Rapes in India: court verdicts
This is a collection of newspaper articles selected for the excellence of their content. |
The legal aspect: What constitutes a rape?
The nature of the consent
'Nailing rapist hinges on nature of consent'
Shibu Thomas, TNN | Jul 15, 2013
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.
Rape cases, like murder, cannot be compounded
Can’t nix rape case even after compromise: SC
Dhananjay.Mahapatra @timesgroup.com New Delhi:
The Times of India Jul 29 2014
Dowry harassment cases are personal in nature and can be quashed if the estranged couple reach a “genuine” compromise, the Supreme Court has ruled.
A bench of Justice Ranjana Desai and N V Ramana drew a contrast between offences under Section 498A IPC and heinous crimes like rape and murder, though all three are non-compoundable.
It said Section 320 of the Criminal Procedure Code provided the list of offences that could be compounded after parties reached a compromise and the courts have to strictly follow that.
Justice Desai said: “It is, therefore, not possible to permit compounding of offences under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are noncompoundable, because such offences are personal in nature and do not have repercussion on society, unlike heinous offences like murder, rape etc.“
The judgment came in a case related to a complaint under Section 498A and Section 4 of Dowry Prohibition Act by a woman against her husband and parents-in-law. Though the Madhya Pradesh HC ac upheld the husband’s conviction. However, it reduced his term to six months imprisonment from a two-year sentence imposed by the trial court.
In SC, the couple reached a compromise, with the husband agreeing to pay Rs 2.5 lakh in addition to bearing the cost of litigation. The woman pleaded for quashing of the case against her estranged husband, which was opposed by the standing counsel for MP. But the bench rejected the state’s objection.
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
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.
Life term only if rape is brutal
From the archives of The Times of India 2010
Life term only if rape is brutal, else 10 yrs: HC
TIMES NEWS NETWORK
New Delhi: The Delhi High Court has said that the offence of rape should be accompanied with acts of brutality to merit maximum penalty of life imprisonment for the guilty. Reducing the punishment awarded to a tutor from life imprisonment to 10 years, a bench of justices Pradeep Nandrajog and Suresh Kait said the act of rape should be brutal to attract maximum punishment. The accused had raped his minor student in August 2004.
According to the FIR that was lodged on the complaint of the victim’s mother, she was shocked to witness the crime on returning from market as her daughter took tuitions from the accused.
Interestingly, with solid medical evidence and the testimony of the mother against him, the accused Arun Kumar sought leniency in his sentencing. Kumar pleaded for a lighter prison term saying life sentence was too harsh a verdict.
HC noted that there were no aggravating circumstances in the case and reduced Kumar’s term.
‘‘Counsel for the accused concedes that in view of the evidence, even excluding the DNA report, there is tell tale evidence of the appellant being the tormentor of the young girl,’’ HC observed pointing out just because the victim was a minor, it doesn’t mean the accused be given life term.
‘‘Brutality at the time of rape has to be factored in. If the rape is accompanied by acts of brutality, higher sentence should be imposed,’’ HC said.
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
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.
Pending rape cases
Over 31,000 rape cases pending in High Courts
December 17 2014
Crimes against women are on the rise, and so is the pendency of such cases in the subordinate and high courts across the country. In the last three years, number of cases relating to sexual harassment, kidnapping and abduction including rape has gone up from 2.28 lakh to 3.09 lakh. Over 31,000 rape cases are pending in high courts alone.
Concerned at increasing pendency of cases of crime against women and children, the law ministry has written to the state governments and the chief justices of HCs to constitute fast track courts for speedy trial of such cases. The conviction rate in these cases, however, came down from 27% to 22% between 2011 and 2013.
After the December 2012 Delhi rape case, the government had asked the state gov ernments to allocateTOTAL (ALL S additional funds for setting up of fast track courts (FTCs) for trials related to crime against women and children.
This has resulted in at least 318 FTCs being set up by various HCs, designating them exclusively for trials of cases related to crime against women. Madhya Pradesh has set up highest FTCs for women and children (50), followed by West Bengal (48).
There are 310 cases of sexual harassment pending in the Supreme Court while it has L STATES) 318 disposed of 1,455 since 2009. In the HCs, the pendency of rape r cases is as high as 31,386 while e 15,453 have been disposed of in the last three years.
Pending rape cases: 2011–2013
Sex offence cases up after reforms
Somreet Bhattacharya [http://epaperbeta.timesofindia.com/Article.aspx?eid=31808&articlexml=Sex-offence-cases-up-after-reforms-16122014004048 ' The Times of India] Dec 16 2014
The “police reforms“ that followed the Nirbhaya case led to a free and easy registration of crimes against women. As a result, now the police have to note down a woman's complaint verbatim. Earlier, the police used to modify the complaints. The new system has also done away with medical tests and inquiries prior to the registration of the case.
Police officers admit that this has increased the number of rape cases registered by nearly 150% of what it used to be. At the same time, it has also led to a lot of frivolous rape cases being filed to settle personal scores as well.
Officers say that the free registration has increased the number of FIRs getting registered per year from 680 in 2012 to 1,559 cases in 2013 and 1,925 cases till November this year. The number of molestation cases has also gone up from 615 in 2012 to 3,347 last year and 3,932 cases till November 2014.
According to a police officer, once a woman registers a complaint, the police have to treat it as a statement and arrest the accused within a week. Even activists agree that now women don't have to run from pillar to post to register an FIR. “Once a case is registered, the general perception of the public, including the family members of the victim, tends to question the character of the woman. People start judging the woman first and then the accused,“ said Manisha Goel, an MBA aspirant and an activist.
The police also admit that the increase in the number of cases has resulted in the piling up of cases at each police station, affecting the investigations. Now, in a rape case, the investigating officer has to submit a chargesheet within 20 days of it being registered, which forces them to complete the probe in a hurry . The problem is compounded by the shortage of women staff at police stations as well, police officers claim.
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: Compensation and help for survivors
Rapes in India Rapes in India: court verdicts
Rapes in India: the legal position after 2013
