Revision as of 12:53, 8 February 2014

The legal aspect: What constitutes a rape?

Affair gone bad no ground for rape charge: Bombay HC

Shibu Thomas, TNN | Jul 12, 2013

The Times of India

MUMBAI: A love affair gone bad is no reason to charge a man who got a woman pregnant with rape, the Bombay high court has ruled. Justice Sadhna Jadhav acquitted Borivali resident Manesh Kotiyan (39) of rape charges three years after his arrest and subsequent conviction.

"The very fact that the prosecution has admitted in the cross-examination that she had a love affair with the accused and she desired to marry him. In these circumstances, offence under Section 376 of the IPC (rape) would necessarily fail," said Justice Jadhav ruling that the rape charges against Kotiyan were "unsustainable".

The court went through the prosecution case and noted that the accused had proposed to the girl. "The complainant is an educated adult person," said the judge. "She was fully aware of the fact that he (Kotiyan) was attracted to her. She chose to accompany him to Gorai. She also checked into a hotel to celebrate his birthday. She was aware of the consequences," said the judge.

"She had not cried for help and had not taken her resistance to a logical end. Hence, it would not be justifiable to hold that the consent was obtained by intimidation, force meditated imposition, circumvention surprise or undue influence," said the judge.

The court, however, upheld Kotiyan's conviction on charges of cheating as he had failed to disclose to the victim that he was married and had children. Since he has served around three years in prison, the court ordered his release.

"There is no evidence that the accused coerced her and raped her," said advocate Arfan Sait, who was appointed by the high court legal aid cell to defend Kotiyan. "He had always intended to marry her and had told her he would do so once the divorce proceedings ended."

The case dates back to March 2010, when the girl who was four months pregnant lodged a case of rape against Kotiyan. The two had met when they were working at a stationery shop in Borivli. In November 2009, they had gone to Gorai to celebrate Kotiyan's birthday, where according to the prosecution he forced her into having sexual intercourse. A sessions court in 2012 held Kotiyan guilty of rape and sentenced him to seven years rigorous imprisonment. Kotiyan filed an appeal in the HC. "It is clear from her deposition that she had lodged the FIR in a fit of rage," the HC said.

The nature of the consent

'Nailing rapist hinges on nature of consent'

Shibu Thomas, TNN | Jul 15, 2013

The Times of India

MUMBAI: In recent rulings in rape cases filed after a relationship went awry, courts considered three key aspects —consent, how that consent was obtained and whether or not the accused had mala fide intention in promising marriage before getting into a physical relationship with the victim.

If a victim deposes that she did not give her consent, then the court has to presume that she did not give her consent

India has one of the toughest laws with regards to rape, where if a victim deposes that she did not give her consent, then the court has to presume that she did not give her consent (Section 114-A of the Indian Evidence Act). Section 90 of the IPC stipulates that a consent given under a misconception of fact is not valid.

In cases where love affairs have failed, the law states that if the victim, under a misconception of fact that the accused was likely to marry her, submits to his lust, then such an act is not consensual. Courts have taken a nuanced look at such cases.

Did the accused make a false promise of marriage?

"There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception," the Supreme Court said in a ruling in May. "There is a distinction between the mere breach of a promise and not fulfilling a false promise."

The apex court held that an accused can be convicted of rape only if the court reaches a conclusion that his intention was mala fide and he had clandestine motives.

"... There must be adequate evidence to show that at the relevant time, which is at an initial stage itself, the accused had no intention whatsoever of keeping his promise to marry the victim," the court had ruled. "There may... be circumstances when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The failure to keep a promise made with respect to a future uncertain date due to reasons that are not very clear from the evidence available does not always amount to misconception of fact."

The Bombay high court in its ruling acquitting a Borivli resident man of rape charges (see on this page 'Affair gone bad no ground for rape charge: Bombay HC') had taken a similar view. The court ruled that the consent was not forced as the victim had admitted to accompanying the accused to a hotel in Gorai. She had not cried out for help. The court held that the accused had "not committed sexual intercourse on false promise of marriage". "He was willing to marry her. The impediment was the proceedings filed by his first wife. Even according to the complainant, the (accused) had assured her that he would get married to her after obtaining divorce from his first wife."

Sex after false promise of marriage is rape

Sex after false promise of marriage is rape, says HC

TIMES NEWS NETWORK

The Times of India 2010-02-02

New Delhi: Declining bail to a man who allegedly raped his fiancee and later refused to marry her, Delhi High Court said courts need to take a strict view of such cases.

Justice V K Jain refused to grant bail to the man, Nishant (name changed), who had filed a petition for anticipatory bail in a case where he is accused of raping a girl who was approved by his family and had even got engaged to him.

‘‘If a girl surrenders herself to a boy who comes in contact with her for the first time only in connection with a proposal for her marriage and then enters into a formal ceremony of engagement..she does it not because she loves him or wants to have pleasure with him, but because she doesn’t want to disappoint her future husband,’’ the HC held, rejecting the argument of the accused that it was consensual sex.

The HC said if a view was taken that persuading a girl to have physical relations on the false promise of marriage, despite having no such intention, does not constitute rape, ‘‘this will amount to putting premium on a conduct which is not only highly reprehensible and abhorable but also criminal in nature.’’

Sexual intercourse on assurance of marriage not rape if assurance not fulfilled

Premarital sex 'immoral', no religion permits it: Court

PTI [1] | Jan 5, 2014

NEW DELHI: Additional sessions judge Virender Bhat held that a woman, especially grown up, educated and office-going, who has sexual intercourse on the assurance of marriage does so "at her own peril".

"In my opinion, every act of sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy," the judge said.

"When a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the latter's promise that he would marry her, she does so at her own peril. She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfil his promise, the court held while acquitting an employee of a multinational company of the charges of rape.

The 29-year-old man, a resident of Punjab, was arrested when a woman, doing a secretarial and administrative job at a private company in Delhi, lodged a complaint of rape against him in May 2011.

In her complaint, the woman had alleged that the man, whom she had met through a chat website in July 2006, used to have physical relations with her on several occasions by promising to marry her.

No reduction of punishment on compromise or marriage between rape survivor and rape convict

SC warns courts against showing leniency towards rape convicts

Dhananjay Mahapatra, TNN | Aug 27, 2013

The Times of India

NEW DELHI: The Supreme Court on Tuesday ruled that compromise between rape survivor and rape convict cannot be a ground to reduce sentence of imprisonment.

Even offer of marriage by the accused to rape survivor cannot persuade courts to reduce sentence of rape convicts, the top court said.

The apex court said law permits the court to reduce sentence even in rape cases under exceptional circumstances but compromise between the assaulted woman and the rapist cannot be a ground for that exception.

The top court said allowing compromise between rape survivor and convict for reduction of sentence would allow the accused to exert every kind of pressure on the rape survivor to settle for a compromise.

Long delay in trial and the fact that rape survivor has settled in life were also no grounds to reduce sentence of rapists, the SC ruled. Religion, caste or status of accused too should not make any difference to the case trial and imposition of sentence when convicted, the court said. Justifying harsh punishment in rape cases, the court said rape is not only a physical and mental assault of a woman but also a crime against society requiring courts not to show leniency to rape convicts when it came to imposing sentence.

Warning the high courts and trial courts against leniency towards rape convicts, SC said orders imposing sentence less than prescribed or releasing accused on the grounds that period of sentence has already been undergone would reflect insensitivity of court towards rape survivor and society.

Rape: conviction even if victim does not testify

‘Rape conviction even if victim won’t testify’

Shibu Thomas | TNN

Mumbai: A man can be convicted of rape even if the victim does not testify in court during the trial, the Bombay High Court has ruled. The court’s ruling came in the infamous case of 2002 when a mentally challenged minor girl was raped by a youth in a Borivli-bound suburban train.

‘‘Non-examination of the girl in the given circumstances will not be fatal for the prosecution case,’’ said justice J H Bhatia. The judge observed the victim girl was mentally challenged and was unable to express herself. The victim’s evidence was therefore not recorded by the trial court. ‘‘In such circumstances, merely because her evidence could not be recorded, the evidence of two eye-witnesses and other circumstantial evidence corroborating them could not be simply brushed aside or thrown away,’’ said the judge while finding Jogeshwari resident Salim Shaikh guilty of the charge of rape.

The court, however, reduced Shaikh’s jail term from 10 years to seven years, after defence advocate Arfan Sait argued there was no justification to award a harsh prison term than the minimum prescribed by law. ‘‘Merely because the victim in this case was mentally retarded cannot be a reason to award the sentence of imprisonment for 10 years,’’ agreed Justice Bhatia. Shaikh who has been in jail since his arrest in August 2002, has been ordered to be released by the court if he has completed his sentence.

The incident that shocked the city occurred on August 14, 2002 around 1.50 am in a Borivli-bound local train. The victim was travelling by train, when the accused raped her between Malad and Borivli. When other commuters tried to come to the aid of the victim, Shaikh reportedly threatened them. Shaikh jumped out of the train as soon as it reached Borivli station. Two of the commuters, who were the prime witnesses in the case, approached the police to register a complaint. Shaikh was nabbed, while the victim was sent to a shelter.

A medical examination confirmed rape. The trial court sentenced Shaikh to 10 years rigorous imprisonment. He then filed an appeal in the HC. Advocate Sait, who was appointed from the legal aid panel to represent Shaikh, pointed to drawbacks in the prosecution story. Sait argued the victim had not been examined to prove the offence of rape.

Compensation for rape victims

‘Compensate rape victims’:Supreme Court

TIMES NEWS NETWORK 25/04/2013

The Times of India

New Delhi:Victims of sexual assault need a completely different treatment than what is meted out to them by society and state authorities, the Supreme Court has said and ordered all states to implement its 18-year-old directive.

The 1995 judgment of the apex court had directed setting up of Criminal Injuries Compensation Board and said it could take up the task of determining the amount to be paid by the offender to rape victims who incur huge financial loss apart from carrying the unwarranted stigma.

“The board shall take into account the pain, 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 rape,” the court has said in Delhi Domestic Working Women’s Forum case.

Reiterating the guidelines, a bench of Justices B S Chauhan and F M I Kaliffulla said, “Undoubtedly any direction issued by this court is binding on all the courts and all civil authorities within the territory of India.” While dealing with a rape case from Madhya Pradesh, the bench accepted arguments of Vibha Datta Makhija and upheld the HC’s decision to reverse the acquittal of one Dilip who was accused of rape.

The lack of sensitivity shown towards the rape victim by the prosecution and the trial court anguished the bench and said that the 18-year-old directive asking the prosecution and states and Justices Chauhan and Kalifulla decided to add more norms to the guidelines.

Compensate rape victims in 2 months, Bombay HC tells state govt

Rosy Sequeira, TNN | Jul 26, 2013

The Times of India

MUMBAI: The Bombay high court on Thursday granted a state government request for two months to implement a scheme to compensate rape and sexual assault victims but reminded it that such incidents were increasing. The HC said the government "cannot take its own sweet time' and delay its implementation.

A division bench of Justices S C Dharmadhikari and S B Shukre heard a public interest litigation by the Forum Against Oppression of Women to direct the government to constitute a victim compensation fund mandated by the Supreme Court to states in 1995. The principal secretary (women & child development) appeared in court after the judges, at a previous hearing, were miffed when told there were no funds to rehabilitate victims.

Assistant public prosecutor Prajakta Shinde sought time as the proposal was pending before the home department since July 16. "At this rate, you will want months together. How long should anybody wait?' said Dharmadhikari. "Does the cabinet not meet during the assembly session? Is it not possible for the cabinet to take advantage of placing it before the assembly? For such ameliorative measures, who is going to say no?' he said.

The judges expressed "surprise' that even after "an officer as high as the chief secretary" held a meeting, the process to obtain comments and approval of other departments was initiated.

"The chief secretary, after convening a meeting, does not get departmental approval? You must impress upon people who are part of the welfare state. Such incidents are increasing. You cannot take you own sweet time,' Justice Dharmadhikari said.

Shinde sought two months to implement the scheme. "It will be taken up on priority,' she said. The petitioner's advocate, Vijay Hiremath, said accounts had been opened in May but after that no action was taken. Dharmadhkari riposted, "If there is a scheme in place, let it start. We must not start the process of finding fault. As citizens we must show concern for victims." The judges said the state must show a "sense of urgency in formulating and implementing schemes to offer solace to victims".

They said that at least now the state must show concern and respond to the needs of victims so that they have support in their battle for justice. They said the scheme was expected to be in place by the next hearing in eight weeks and added that there will be no extension.

Children born in rape cases are not "property" in the crime

Kids born in rape cases can't be 'property' in crime: HC

PTI | Aug 15, 2013

The Times of India

MUMBAI: In a significant order, the Bombay high court has observed that children, born to minor unwed mothers in rape cases, cannot be treated as "property" in the crime while considering requests from Child Welfare Committees to declare such children free for adoption.

Accordingly, Justices R M Borde and R V Ghuge quashed orders of a Child Welfare Committee which asked an adoption agency to seek NOC from court and permission from police to allow adoption of children born to unwed mothers who had been raped.

The high court was hearing two separate petitions filed by Snehalaya Snehankur Adoption Centre which had applied to the Child Welfare Committee to give a declaration that such children, born to unwed mothers, were free for adoption.

Assistant government pleader told the court that the Child Welfare Committee had asked police to inform whether they would need the presence of children since they are born out of sexual violence, in respect of which act, an offence has been registered with the police. Besides, it was also awaiting a report from a probation officer.

The judges said, "Merely because children are born out of sexual violence to minor unwed mothers, it does not mandate calling of report from police as to whether they would need the children for investigation or for calling upon the adoption agency to produce a 'no objection certificate' from the competent court dealing with trial of offence."

"It must be understood that the police are concerned with the investigation of crime which is in the nature of sexual violence meted to a minor girl. Also, the court in a trial is concerned with the offence of sexual violence alleged against the accused," the judges said recently.

Considering the applications, tendered by adoption agency seeking a declaration from the committee that the children are free for adoption, those children, who are born to unwed minor mother out of sexual violence, cannot be treated as "property" involved in the crime," the bench said.

"There is no role of police or court in a criminal trial relating to sexual violence, in the matter of grant of declaration by the committee that the children are free for adoption. We are of the opinion that the committee has not exhibited sensitivity, as contemplated by the government in its policy on children in 2003," they said.

Disposal of rape cases by Indian courts

Pendency of rape cases falls in 5 HCs

Karnataka Disposed Of Over 4.5k Rape Cases In 3 Yrs, Delhi HC 2nd Best

TIMES NEWS NETWORK

The Times of India 2013/08/13

New Delhi: The high courts of Calcutta, J&K, Gauhati, Uttarakhand and Himachal Pradesh are among the high courts with the lowest pendency of rape cases despite the fact that some of these states have seen a high number of sexual harassment cases coming up for trial every year in their lower courts.

The pendency of rape cases in these HCs range from 26 to 177, while some others such as the HCs of Allahabad, Madhya Pradesh, Punjab & Haryana, Chhattisgarh and Orissa had pendency ranging from 1,000 to 8,200 as of September 2012.

Delhi has 924 rape cases pending in its high court even after disposal of more than 1,100 cases between 2009 and 2012. Delhi HC, after Karnataka, remains the best performer in the last three years in clearing backlog. Karnataka, which had 243 cases pending in its HC, disposed of over 4,500 rape cases during this period, according to the law ministry.

But as far as rape cases coming up for trial are concerned, West Bengal ranks at the top with 15,197 cases reported in 2012. Maharashtra is second with 14,400 cases, followed by Madhya Pradesh with 11,200.

Even in Uttar Pradesh, which has the highest pendency in its HC, the cases reported for trial are way below at 5,790.

Bihar, notorious for its crime graph earlier, reported 4,100 cases for trial, above Gujarat at 3,373 cases.

Section 309 of the Code of Criminal Procedure

Releasing the data in Lok Sabha in response to a question last week, law minister Kapil Sibal said, “To expedite the trial of criminal cases and for certain serious offences relating to crime against women, Section 309 of the Code of Criminal Procedure provides that in every enquiry or trial, proceedings shall be held as expeditiously as possible and in particular, when examination of witnesses has once begun, the same shall be continued from day-today until all witnesses in attendance have been examined.”

Section 309 also provides that when the inquiry or trial relates to an offence under Sections 376 to 376D of the IPC, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of examination of witnesses.

“Not only that, several legislations enacted for protection of women and children against violence and sexual offences contain provisions for speedy trial of such cases,” Sibal said.

See also

Age of consent Crimes against women: India Juveniles, benefits and privileges of Juvenile delinquency in India Especially the section 'Rape by juveniles' Premarital sex Rapes in India