Since the dawn of humanity, particularly after Adam ate the apple, man's fascination for woman has been unbounded, boundless. It has found its manifestation in the adoration as well abuse of woman. It is unfortunate that respect for womanhood in our country is on the decline and cases of molestation, rape, etc. are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve teasing, from molestation to rape. Besides, dowry and dowry related murders and suicides are such evils in the society which are putting the society to great shame. As the love for consumerism is increasing, so is greed for dowry. When in-laws fail to get the desired articles, they either murder her or induce her to commit suicide by their persistent cruelty, harassment, taunts, insult and humiliating behaviour. This Chapter is devoted to the 'crime against woman' and we shall discuss each of the offences one by one.
The word 'dowry' has nowhere been defined in the Indian Penal Code. According to the Webster Dictionary, it means "money, goods or estate that a woman brings to her husband at marriage".
According to section 2 of the Dowry Prohibition Act, 1961, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Thus, there are three occasions related to dowry:
(i) before the marriage;
(ii) at the time of marriage; and
(iii) "at the time" after the marriage.
There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the meaning of 'dowry'; Satvir Singh v. State of Punjab, MANU/SC/0588/2001 : (2001) 8 SCC 633.
It is a very pathetic paradox of our contemporary times that on the one hand, marriage is a very cherished and fond dream of a man and his family and yet on the other, the most cruel and heinous crime, brutal death of a bride within the four walls of the matrimonial home culminates from it. This has become such a menacing reality that Parliament had to make dowry related death as crime. In view of this, a new section 304B has been inserted in the Indian Penal Code in the year 1986. Section 304B, I.P.C. reads:
(1) Where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--
For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
In the case of death under the above circumstances, the husband and husband's relatives, shall be presumed to have caused a 'dowry death' and shall be liable for the offence unless it is proved otherwise. That is to say, the burden of proof shifts from the prosecution to the accused, unlike other offences where the accused is presumed to be innocent.
Sub-section (2) prescribes a minimum sentence of seven years of imprisonment that may extend to imprisonment for life in the case of dowry death.
It should be noted that, the 'dowry' mentioned in section 304B could be any property or valuable security given or agreed to be given in connection with the marriage.
In Taiyab Khan v. State of Bihar (Now Jharkhand), 1 (2006) CCR 23 (SC) the Supreme Court laid down the ingredients of section 304B, I.P.C. in the following manner:
The main ingredients of section 304B, I.P.C. are:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death should have occurred within seven years of her marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment should be for or in connection with demand for dowry;
(v) Cruelty or harassment should have been meted out to the woman soon before her death.
To prove a 'dowry death' prosecution is to prove the following:
(a) there was an unnatural death of a woman;
(b) that woman had been married within seven years preceding her aforesaid unnatural death;
(c) soon before her death she was subjected to cruelty or harassment--
(i) such cruelty or harassment had been caused to her by her husband or husband's other relatives;
(ii) that the cruelty or harassment was for or in connection with any demand for dowry.
In all dowry cases, the standard of appreciation of evidence has to be in the light of the provisions contained in section 113A of the Evidence Act.
It is not enough that harassment or cruelty was caused to the woman with demand for dowry at some time, if section 304B is to be invoked. But it should have happened 'soon before her death'. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within few days or even few weeks before it. But the proximity to her death is the pivot indicated by the expression. The legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasise the idea that her death should, in all probabilities, have been an aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between the death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate causes of her death. It is, hence, for the court to decide, on the facts and circumstances of each case, whether the said interval in the particular case was sufficient to snuff its cord from the concept 'soon before her death'; Satvir Singh v. State of Punjab, MANU/SC/0588/2001 : (2001) 8 SCC 633: AIR 2001 SC 2828.
It has been stated earlier that since harassment, torture and violence on a married woman occur within the four walls of the matrimonial home, the prosecution case generally depends on circumstantial evidence, and since it is difficult to establish the crime by circumstantial evidence, a rule of presumption has been enacted in Indian Evidence Act vide section 113B, Evidence Act.
Section 304B(1) in the later part mandates the drawing of presumptions that the husband or relatives of the husband of the victim girl have caused her death and this presumption of dowry death corresponds to the presumption as to dowry death envisaged in section 113B of the Evidence Act.
Both section 113B of Evidence Act and section 304B of the I.P.C., have used the expression "shall be presumed".
"Shall presumed" in section 4 of the Evidence Act, means that whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disapproved.
However, the fact of the matter is that presumption under section 113B, Evidence Act reserves that rule that burden of proof is on the prosecution; Boora Singh v. State of Uttar Pradesh, 1992 Cr LJ 2294.
In Kans Raj v. State of Punjab, MANU/SC/0296/2000 : AIR 2000 SC 2324 the fact of the case was, Sunita Kumari married on 9-7-1985 was found dead on 23-10-1988 at the residence of her in-laws at Batala in Punjab. The death was found to have occurred not under ordinary circumstances but was the result of asphyxia. On post-mortem it was found that the deceased had injuries "her person including a ligature mark, 20cm. x 2cm. on the front, right and left side neck, reddish-brown in colour starting from left side of the neck, 2cm., below the left angle of the jaw passing just above the thyroid cartilage and going up to a point 2cm. below the right angle of the jaw." The parents of the deceased were allegedly not informed about her death.
The appellant (Kans Raj) father of the deceased filed complaint under sections 302 and 304B, I.P.C., against the deceased's in-laws.
Issue:
Whether the respondents can be convicted under section 304B, I.P.C.?
Decision:
The apex Court observed and held that:
(i) The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that 'soon before her death' she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under section 304B.
(ii) It is contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite to the expression "soon after" as used and understood in section 114, illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates a reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread overa period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time.
(iii) The expression "otherwise than under normal circumstances" would mean death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury.
It was held that, under the circumstances in the present case, Rakesh Kumar (husband of the deceased) should be convicted under section 304B, I.P.C.
In Rajbir v. State of Haryana, MANU/SC/0967/2010 : AIR 2011 SC 568, this case where accused husband found guilty of murdering his pregnant wife for demanding cash amount barely six months after their marriage. Awarded life sentence under section 304B, IPC. High Court has reduced sentence to 10 years rigorous imprisonment. When it is borne out from injuries in evidence of doctor that deceased's head was repeatedly struck and she was also throttled and its case of barbaric and brutal murder. Court directs all trial Courts to ordinarily add S.302 to charge of S.304B so that death sentence can be imposed in heinous and barbaric crimes against women.
Vide section 498A, I.P.C. which was inserted in the Code in 1983 as new 'Chapter XXA', wherein a new offence, an offence of cruelty to a married woman by her husband and in-laws has been created. This offence is non-bailable and cognizable only if information is lodged with the Commissioner of Police by the victim or her relative or by a public servant authorized in this behalf.
The object of adding this section is to punish the husband and relatives of the husband who torture and harass a woman with a view to coerce her or any person related to her to meet any unlawful demand or drive the woman to commit suicide.
Section 498A reads as follows:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--
For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any propertyor valuable security or is on account of failure by her or any person related to her to meet such demand.
The word 'Cruelty' within the meaning of section 498A, I.P.C. has been explained in the Explanation to this section, which consists two clauses viz., clauses (a) and (b).
The word 'cruelty' means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause a grave injury or danger to life, limb or mental or physical health of the woman. Cruelty also means harassment of the woman with a view of coercing her/or any person related to her to meet any unlawful demand for any property or vehicle.1
In Sarla Prabhakar v. State of Maharashtra, 1990 Cr LJ 407 it was observed that, to attract section 498A, I.P.C., it must be established that the cruelty or harassment to wife was to force her to cause grave bodily injury to herself or to commit suicide, or the harassment was to compel her to fulfill illegal demand for dowry. It is not every type of harassment or cruelty that would attract section 498A.
The sole constituent of an offence under section 498A, I.P.C., is cruelty which in view of clause (a) to Explanation to this section, means wilful conduct. The word wilful contemplates obstinate and deliberate behaviour on the part of the offender for it to amount to cruelty. Thus mens rea is an essential ingredient of the offence.
Section 498A, I.P.C. has the following essential ingredients:
(a) that the victim was a married lady (she may also be widow),
(b) that she has been subjected to cruelty by her husband or the relative of her husband,
(c) that such cruelty consisted of either--
(i) harassment of woman with a view to coerce her for meeting a demand for dowry; or
(ii) a wilful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or heath;
(iii) that such injury aforesaid may be physical or mental.
To bring home an offence under section 498A, I.P.C., the prosecution is to prove that--
(i) a woman has been subjected to cruelty as contemplated in clause (a) or clause (b) to Explanation of section 498A;
(ii) that the woman is or was married;
(iii) that the cruelty has been practiced by her husband or his relatives.
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1. Sec Explanation to section 498A, I.P.C.
Probably, expression "wilful" is not capable of any precise definition. It may be from crude physical injury or harm to subtle device of causing cruelty or harassment to married woman. What amounts to 'wilful conduct' causing cruelty will differ from case to case. A 'wilful conduct' cannot be an accidental happening or an inadvertent act. A wilful conduct implies an international act.
Where husband abused and beat his wife, forced her to have a common kitchen with a Harijan family, accused her of adultery and pressurized her to agree for an abortion, and such other acts. It amounted to a wilful conduct of cruelty towards wife; Rishi Kumar v. State of Haryana, 1997 Cr LJ 196.
Under clause (b) of Explanation to section 498A, I.P.C., it is required that there should be a nexus between harassment and unlawful demand for dowry. The word "unlawful demand for any property or valuable security" mean demand of dowry. The clause lays down that when harassment of a married woman takes place by her husband or any of his relatives with a view to get fulfilled any unlawful demand of dowry, it amounts to cruelty. The term 'harassment' is of a wide amplitude. 'Harassment' according to Webster Dictionary is "to subject someone to continuous attacks questions, demands or as other unpleasantness". However, harassment simpliciter is not covered under this clause.
In Subhash v. State of Haryana, MANU/SC/1064/2010 : AIR 2011 SC 349, this case where appellant involved in abetment of suicide and harassment for dowry. Evidence of father and brother of victim shows factum of cruelty and behaviour of accused towards deceased has built up during evidence recorded in Court. Oral dying declaration made by victim to them omitted in statements made under section 161, Criminal P.C. Declaration recorded by Magistrate without making efforts to find out as to whether Magistrate of area in which hospital lay was available or not. Endorsement of doctor that deceased was fit to make statement taken by Magistrate after recording dying declaration. Conduct of this witness and manner in which he recorded declaration. Supreme Court of the opinion that the present case is one of no evidence and the possibility that the deceased had been burnt in an accident cannot be ruled out. Order reversed.
Section 304B, I.P.C. and section 498A, I.P.C. have been added in the Code to punish dowry related crimes. The provisions are not mutually exclusive. However, the scope of the two sections are different. For example,--
1. Under section 304B, I.P.C. it is the dowry death that is punishable and such death should have occurred within a period of seven years of the marriage; whereas under section 498A, I.P.C. cruelty by husband or relative of husband is punishable and there is no period of limitation of seven years provided for prosecution in such cases. The husband or his relative would be liable for subjecting the woman to 'cruelty' any time after the marriage.
2. Under section 498A, I.P.C. cruelty as such is punishable; but cruelty or harassment of a married woman when it results in death of the woman would attract section 304B, I.P.C.
3. Under section 304B, I.P.C. punishment may extend upto imprisonment of life with a minimum of seven years of imprisonment; whereas under section 498A, I.P.C. punishment may extend upto three years of imprisonment and fine only. 'Cruelty' is a common essential to both the offences and that has to be proved before a person is convicted.
4. The Explanation clause to section 498A, I.P.C. gives the meaning of 'cruelty' but there is no such explanation about the meaning of 'cruelty' under section 304B.
5. Having regard to the common background to these offences the meaning of cruelty or harassment under section 304B will be the same as given in the Explanation clause to section 498A. Thus the offence being of the common background a person charged and acquitted under section 304B, I.P.C. can be convicted under section 498A, I.P.C. for a lesser offence without charge being there, if such a case is made out. However, to avoid technical defect it is proper to frame charges under both sections so that convictions would be made under both. Separate sentences need not be awarded under section 498A, I.P.C. and under section 304B, I.P.C; Pawan Kumar v. State of Haryana, MANU/SC/0104/1998 : (1998) 3 SCC 309.
Abetment to commit suicide is dealt with by section 306, I.P.C. When this suicide is preceded by cruelty contemplated in section 498A and the victim is married within a period of seven years preceding the marriage, in view of section 113A, Evidence Act, a presumption may be drawn that the husband of the victim girl or his relatives abetted the suicide. The basic difference that lies between the two sections is that of 'intention'. Under section 498A, I.P.C., cruelty committed by the husband or his relatives drag the woman to commit suicide, while section 306, I.P.C., suicide is abetted and intended; Girja Shankar v. State of Madhya Pradesh, 1989 Cr LJ 242.
What does not amount to cruelty is nowhere provided under the code but various courts in their decisions provided that, the following instances, inter se, do not constitute cruelty:
It has been held that:
(i) outburst of temper without rancour; Aloka Dey v. Mrinal Kauti Dey, MANU/WB/0088/1973 : AIR 1973 Cal 393.
(ii) merely writing love letters to a third party; Pranab Biswas v. Mrinmayee Dassi, MANU/WB/0038/1976 : AIR 1976 Cal 156.
(iii) non-payment of interim maintenance; Ginden v. Balelal, MANU/MP/0024/1976 : AIR 1976 MP 83.
(iv) of desertion per se; Koushalya Rani v. Vijaya Singh Gehlot, MANU/RH/0072/1973 : AIR 1973 Raj 269.
(v) or mere flirtation; P. v. P., MANU/MH/0212/1983 : AIR 1983 Bom 8.
does not constitute cruelty.
In Pawan Kumar v. State of Haryana, MANU/SC/0104/1998 : (1998) 3 SCC 309 the fact of the case was, Urmil (deceased) and Pawan Kumar (Appellant 1) were married on 29-5-1985. Pawan Kumar was working at Lucknow and had later shifted to Sonepat (Haryana). Within a few days of the marriage Urmil returned home and complained regarding demands of dowry for a refrigerator, scooter etc. by the appellants. These demands were reiterated on subsequent visits. On account of non-fulfilment of these demands, the deceased was allegedly taunted and harassed. These alleged actions ultimately contributed towards a suicidal death. She died of burn injuries on 18-5-1987.
Issue:
Whether Pawan Kumar can be convicted under sections 498A and 304B of I.P.C.?
Decision:
The; apex Court observed and held that, section 304B, I.P.C., makes "demand for dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. When persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of section 304B, I.P.C. It is not always necessary that there be any agreement for dowry.
Cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of sections 304B and 498A, I.P.C. Explanation (a) to section 498A itself refers to both mental and physical cruelty. In view of Explanation (a) the argument is, before it constitutes to be a cruelty there has to be will conduct. Again wilful conduct means, conduct wilfully done.
In the present case, on account of not satisfying the demand of the aforesaid goods, right from the next day, she was repeatedly taunted, maltreated and mentally tortured by being called ugly etc. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calls her ugly, there cannot be greater mental torture, harassment or cruelty for any bride. There was a quarrel a day before her death. This by itself, would constitute to be a wilful act to be a cruelty both within the meaning of section 498A and section 304B, I.P.C.
In Shanti v. State of Haryana, MANU/SC/0507/1991 : AIR 1991 SC 1226 the fact of the case was that, Smt. Kailash (deceased) was married to Satpal, who was serving in the Army. Shanti is the mother of Satpal. After marriage the deceased was living in her matrimonial home with Shanti. It is alleged that Shanti harassed the deceased all the while after the marriage for not bringing scooter and television as part of the dowry and she was treated cruelly. The marriage of one Munni, (deceased relative) was fixed and her brother went to Mundaliya village twice for bringing the deceased but the accused only taunted him and sent him away without sending the deceased. Ultimately, the father himself went to the home of his daughter, the deceased but she misbehaved with him saying that if he was fond of his daughter he ought to have arranged scooter and television as part of the dowry and he was insulted and pushed out of the house. On April 26, 1988 at about 11 p.m. the father came to know that the deceased had been murdered and was cremated by the two ladies with the help of another three persons.
Issue:
Whether Shanti can be convicted under sections 498A and 304B,
I.P.C.?
Decision:
The apex Court observed and held that:
(i) A careful analysis of section 304B shows that this section has the following essentials:
"(1) the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(2) such death should have occurred within seven years of her marriage;
(3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with demand for dowry."
(ii) Sections 304B and 498A cannot be held to be mutually exclusive. These provisions deal with the two distinct offences. It is true that "cruelty" is a common essential to both the sections and that has? to be proved. The Explanation to section 498A gives the meaning of "cruelty". In section 304B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences we have to take that the meaning of "cruelty or harassment" will be the same as we find in the explanation to section 498A under which "cruelty" by itself amounts to an offence and is punishable. Under section 304B as already noted, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in section 498A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under section 304B can be convicted under section 498A without charge being there, if such a case is made out. But from the point of view of practice procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under section 498A in view of the substantive sentence being awarded for the major offence under section 304B.
(iii) Therefore, sentence of seven years rigorous imprisonment was awarded under section 304B, I.P.C.
In Satvir Singh v. State of Punjab, MANU/SC/0588/2001 : (2001) 8 SCC 633 the fact was that a young woman, mother of two kids, ran into the train to end her life. She was driven to that action on account of the cruel treatment suffered by her at her nuptial home. Her husband and father-in-law and mother-in-law were convicted by the session court under sections 116, 306 and 498A of I.P.C. But, the High Court made an alteration by substituting section 306 with section 304B of I.P.C. read with section 116 of I.P.C.
Issue:
Whether the appellants can be convicted under section 304B or section 306 or this a case of mere 'cruelty'?
Decision:
The apex Court observed and held that:
(i) It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt to which alone will become an offence is suicide. The person who attempts to commit suicide is guilty of the offence under section 309, I.P.C. whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that suicide should necessarily have been committed. It is possible to abet the commission of suicide. But nobody would abet a mere attempt to commit suicide. It would be preposterous if law could afford to penalize an abetment to the offence of mere attempt to commit suicide.
(ii) Learned Sessions Judge went wrong in convicting the appellants under section 116 linked with section 306, I.P.C. The former is "abetment of offence punishable with imprisonment - if offence be not committed". But the crux of the offence under section 306 itself is abetment. In other words, if there is no abetment there is no question of the offence under section 306 coming into play. It is inconceivable to have abetment of an abetment. Hence there cannot be an offence under section 116 read with section 306 of I.P.C.
(iii) The essential components of section 304B are:
(i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage, (ii) Soon before her heath she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under section 304B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence.
(iv) Therefore appellants cannot be convicted under section 116, I.P.C. either by linking it with section 306 or section 304B. But, the appellants are liable to be convicted under section 498A.
Generally speaking, sexual intercourse by a man with a woman without her consent is rape. The word 'rape' is derived from a latin term 'rapio', which meansCritically examine the law laid down by Satvir Singh caseto seize. Therefore, rape means sexual intercourse with a woman without her consent by force, fear or fraud. In other words, rape is a violence of the private person of a woman. It is an outrage by all canons; Phul Singh v. State of Haryana, MANU/SC/0203/1979 : AIR 1980 SC 249.
The Explanation to the section states that "penetration is sufficient to constitute sexual intercourse, necessary for the offence of rape". The depth of penetration is immaterial as far as the offence under section 376 is concerned; G. Misra v. State of Orissa, AIR 1975 Ori 1978.
It is not necessary to prove the completion of sexual intercourse by the emission of seed; intercourse is deemed complete upon proof of penetration only. The slightest degree of penetration is enough. If penetration cannot be satisfactorily proved, the defendant may be convicted of attempted rape; if the intent is not proved, he may be convicted of indecent assault.1
Section 375, I.P.C. defines rape in the following words:
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:--
|
Firstly.-- |
Against her will. |
|
Secondly.-- |
Without her consent. |
|
Thirdly-- |
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. |
|
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, she 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.
It is clear that 'rape' is forcible ravishment of a woman, and the essence of the crime consists in the act being done against the will or without the consent of the woman. "A rapist not only violates the victim's personal integrity but leaves indelible marks on the very soul of the helpless female"; State of Maharashtra v. Rajendra Jawanmal Gandhi, MANU/SC/1335/1997 : (1997) 8 SCC 386. In Krishna Lal v. State of Haryana, MANU/SC/0147/1980 : (1980) 3 SCC 159, Krishna Iyer, J. observed: "A socially sensitized judge
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1. Halsbury's Law of England.
is a better statutory armour against gender outrage than long clauses of a complex section with all the protections written into it".
It may be noted that if the woman is under 16 years of age, it is immaterial that the act be done with her consent or even at the invitation of woman herself, for the policy of the law is to protect children of such immature age against sexual intercourse. This is also known as 'statutory rape'.
A 'man' is defined by section 10 of the Code as a male human being of any age. Thus, a boy above 12 years of age is capable of committing rape under this section, whereas a boy below 12 but above 7 years of age enjoys a qualified immunity.
Following are the essential ingredients of section 375, I.P.C.:
(1) There must be sexual intercourse with a woman by a man;
(2) Such a sexual intercourse should be under any of the following circumstances:
(a) against her will;
(b) without her consent;
(c) with consent obtained under fear of death or hurt;
(d) with consent under misconception of fact that the man is her husband;
(e) consent given by reason of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance;
(f) with a woman under 16 years of age, with or without consent
In State of U.P. v. Chhoteylal, MANU/SC/0053/2011 : AIR 2011 SC 697, this case victim had been kidnapped by two adult males, one of them wielded fire-arm and threatened her and she was taken away from her village. Any alarm at unknown place might have endangered her life. Circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with accused. Absence of injury on external or internal part of body of prosecutrix. Prosecutrix was recovered almost after three weeks and sign of forcible intercourse would not persist for that long period. It is wrong to assume that in all cases of intercourse with women against will or without consent, there would be some injury on external or internal part of victim. Evidence of prosecutrix is similar to evidence of injured complainant or witness. Her brother did not lodge report immediately as honour of family was involved. Expression "against her will" and without her consent occurring in clause first and second of section 375. The expression 'against her will' would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression 'without her consent' would comprehend an act of reason accompanies by deliberation. Order reversed.
The essence of rape is absence of consent. Consent means an intelligent positive concurrence of the 'will' of the woman. The expression 'without herconsent' implies that the woman is incapable to knowing the nature of the act and thus legally unable to gave rational consent or being aware of its nature. Section 90, I.P.C. states as to what does not amount to consent under the Code. Section 90, I.P.C. reads:
A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Clause (3) to section 375 stipulates consent obtained under fear by putting the woman or any person in whom she is interested, in fear of death or hurt is not consent and hence, the act would amount to rape. In State of Maharashtra v. Prakash, MANU/SC/0238/1992 : AIR 1992 SC 1275, the victim was a village girl who had gone to her parent's village to attend a fair. The first accused was Prakash, a police constable. He was deputed for bandobust duty in that village. The second accused was a businessman. Both the accused had called out the prosecutrix from her parent's house, took her to the house of the second accused, threatened her that her husband would be placed in custody if she did not sign some papers. Thereafter, both of them committed rape on her. The Supreme Court held that this case would fall under clause 3 of section 375, I.P.C. The accused were convicted to three years rigorous imprisonment.
Where a blind helpless young 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; Rajinder v. State of Himachal Pradesh, 2003 Cr LJ NOC 143 (HP).
Consent obtained by misrepresentation is no consent. Where the prosecutrix, being above 16 years of age, became a consenting party on promise of marriage and fully knowing the nature and implications of the relationship and did not reveal it to anybody till she became pregnant, it was held that the conviction of the accused for the offence of rape was not proper. Her consent was the expression of a genuine desire and not the result of any misrepresentation; Uday v. State of Karnataka, MANU/SC/0162/2003 : AIR 2003 SC 1639.
Consent obtained by fraud is also no consent. Where a woman gives her consent on the basis of a false promise of marriage by the man, then her consent is no consent under law; Addepalli Setti Babu v. State of Andhra Pradesh, 1994 Cr LJ 1420 (AP). Clauses (4) and (5) to section 375, I.P.C. deal with this aspect of rape.
In Kamalanantha v. State of Tamil Nadu, MANU/SC/0259/2005 : AIR 2005 SC 2132 the accused was head of Ashram and alleged to have raped 13 girl inmates of Ashram. It was contended by him that some of the prosecutrixs had, consented, therefore, his case does not come within the purview of section 375, I.P.C.
It was held by the Supreme Court that, it is in the evidence of the prosecutrix, that the consent of many of the prosecutrix had been obtained by deceitful means that if they had sex with the accused they would be cured of asthma or that if they had sex with the accused, it would be service to God or some girls had been raped under threat of dire consequences. The accused had dominion control over the Ashram girls and most of them were orphans and had no alternative place to go. Therefore, it clearly falls within the thirdly clause of section 375, I.P.C. Furthermore, if the consent is obtained by deceitful means or under threat of death or hurt, it is no consent at all and it is without her consent.
Sexual intercourse with a woman under 16 years of age will amount to rape, whether it is done with or without consent.
In Harpal Singh v. State of Himachal Pradesh, MANU/SC/0130/1980 : AIR 1981 SC 361 the contention of the defence was that the prosecutrix was used to sexual intercourse and no injury was detected on the private parts of the girl. It was contended that it was a case of consent. However, the Supreme Court held that once it was proved that the girl was below 16 years of age, the question of consent becomes wholly irrelevant. In this case, the Supreme Court held that the entry in the admission register of the school in which the girl was a student and certified copy of the entry of the birth register showed that she was 15 years of age at the time of occurrence. These documents were admissible under section 35, Indian Evidence Act as it was made by the concerned official in the discharge of his official duties.
In Jagjit Singh v. State of Punjab, MANU/SC/0044/2005 : AIR 2005 SC 913 it was observed that, no charges were framed against the appellant under section 376, I.P.C. Nor was there any evidence suggesting that the appellant had committed the offence of rape. In these circumstances, it was not possible to sustain the finding of the Trial Court that the appellant was guilty of having committed the offence of rape.
The question as to whether an act amounts to rape or not, is not a matter of medical opinion, but a question of law. In Madan Gopal Kakkard v. Naval Dubey, MANU/SC/0509/1992 : (1992) 3 SCC 204 the medical officer on examination of the victim after five days, found an abrasion on the medial side of labia majora and redness around the labia minora, but the hymen was intact admitting tip of a little finger. The medical officer opined that there was absence of signs of full penetration and hence, there was an attempt to rape. The Supreme Court held that the opinion of the medical officer that there was an attempt to rape is not conclusive and held that when there was partial penetration, it is in the legal sense sufficient to constitute rape. In Jagdish Pd. Sharma v. State, 1995 Cr LJ 2501 (Del) the victim was a child about three-and-a-half years. The investigation officer had failed to promptly take steps to get the little girl and the accused medically examined. From the evidence available, it was clear that full sexual intercourse with the child had not taken place. However, there were witnesses, who testified that on hearing the shrieks of the child, they rushed to the place where the incident took place and found the accused lying over a little girl. The child's underwear had been taken off and the accused had also taken off his Pyjama. Under the circumstance, the Delhi High Court convicted the accused for the offence of rape.
Generally speaking, unexplained delay in lodging FIR is fatal to prosecution. When, however, a sexual offence is involved, delay stands explained because in Indian society, it brings a scandal to the family of the prosecutrix and the time is unnecessarily wasted to decide if the scandal should be made public. In Shabir Rashid v. State (Delhi), 1969 Cr LJ 1282 (Del) the victim was alleged to have been raped at a place where large number of persons were present but she had not raised any alarm and FIR was lodged after deliberations and consultations. It was held that all facts suggested the failure of prosecution to bring home the guilt of the accused and he was acquitted.
In Puran Singh v. State of Rajasthan, 1985 Cr LJ 54 (Raj) rape was committed on a minor village virgin in broad day light in open field at about 4 p.m. on June 20, 1980, but FIR was lodged on June 22, 1980 at 8 p.m. The father of the victim being an illiterate rustic villager, the delay is explained.
The courts are expected to use self-restraint while recording the findings which have large representation as far as future of the rape victim is concerned and even under implications on the society as a whole, where the victim of the crime is discouraged, the criminal encouraged and in turn crime gets rewarded. Even in cases where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of 'loose moral character' is permissible to be drawn from the circumstance alone. Even if the prosecutrix has been promiscuous in her behaviour earlier 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; State of Punjab v. Gurmit Singh, MANU/SC/0366/1996 : AIR 1996 SC 1393.
In the case of charge for rape, the onus lies upon the prosecution to prove that the sexual intercourse was without the consent or against the will of the woman. It would not be necessary for the defence to prove that the sexual intercourse was with the consent of the woman. It may be noted that it would be no defence that the woman consented after the act.
A woman who has been raped is not an accomplice. Thus, for a conviction for rape, corroboration is not necessary. If the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of evidence, as a general rule, there is no reason to insist on corroboration except from medical evidence.
in every rape case, the evidence of the rape victim is a very crucial piece of testimony to prove the case against the accused. Now the question arises whether the corroboration is necessary? In State of Punjab v. Gurmit Singh, MANU/SC/0366/1996 : AIR 1996 SC 1393 it was held that, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused when her testimony inspires confidence and is found to be reliable. Seeking corroboration of the statement before relying upon the same, as a rule, amounts to adding insult to injury.
In State of Rajasthan v. Noore Khan, AIR 2000 SC 1812 it was observed that, there is no rule of law that testimony of rape victim cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being criminal charge. However, if the court of facts may find it difficult to accept the version of the prosecutrix on its face value it may search for evidence, direct or circumstantial which would land assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice would do.
In rape cases it has been seen that corroboration of testimony is very difficult. Therefore, if the prosecutrix is believed to be truthful witness, in her deposition, no further corroboration may be insisted. Corroboration is admittedly only a rule of prudence; State of Himachal Pradesh v. Lekh Raj, MANU/SC/0714/1999 : AIR 1999 SC 3916.
"Even if factum of rape is established beyond reasonable doubt, the accused cannot be convicted unless there is reliable and acceptable evidence to come to a conclusion that it was the accused who committed the rape"; Prahlad Singh v. State of Madhya Pradesh, MANU/SC/0848/1997 : AIR 1997 SC 3442. Thus, reliable evidence is needed to establish 'rape'.
Attempt to commit rape is punishable under section 376 read with section 511, I.P.C. In Prem Narayan v. State of Madhya Pradesh, 1989 Cr LJ 707 (MP) when accused caught hold of the prosecutrix at the flour mill of her father and forcibly dragged her by the side of bushes and trees, threw her down on the ground and removed her under garments making her naked; and attempted at penetration; the prosecutrix started bleeding from private parts, the offence of rape or at least attempt to commit rape is proved.
In 1983 a drastic change was brought about in punishment of rape so as to deter people from committing such a heinous crime by inserting section 376 in the Code. Section 376 has been divided into two sub-sections to fix punishment taking into account gravity and special nature of the case in question. Section 376, I.P.C. provides as under:
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be forlife 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:
Provided that 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.
(2) 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's or children's institution" 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.
According to clause (1) of section 376, I.P.C. a person who is convicted of the offence of rape shall be punished with imprisonment for either description for ataking into account gravity and special nature of the case in the I.P.C.?
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 woman raped is his own wife and is not under twelve years of age in which case, he shall be punished with imprisonment of their description for a term which may extend to two years or with fine or with both:
Clause 2 of section 376 deals with instances of:
(1) Rape committed by a police officer on a woman in his custody or in the custody of a police officer subordinate to him, within the limits of the police station to which he is appointed to or in the premises of any other police station;
(2) Rape by a public servant, who taking advantage of his official position, rapes a woman in his custody or in the custody of his subordinate;
(3) Rape committed on the inmates of any jail, remand home, place or institution by the management or staff of such jail, remand home etc.;
(4) Rape of a woman in a hospital by the management or staff of the hospital;
(5) Rape of a pregnant woman;
(6) Rape of a woman under 12 years of age;
(7) Gang rape.
Since consent of the rape victim, express or tacit, has been successfully pleaded as a defence to the offence of rape, most cases of custodial rape escape prosecution, as the defence in most cases is able to establish tacit consent. In Tukaram v. State of Maharashtra, MANU/SC/0190/1978 : AIR 1979 SC 185 even apex Court declined to believe that the woman did not consent and reduced the sentence of the rapist. This case led to public agitation, with the result that the law had to be changed. Indian Evidence Act, 1872 was amended and section 114A was inserted by the Criminal Law (Amendment) Act, 1983. Section 114A runs as under:
In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
This section provides that in cases of custodial rapes once sexual intercourse by the accused is proved, or the woman gives evidence that she did not consent, the court shall presume that she did not consent.
When a group of persons attempt to rape a woman, and some succeed and some do not, all of them will be liable for the offence.
In Pramod Mahto v. State of Bihar, MANU/SC/0416/1989 : AIR 1989 SC 1475, Narayan, J. observed that:
"That Explanation has been introduced by the Legislature with a view to effectively deal with the growing menace of gang rape. In such circumstances it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under section 376, I.P.C"
In Prem Prakash v. State of Haryana, AIR 2011 SC 2677, this case where the appellant was driving car in which she was kidnapped and raped in car one after the other by appellant and other two accused. Doctor had also specifically stated that there was possibility that she was subjected to intercourse on date of occurrence. Prosecutrix and her father made to run from pillar to post by police authorities, before their case could be registered. Describes and points towards apathy in functioning of investigating agencies in heinous crimes to which complainant was subjected. One of accused in his statement under section 313 has not stated anything about false implication of appellant on account of land dispute. Gang rape confirmed. Appeal dismissed.
Sections 376A to 376D of the Indian Penal Code relate to cases where the woman with whom sexual intercourse has been committed has consented but she had consented in such circumstances that she could not have withheld her consent.
Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
Whoever, being the superintendent or manager 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 induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
Explanation 1.--
"Superintendent" in relation to jail, remand home or other place of custody or a women's or children's institution includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.
Explanation 2.--
The expression "women's or children's institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.
Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
Explanation.--
The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.
Sections 376A to 376D deal with various forms of sexual assault not amounting to rape against women. Section 376A deals with rape of a woman by her husband when she is judicially separated from him or separated under any custom or usage; the punishment provided is imprisonment of either description upto two years and fine.
Sections 376B to 376D deal with inducing or seducing a woman to have sexual intercourse by a public servant, superintendent or manager of jail, remand home or other places of custody or by management or staff of a hospital in whose custody or care the woman might be placed. In all these instances, the offender should have taken advantage of his official position to induce or seduce a woman to sexual intercourse. A punishment of imprisonment upto five years and fine has been provided for, under all these sections.
In Bodhisattwa Gautam v. Subhra Chakraborty, MANU/SC/0245/1996 : (1996) 1 SCC 490: AIR 1996 SC 922 Subhra Chakraborty was a student and the accused (Bodhisattwa) was a lecturer in the same college and a love affair developed between them. With mala fide intention to practise deception on the complainant, the accused gave false assurance of marriage to the innocent complainant and thereby, the accused dishonestly procured sexual intercourse with the complainant. The accused often used to induce the complainant to have biological contact with him, but whenever he was approached by the complainant to complete the marriage ceremony, the accused very tactfully used to defer the marriage, sometimes saying that he was waiting for his parents' formal consent and sometimes saying to cooperate with him till he got government service.
In course of continuation of the affair between the complainant and the accused, the complainant got pregnant twice, once in the month of September 1993 and secondly in the month of April 1994 out of her cohabitation with the accused person. The complainant being worried about her said pregnancy created pressure upon the accused to marry her immediately and to save her from being ruined, but the accused on the plea of his parents' permission went on deferring the marriage. As a result there was a quarrel between the complainant and the accused, whereafter the accused lastly opined for secret marriage to avoid social gathering as he was waiting for his parents' permission.
Issue:
Whether any further order can be passed in the case and Gautam can be compelled to pay maintenance to Subhra during the pendency of the Criminal case?
Decision:
The apex Court observed that;
Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated Crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights namely the Right to Life contained in Article 21. To many ferminists and psychos rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.
The apex Court further indicated the broad parameters in assigning the victims of rape as follows:
(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station. The guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
(4) A list of Advocates willing to act in these cases should be kept at the police station for victims who do not have a particular lawyer in mind or whose own lawyer was unavailable.
(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient movement, but in order to ensure that victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court is sought or obtained.
(6) In all rape trials anonymity of the victims must be maintained, as far as necessary.
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatized to continue in employment.
(8) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into accountpain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.
The Supreme Court held that, having regard to the facts and circumstances of this case, Gautam shall pay to Subhra a sum of Rs. 1000 every month as interim compensation during the pendency of criminal case.
In State of Punjab v. Gurmit Singh, MANU/SC/0366/1996 : (1996) 2 SCC 384 the victim, a girl below 16 years of age, was going to write her matriculation examination. One car stopped near her. Ranjit Singh came out of the car and caught hold of the prosecutrix from her arm and pushed her inside the car. Jagjit Singh @ Bawa put his hand on the mouth of the prosecutrix, while Gurmit Singh threatened the prosecutrix, that in case she raised an alarm she would be done to death. All the three accused drove her to the tubewell of Ranjit Singh, the accused. She was taken to the 'kotha' of the tubewell. The driver of the car after leaving the prosecutrix and the three accused persons there went away with the car. In the said kotha Gurmit Singh compelled the prosecutrix to take liquor, misrepresenting to her that it was juice. Her refusal did not have any effect and she reluctantly consumed liquor. Gurmit Singh then removed her salwar and also opened her shirt. She was made to lie on a cot in kotha while his companions guarded the kotha from outside. Gurmit Singh committed rape upon her. She raised roula as she was suffering pain but Gurmit singh threatened to kill her if she persisted in raising alarm. Due to that threat, she kept quiet. After Gurmit Singh had committed rape upon her, the other two accused, who were earlier guarding the kotha from outside, came in one by one and committed rape upon her. Jagjit Singh alias Bawa committed rape on her after Gurmit Singh and thereafter Ranjit Singh committed rape on her. Each one of the accused committed sexual intercourse with the prosecutrix forcibly and against her will.
The trial court not only disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterized her as 'a girl of lose moral' or 'such type of girl' on the basis of medical evidence.
Issue:
Under the above facts and circumstances, whether the offence of rape was committed?
Decision:
The apex Court observed that:
(i) From the statement of the prosecutrix, it clearly emerges that she was abducted and forcibly subjected to sexual intercourse by the three accused persons without her consent and against her will.
(ii) We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosectum. The observations lack sobriety expected of a Judge. Such like stigmas have the potential of discouraging an even otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals, thereby making the society suffer by letting the criminal escape even a trial. The courts are expected to use self-restraint while recording such findings which have large repercussions so far as the future of the victim of the sex crime is discouraged - the criminal encouraged and in turn crime gets rewarded. Even in cases, unlike the present case where there is some acceptable material on the record showing that the victim was habitual to sexual intercourse, no such inference like the victim being a girl of "loose moral character" is permissible to be drawn from that circumstance alone. Even if the prosecutrix in a given case, has been promiscuous in her sexual behaviour earlier, 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. No stigma, like the one as cast in the present case should be cast against such a witness by the courts, for after all it is the accused and not the victim of sex crime who is on trial in the court.
With the above observations, the apex Court convicted all the three accused persons for kidnapping and rape.
In Bhupinder Sharma v. State of Himachal Pradesh, MANU/SC/0825/2003 : (2003) 8 SCC 551 the victim aged about 16 years had gone to Solan in 1998 to purchase medicines for her ailing grandfather. She had gone to Solan for the first time and reached the bus stand at about 2.00 p.m. After having alighted from the bus, she enquired from a lady as to where a particular medicine shop was located. The lady stated ignorance. At this juncture, two persons came there and asked her to accompany them in a three-wheeler as they were both going to the shop concerned. The victim was taken by the two boys, namely, accused Ashish Kanwar and Suresh to an isolated place in a jungle. The three-wheeler was sent back with a direction to come in the evening. After gagging her mouth, she was taken to a house which was below the road. There were four more boys. Three out of those were identified by the victim during the trial. The fourth one, namely, Shanker was not tried as adequate evidence was not available against him. The victim was sexually abused firstly by accused Ashish followed by accused Sunil, Suresh and Ruby. The appellant Bhupinder and Shanker were in the process of taking off their clothes with a view to perpetuate sexual abuse when the victim managed to escape with only a shirt and ran way barefooted. When she reached near the road she saw Chaman Lal, ASI who was accompanied by police officers. Meanwhile, two other persons also came there. They were Charanjit and Balvinder. When the victim described the ghastly incident to them, she was taken to the room where she had been raped, but it was found that all six of them had fled away.
Issue:
Whether an offence of gang-rape was committed?
Decision:
The apex Court observed that:
(i) The offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear or fraud" or as "the carnal knowledge of woman by force against her will". In the crime of rape, "carnal knowledge" means the penetration to any slightest degree of the organ alleged to have been carnally known by the male organ of generation.
(ii) To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion? The plea about lack of corroboration has no substance.
(iii) In cases of gang rape the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation I in relation to section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under section 376, I.P.C.
With the above observations, the Supreme Court dismissed the appeal and convicted the accused persons for gang rape.
In Tukaram v. State of Maharashtra, AIR 1991 SC 185 Mathura was living with her brother Gama. She used to visit the house of Nushi for work and there she came into contact with Ashok (relative of Nushi). Their contact developed into an intimacy and both of them decided to marry each other.
On 26th of March 1972, Gama lodged report at police station Desai Gunj alleging that Mathura had been kidnapped by Nushi, her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao at whose instance all the three persons complained against as well as Mathura were brought to the police station at about 9 p.m. and who recorded the statements of the two lovers. By then it was about 10.30 p.m. and Baburao told them to go after giving them a direction that Gama shall bring a copy of the entry regarding the birth of Mathura recorded in the relevant register and himself left for his house as he had yet to take his evening meal. At that time the two appellants were present at the police station.
After Baburao had gone away, Mathura, Nushi, Gama and Ashok started leaving the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura into a latrine situated at the rear of the main building, loosened here underwear, lit a torch and started at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he pushed her on the ground and raped her inspite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura's private parts were fondled. He also wanted to rape her but was unable to do so for the reason that he was in a highly intoxicated condition.
Issue:
Whether the sexual intercourse in question amounts to rape within the meaning of thirdly of section 375?
Decision:
The apex Court observed and held that:
(i) There is no reason to disbelieve Mathura's assertion that after Baburao had recorded her statement, she and Gama had started leaving the police station and were passing through the entrance door when Ganpatcaught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she was in the company of her brother and had particularly left the police station, she would be so over-awed by the fact of the appellants being persons in authority in the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as "passive submission."
Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts.
(ii) The section itself states in clauses Thirdly and Fourthly as to when a consent would not be a consent within the meaning of clause Secondly. For the proposition that the requisite consent was lacking in the present case, reliance on behalf of the State can be placed only on clause Thirdly so that it would have to be shown that the girl had been put in fear of death or hurt and that was the reason for her consent. To this aspect of the matter the High Court was perhaps alive when it talked of "passive submission" but then in holding that the circumstances available in the present case make out a case of fear on the part of the girl, it did not give a finding that such fear was shown to be that of death or hurt, and in the absence of such a finding, the alleged fear would not vitiate the consent. Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be such that it leads to no reasonable inference other than that of guilt. The fear which clause Thirdly of section 375 speaks of is negatived by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were all leaving the police station together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not capable of being construed in no uncertain measure form the inference drawn by it.
(iii) Therefore, the sexual intercourse in question is not proved to amount to rape and no offence is bought home to Ganpat as well as to Tukaram.
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