodhpur on Wednesday i.e. 11.5.2005. She checked-in a Guest House in the walled city area. In the
evening, she went to a hotel viz., Taj Hari for taking dinner. After taking dinner, she hired an auto-
rickshaw from outside the said hotel for the Guest House. The driver drove the auto-rickshaw In the
opposite direction on Jodhpur-Pali highway. The driver was accompanied by his associate sitting on
the corner of the driving seat. It is alleged that they took her to a deserted place near dry bed of
Jojari River. Both of them alleged to have robbed and committed rape on her. The screams of the
victim attracted the nearby villagers of 'Meghvalon-ki Dhani' The villagers rescued the lady and
Informed the police. Police registered the case for offence Under Section 376 IPC and allied

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offences. The accused persons were nabbed promptly. Recoveries of incriminating articles were
made. The test Identification parade was arranged. Statement of the prosecutrix was recorded
Under Section 164 Cr.P.C. on 13.5.2005.

NON-DISCLOSURE OF THE NAME OF VICTIM :

9. We do not propose to mention the name of the victim in view of the prohibition provided in
Section 228A IPC. Section-228A IPC reads as follows:

"228-A. Disclosure of identity of the victim of certain offence, etc.-(1) Whoever prints or publishes
the name or any matter which may make known the identity of any person against whom an offence
under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D is alleged or found
to have been committed (hereafter in this section referred to as the victim) shall be published with
Imprisonment of either description for a term which may extend to two years and shall also be liable
to fine.

2) Nothing In Sub-section (1) extends to any printing or publication of the name or any matter
which may make known the identity of the victim if such printing or publication is --

a) by or under the order in writing of the officer in charge of the police station or the police officer
making the investigation Into such offence acting in good faith for the purposes of such
investigation: or

b) by, or with the authorization in writing of the victim; or

c) where the victim Is dead or minor or of unsound mind, by or with the authorization In writing of,
the next of kin of the victim Provided that no such authorization shall be given by the next of kin to
anybody other than the chairman or the secretary, by whatever name called, of any recognized
welfare Institution or organization.

Explanation.- For the purposes of this sub-section, "recognized welfare Institution or organization",
means a social welfare Institution or organization recognized In this behalf by the Central or State
Government.

3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect
to an offence referred to in Sub-section (1) without the previous permission of such court shall be
punished with Imprisonment of either description for a term which may extend to two years and
shall also be liable to fine.

Explanation.- The printing or publication of the judgment of any High Court or the Supreme Court
does not amount to an offence within the meaning of this section.

10. Thus, Section 228A IPC makes disclosure of identity of victim of offences punishable Under
Sections 376, 376A, 376B, 376C and 376D. The said provision has been enacted keeping in view the

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social object of preventing the social victimization or ostracism of the victim of sexual offence. Thus,
we have chosen to describe the victim as "foreign tourist lady".

PROVISIONS PERTAINING TO OFFENCE OF RAPE :

11. There is recognition of rights of women starting with United Nation Charter universal
declaration of human rights to Convention on Elimination of all forms of Discriminations against
Women. The Indian Constitution recognizes gender balance in its equality jurisprudence under
Articles 14, 15i 16i 19 & 21. Thus, in India gender balance is recognised as basic structure of the
Constitution. The Apex Court extending the ambit of Article 21 held that mere existence is not the
right to live, it Is a right to live with dignity. It gives the women right to health, right to profession,
right to privacy, protection against sexual harassment, right to live with human dignity as part of her
right to life. There are awareness movements, statutory bodies to protect the women like National
Commission for Women's rights.

12. The crime of rape can be regarded as the highest torture Inflicted upon virginity, youth,
motherhood and womanhood Itself. It causes not only physical torture to the body of the woman but
at adversely affect her mental, psychological and emotional sensitivity. Therefore, rape is most
hatred crime against the very basic human right and violative of the woman's most fundamental
right, namely the right to life. It is less a sexual offence than an act of aggression aimed at degrading
and humiliating women. Such cases are required to be handled by the courts with utmost sensitivity,
high responsibility.

13. "Rape" as per the dictionary meaning is the act of physically forcing a woman to have sexual
intercourse: an act of sexual intercourse that is forced upon a woman against her will. There are two
essential ingredients of rape under Section 375 IPC. Firstly sexual intercourse by a man with a
woman and secondly the sexual intercourse must be under circumstances failing under any of the
six clauses in the section. Firstly against her will; Secondly without her consent; Thirdly when her
consent Is obtained by putting fear of death in her; Fourthly when the consent given under the belief
that another man is her lawfully married husband; Fifthly when consent given by the reason of
unsoundness of mind or intoxication etc. and Sixthly with or without her consent, when she is under
16 years of age. Section 376 IPC is the punishing provision for offence of rape. Sections 375 and 376
IPC have been substantially amended by the Criminal Law (Amendment) Act, 1983. By the said Act,
new Sections viz; Sections 376A, 376B, 376C and 376D IPC have been introduced. Section 376A
punishes sexual intercourse with wife without her consent by a judicially separated husband.
Section 376B punishes sexual intercourse by a public servant with woman in his custody. Section
376C IPC punishes sexual intercourse by Superintendent of Jail, Remand Home etc. with Inmates
In such institutions and Section 376D punishes sexual intercourse by any member of the
management or staff of a hospital with any woman In that hospital. These new Sections were
introduced with a view to stop sexual abuses of women in custody, care and control by various
categories of persons which though not amounting to rape were nevertheless considered highly
reprehensible. The new amended Section 376 IPC now prescribes a minimum punishment of seven
years' imprisonment for the offence of rape. For combating the vice of custodial rape, rape on
pregnant woman, rape on girls under 12 and gang rape, a minimum punishment of 10 years'

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