CHAPTER 1 RAPE: INTRODUCTORY OUTLINE

Page | 1

Now a days in India Rape is become the most heinous crime in the country. Due to this reason even the Indian Judiciary in great chaos. Some of the famous jurists and the social organisation working for the benefit of women have a view that to make the crime less active in the country the Judiciary must make the amendment in the punishment of rape and make capital punishment in the cases of rape. But in the mean while Judiciary have their own reasoning which state that if they make the capital punishment is the punishment in the cases of rape. Sometimes it will take the undue advantage of the other party. The problem is that how to decide the rarest of rarest in certain cases. Now researcher would analyse the all relevant aspect related to making capitals punishment in cases of rape. A rapist not only causes physical injuries but indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, chastity, honour and reputation." Rape is one of the most heinous of all crimes against women. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. It is a crime against basic human rights one is entitled to and a clear violation of the Right to Life enshrined in Article 21 of our Constitution. To truly understand and analyse the laws relating to rape and other sexual offences, identify the glaring loopholes if any and deliberate on desired changes in the law, we need to treat Rape as a crime against the entire society and not solely against the women victims.

Women, regardless of their age and social status form an integral part of society and protecting them from sexual humiliation and degradation is the responsibility of society and the legal system within which it operates. The Indian Penal Code (45 of 1860) was enacted in the year 1860 but the provision relating to Rape embodied in Section 375 and 376 has remained substantially similar since the enactment. Landmark cases such as the Mathura Rape Case and the resulting Public campaign against the Supreme court judgment in the case have led to a vibrant Womens movement thereby mounting pressure on the Union Government to take stock of the existing provisions of the Code pertaining to Rape and make necessary amendments. Recommendations contained in voluminous Law commission Reports and Bills tabled in the Parliament have reviewed the position of law on the subject and suggested necessary changes for the law to keep pace with the demands of contemporary society.
Page | 2

However, on a closer examination, it is rather dismal to note that most of the Recommendations and enactments remained mere paper tigers and ornamental pieces of legislation. As a result the law dealing with Rape has remained largely untouched since the original enactment. This paper shall aim at providing a broad overview of the laws relation to Rape in the country, the enacted and proposed amendments, the crucial issues which need to be addressed and the defects which need to be rectified. The legal history of the offence in India shall be traced with the help of a timeline, plotted with the recommendations

envisaged in various Law commission reports, Amendments and the bulk of case law which has played an important role in settling some of the crucial issues that crop up in a majority of rape cases. It is the firm opinion of the author that the law on Rape needs to be overhauled to ensure there is no miscarriage of justice and the reputation and dignity of women is protected from the clutches of barbaric rapists. While preserving the basic human rights of women is of paramount importance, the law should also make provisions for cases of frameups and wrongful implication of innocent men. Pure gender neutrality is neither feasible nor desirable in the Indian setting. The paper shall also evaluate the pros and cons of a gender-neutral rape law and suggest the most viable solution in the authors opinion.
Page | 3

Statement of the Problem

The laws relating to rape and sexual assault are set to undergo a radical overhaul with the Union Home Ministry readying a draft Bill on the subject. Home Minister P. Chidambarams remarks suggest that the proposed legislation is likely to be based on the Law Commission of Indias 172nd report, which called for a thoroughgoing review of our rape laws. The 2000 report was prepared following a direction from the Supreme Court that loopholes in the law relating to rape and sexual assault should be identified with a view to plugging them. At least two major changes seem to be on the anvil. First, the meaning of rape, which Section 375 of the Indian Penal Code construes as nonconsensual sexual intercourse, will be broadened to cover other forms of penetrative acts that fall outside the purview of the existing definition. The Law Commission, the National Commission for Women, and various feminist organisations have supported such a widening of the definition of rape on the ground that the existing legal provisions neither reflect nor deal adequately with the various kinds of sexual assault women are subjected to in India. The restrictive interpretation of the term penetration in the Explanation to Section 375 fails to address the myriad ways victims of sexual crime can be humiliated physically, emotionally, and psychologically. Rape, as feminists have argued, must be understood as an experience of brutal violation and degradation and not just the act of penetration. The proposed legislation will also broaden the definition of rape in another respect by making it gender-neutral. This is principally to protect males, particularly young boys, who could be victims of homosexual crime. As the Law Commission observed in its
Page | 4

report on rape laws: Not only women but young boys are being increasingly subjected to forced sexual assaults[which] causes no less trauma and psychological damage to a boy than to a girl subjected to such offence. It is a mistake to regard gender-neutrality as a dilution of the rape law. While girls and women are victims of the vast majority of sexual crimes, boys and men suffer too. Statistics reveal that one out of 10 rape and sexual assault victims in the United States and England is male. Indian laws relating to rape have remained virtually unchanged since 1862, when the IPC came into force. (Some amendments made in 1983 have not made much of a difference.) It is necessary to review the law in a humane and progressive manner, factoring in what we know about the patterns of sexual assault and the severe trauma it inflicts on victims. The Home Ministrys draft Bill, which promises to do precisely this, will be closely watched.
Page | 5

What is Rape?
Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in Page | 6 England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called assault by penetration, which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that persons consent.

Objectives of the Study

(1) To know the relevancy of death penalty in case of rape.
Page | 7

(2) To examine the reasoning of rarest of rare in case of death penalty provided in rape. (3) To enquire about the views of different jurist and social organization regarding death penalty in Rape cases. (4) To judge the public opinion about the incidence of rape in the society as well as legal parameters. (5) T o analyze the relevance of recent amendment of criminal laws.

Hypothesis
Death penalty is an essence in the cases of rape in India

Review of Literature
K.D Gaur , Criminal Law and Cases 4th edition The introduction of the project and some idea behind the making of statement of problem has taken from this book .As this book briefly discuss all the relevant points which are related with the need of death penalty in the case of rape in India. Rakesh Bhatnagar, Supreme Court rules out death penalty for rape and murder accused, DNA, published: Monday, Feb 27, 2012, accessed on 28th July 2012. This article states the problem why the death penalty is not enter taint as a punishment in the rape cases in

India. It also covers the current scenario of Indian Society on the issue of capital punishment in rape cases.

Research methodology
This research paper is descriptive and analytical: A doctrinal method of research, based on secondary and electronic sources. Other references as guided by faculty of legal research methodology were primarily helpful for the completion of this project. The other secondary sources of data are: BOOKS WEBSITES

Page | 8

Nature of ResearchThe nature of this research is DOCTRINAL in nature. Sources of Data, Types, and Methods of Data CollectionCollected datas from the following sources: Primary sources Secondary Sources- Books, Library and Internet.

Time DurationIt took approximately 3 months

Social Context:-

Rape is a gender specific offence which can only be committed by men of all rapes. The victims may be women, other men or children. Around 90% of rapes are by people known to the victim. Over 90% of all rapes are against women. For these reasons, the victim or complainant of rape will be referred to here as female. This is not to under estimate the prevalence or trauma male rape.
Page | 9

Design of Study
Death for rapist has become a familiar theme in Parliament whenever the matter comes up for discussion in the wake of large-scale rapes taking place in the country. Public opinion also favours such a step. It is presumed that the solutions range from death to castration and whipping for such a heinous crime against the society. The existing penal provisions for rape under s376, IPC would reveal that punishment may extent up to life imprisonment with minimum of seven years under sub-s(1) to s376 and a minimum of ten years of imprisonment in case of custodial rape or rape on a pregnant woman, or on a child under 12 years of age or in case of gang rape, etc. under sub-s(2) to s376, IPC respectively.

CHAPTER 2 RAPE: CONCEPTUAL ANALYSIS

Page | 10

Meaning and Definition

Rape is the most heinous and inhuman offence. It is the barbarism of the worst order. Rape or Rapt is when a man hath carnal knowledge of a woman by force and against her will, or .Rape is the carnal knowledge of any woman, above the age of particular years, against her will. Rape is the act of physically forcing a woman to have sexual intercourse that is forced upon. 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 description:First:-Against her will. Secondly: - Without her consent. Thirdly: - With her consent. When her consent has been obtained by putting her or nay 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 of 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 under stance the nature and consequence 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. Explanation: - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Page | 11

Nature:Rape was narrowly identified as theft of virginity until the thirteenth century, deriving from the Latin derivation of the word meaning to seize or carry off. In ancient times, raiding tribes would seize and carry off not only goods, cattle and other spoils of war but also women. The rationale of the offence was the protection of a mans proprietorial right to control access to his wife or daughters. From theft of virginity it evolved to an offence against the will of the victim and this required evidence of force or resistance, as it still does in most American states. In the mid twentieth century rape became the protection of womans discretion by proscribing coitus contrary to her wisher or, in other words, non consensual sexual intercourse. Some other theories about rape emerged too. Positive economic theory in the 1990s asserted on the basis of bio-economic principles of that sexual practice and norms were

rational in the economists sense, males being sex seekers and females, sex-providers. Rape was a substitute for consensual sex rather than a manifestation of male hostility towards women.
Page | 12

Types and incidence

A- Heterosexual rape usually refers to an assault in which a forces himself upon a female, and homosexual rape usually refers to an assault in which a male forces himself upon another male. However, both terms (heterosexual and homosexual rape) have been used to refer to an assault in which a female forces herself upon a male or a female.
B- Sexual intercourse between an adult and a minor is known legally as statutory

rape. The adult can be found guilty of statutory rape even if the minor was a willing partner.

C- Gang rape is sexual assault in which several persons force themselves upon a victim.

D- Date rape is a sexual assault in which the victim is psychologically pressured, drugged or sedated before the rape. Date rape is so- named because it often involves a dating couple. The male may spike a females alcoholic beverage

making her unable to resist his advances or even unable to remember the rape.

E- Rape can also be occur in a marriage. Typically the husband forces himself on his wife at a time when she is unwilling to have sexual intercourse.

Historical development
The history of Rape law in India begins with the enactment of the Indian Penal Code in 1860. The history, changes and current position may be examined under the following headings: A) Law commission Reports B) Landmark judgments of the apex Court which provided an impetus to the Womens movement for reform C) Proposed changes in the form of Bills tabled before the Parliament D) Subsequent Amendments to the substantive and procedural laws concerning Rape

Page | 13

A) The Law Commission Reports: Harbingers of change?

There are 4 major Law commission reports which address the law on Rape- while two Reports were recommendations on the IPC in general within which the provision of rape was discussed, two exclusively dealt with reforms related to rape. : i) 42nd Law commission report, 1971 ii) 84th Law commission report, 1980 iii) 156th Law commission report, 199

iv) 172nd Law commission report, 2000 On perusal of the aforementioned Reports, it is found that the same thread of issues and arguments runs through all the Reports. The statutory definition of the term Rape under Page | 14 the IPC, defining consent, the weight attached to the testimony of the Prosecutrix and the necessity of corroboration, deliberating on whether to make the offence gender neutral and amending procedural laws to make the Trial procedure more sensitive and less traumatic for the victim are among the issues taken up for consideration in the various reports of the Law commission on Rape. Each successive Report is an improvement over the prior one addressing the issue, however it is disheartening to note that many useful recommendations mentioned therein have not found their way into the Bills presented to Parliament. As a result, the law in this regard still remains ineffective and in need of reform to a great extent. However, the Criminal law (Amendment) Bill, 2010 which is discussed in the latter half of the paper is a welcome step in rethinking the law on sexual violence. The 42nd Report of the Law Commission in 1971 was the first step towards evaluation and reform of the Rape laws which had remained untouched since the year 1860. The Report made a valuable contribution by recommending the insertion of new provisions to tackle cases of Custodial Rape in which women are compelled to submit to sexual intercourse by the man in whose custody they may be. Such submission does not amount to consent and the Commission recommended a penal provision to punish such reprehensible conduct of public servants by the addition of Section 376C to the Code. The Commission was against criminalization of Marital Rape but recommended

penalization of sexual intercourse with a child-wife albeit with her consent. For the purpose of punishment, the Commission provided for two age brackets i.e between 12-15 and fewer than 12 with stricter sentences where the victim belonged to the second category. 14 years Rigorous imprisonment was suggested to make punishments harsher and more deterrent. The Report discussed the applicability of Section 90 to consent of a woman under Section 375 and called for widening the consent clause under this section.
Page | 15

CHAPTER -3LAWS AND POLICIES

Provisions of the Indian Penal Code:
In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively. Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place. Section.509 of IPC, comes into effect when there is an intention to insult the modesty of any woman by the offender by uttering any word, making any sound or gesture or by exhibiting any object, with the intention that such word or such sound be heard, or that such gesture or object be seen by such a woman, or by intruding upon the privacy of such a woman. Thus, this Section requires: 1. Intention to insult the modesty of a woman.
Page | 16

2. The insult be caused by i) Uttering any word or gesture, or

ii) Exhibiting any object with the intention that such word, gesture, or object be hear or seen by such a woman, or iii) By intruding upon the privacy of such woman.
Page | 17

Section. 375 therefore require: a) Sexual intercourse by a man with a woman;

b) The sexual intercourse must be under any of the six circumstances given in the section. Criminal Law Amendment Act, 1983: The Criminal Law Amendment Act has substantially changed Sections.375 and 376 of the IPC. Several new sections have been introduced therein- viz. Sections. 376(A), 376(B), 376(C), 376(D) of the IPC. Section. 376(A) punishes sexual intercourse with wife without her consent by a judicially separated husband. Section. 376(B) punishes for sexual intercourse by a public servant with a woman in custody. Section. 376(C) punishes sexual intercourse by superintendent of jail, remand house, etc. whereas, Section. 376(D) punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.

These new sections have been introduced with a view to stop sexual abuse of women in custody, care and control by various persons- which though not amounting to rape were nevertheless considered highly reprehensible. Attempt to Rape: In cases where an indecent assault is made upon the person of a woman, but where rape is not committed- the culprit is charged with Section.354 of IPC, because unless the Court is satisfied that there was determination in the accused to gratify his passion at any cost, and inspite of all resistance, such person is not charged with rape. Section.354 of the IPC prescribes punishment for anyone who assaults or uses criminal force to any woman with an intent to outrage her modesty. An indecent assault upon a woman is punishable under this section. Rape is punished under Section.376; but the offence under this Section is of less gravity than rape. And also because a person who is guilty of attempting rape cannot be allowed to escape with the lesser penalty of this section. An indecent assault, i.e., an assault which right minded persons would consider as indecent- accordingly any evidence explaining the defendants conduct, or whether any admission by him or otherwise is admissible to establish whether he intended to commit an indecent assault, as is stated under Section.21 sub clause (2) of the Evidence Act, which reads:
Page | 18

Section.21 (2): An admission may be proved by or on behalf of the person making it, when it consists of statements of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. Impediments to Justice: In the present circumstances when offences against women are on the rise- when young girls are raped by their doctors, by presidential guards in broad daylight, the definition of rape to be of any deterrence- falls extremely inadequate. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse. It also does not recognize other forms of sexual assaults- like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts. Adding to this is Section. 155(4) of the Evidence Act, which allows the victim to be questioned of her past sexual history- which the defense uses to humiliate the victim in the Courtroom. One of the major obstacles in delivering justice in rape cases is the poor quality of investigations. The reason behind this ranges from gender bias and corruption to the
Page | 19

general inefficiency of the police. In many cases the police have even refused to lodge the FIR or have lodged incomplete FIR. The victims are not taken for prompt medical examination, because in cases of rape, or Page | 20 attempt to rape- medical examination of the victim and of the accused soon after the incident often yields a wealth of corroborative evidence. Therefore, such an opportunity should not be lost by the police. The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. Inspite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A womans evidence without corroboration is not considered sufficient. The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles.

The Criminal Law (Amendment) Bill, 2010:

The penetration debate has occupied centre-stage in the Rape campaign and continues to do so. It has been discussed in the 172nd Report of the Law Commission, which was prepared on the directions of the Supreme Court as a result of a writ petition filed by one Sakshi (a womens organization) before the Supreme Court for directions concerning the definition of sexual intercourse in Section 375 of the IPC. The organization formulated precise issues in its petition which were then considered by the Law Commission in the form of recommendations in its report. Some of the recommendations were incorporated in the Criminal Law (Amendment) Bill, 2010. The Report recommended substitution of the term Sexual assault for Rape and including all kinds of penetration in the vagina, anus or urethra of another whether by a part of the human body or an object. The Report recommended insertion of a new Section 376 E to be named unlawful sexual contact. It was against a gender neutral law but highlighted the need to amend the law to punish child sexual abuse. Criminalization of Marital Rape would amount to excessive interference in the marital relationship as stated in the Report. The Report contained some useful recommendations concerning the procedural laws. It made suggestions to strengthen the female element in investigation and interrogation involved in rape trials. ( Female police officers should record the FIRs of the victims of rape under S 160 of the Criminal Procedure Code, the medical examination of the victim shall be conducted by a female registered medical practitioner under S 164A without delay and a detailed medical report was thereafter to be submitted to the Magistrate. The Report recommended deletion of S 155 (4) of the Indian evidence
Page | 21

act regarding impeaching the credit of a witness and corresponding changes in S 146 of the Act. )

Post the 172nd Report of the Law Commission, there were important amendments made in the procedural laws:
(i) S 155 (4) of the Indian Evidence Act was omitted vide the Indian Evidence (Amendment) Act, 2002. Prior to its omission the sub clause permitted the man prosecuted for rape to show that the Prosecutrix was of generally immoral character so as to impeach her credit as a witness. The Supreme Court in Gurmit Singhs case expressed strong disapproval of this tendency of the Courts in casting a stigma on the character of the Prosecutrix which often discouraged victims from reporting cases of rape. The Courts were expected to exercise self-restraint while recording findings which had repurcussions on the future of the victim and society as a whole. The Court ruled that even though the victim as habituated to sexual intercourse, it could not be inferred that she was of a loose moral character. She had a right to privacy and to refuse to submit herself to sexual intercourse with anyone despite her promiscuity in sexual behaviour in the past. She was not to be treated as a vulnerable object or a prey for sexual assault or as an accomplice to the crime. The deletion of this clause removed the hardship hitherto faced by the Prosecutrix as a result of doubts cast on her character during the trial.

Page | 22

(ii) A corresponding proviso was also added to S 146 of the Evidence Act which made it clear that in a prosecution for rape, it shall not be permissible to put questions in the cross examination of the Prosecutrix as to her general immoral character. These changes were

introduced to make the trial more humane and less humiliating for the victims. (iii) The Criminal Procedure Code was amended vide the Criminal Law (Amendment) Act, 2005 to provide for a medical examination of the accused and the Prosecutrix without delay, under S 53A and S 164A respectively. The examination of the victim was to be conducted by a registered medical practitioner, with the consent of the woman and a detailed report was to be prepared of the examination, containing particulars such as the victims age, marks of injury on her person, her mental condition etc and forwarded to the Magistrate. The various Reports, debates, campaigns and case law eventually culminated in the drafting of the Criminal Law (Amendment) Bill, 2010. The main features of the Bill are discussed and reviewed hereafter.
Page | 23

(i) Substitution of sexual assault for rape:

The Bill seeks to widen the scope of the statutory definition of rape and include within its purview all forms of penetration.

(ii) Rising of the age of consent to 18:

This would be a positive step and curb the increasing sexual exploitation of children.

(ii) Marital Rape Exception:

The Bill fails to cater to the long standing demand of criminalizing marital rape. The Sexual Offences Act of England has done away with this exception after the decision in

R v R. A husband and wife are now treated as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances. This exception is an anachronism in todays setup. Marital Rape is equally traumatic for the victim and not criminalizing it amounts to violation of the Right to life enshrined in Article 21 of the Constitution since Rape is a crime against basic Human Rights and the Right to Life. The notion of the wife impliedly consenting to intercourse with the husband by mutual matrimonial consent is now outdated and has been rejected by the legal system of countries around the world. Marriage cannot and should not provide husbands with a license to rape their wives. The Bill proposes to enhance the punishment provided under S 376A of the IPC for sexual intercourse with a judicially separated wife, from 2 years to a minimum of 3 years.
Page | 24

(iii) The Bill seeks to add several new clauses to S 376 (2) of the IPC:
It penalizes commission of sexual assault on a woman suffering from mental and physical disability, commission of persistent sexual assault and commission of sexual assault by a man being in a position of economic, social or political dominance on a woman under such dominance. These are welcome proposals but terms like persistent sexual assault and economic, political, social dominance need to be defined and clarified.

(iv) Gender Neutrality:

The Bill does not support a gender neutral rape law. While a gender-specific law leaves out a category of vulnerable persons like transgender and MSMs out of the protective sphere of law, a gender neutral law may be misused as a tool to harass women. A purely

gender neutral Rape law is not viable but an alternative solution could be sought by making the law gender neutral where children below a certain age are victims. In my opinion, the Indian mind is not sensitive or prepared enough to accept a gender neutral law. As long as the patriarchal notions of a male dominated society persist, a gender neutral law would not assist in achieving the desired objectives by curbing sexual offences. (v) The term consent needs to be defined in the Act as the very definition of the word has been debated in many cases before the Courts. An explanation should be added to the definition to differentiate between consent and mere passive submission. The definition laid down in the Rao Harnarain Singh Sheoji Singh vs The State by the Punjab Haryana
High Court has been followed by the Supreme Court in many subsequent cases and Page | 25

would be the most appropriate and comprehensive definition to incorporate in this Section.

(vi) Relation between S 376 and S 354:

Section 354 penalizes outraging the modesty of a woman. The essential ingredients of this section are the use or criminal force against a woman or assault of a woman and the intention of the accused to outrage her modesty or knowledge that her modesty was likely to be outraged. What constitutes modesty of a woman came up for consideration in a number of cases. In State of Punjab v Major Singh, the question that arose before the Court was whether a seven and a half month old baby girl possessed modesty which was liable to be outraged as defined in this section. The Court held that the essence of a

womans modesty is her sex, whatever here age may be and therefore even a seven and a half month old girl would possess modesty capable of being outraged. The punishment accorded under this section is severe and the maximum term which can Page | 26 be imposed is 2 years. It covers cases of non-penile pentration and a range of sexual behaviours and assaults such as with foreign objects or other parts of the body. The failure to include these penetrative acts within the definition of Rape has resulted in the sweeping away of many heinous sexual assaults under the nomenclature of outraging modesty and resultantly milder punishments. The current scheme of the Code contains provisions relating to sexual offences and assaults scattered over Sections 354, 375-377 and 509. The provisions call for streamlining this haphazard distribution and bringing all forms of sexual offences under a common umbrella. A scheme of gradation of the offences based on the type nature and severity of the offence involved may be inserted into the Code. The stringency of punishments should be proportionate to the intensity and severity of the offence. Accordingly, a scheme may be proposed as under: Grade I Verbal sexual assault, Eve teasing, Molestation Grade II Unlawful sexual contact which includes touch based offences and Sexual harassment at the workplace Grade III- All forms of penetrative acts like Rape and Sexual abuse of Minors Grade IV- Aggravated sexual assaults

Would the substitution of Rape with Sexual assault dilute the seriousness of the crime?

This question has been raised with reference to the recommendations in the 172nd Law commission report and the Bill of 2010. From the time of the enactment in 1860, the term Rape has been synonymous with a crime wreaking devastation and degradation on the victims honour and resulting in traumatic effects with the consequent loss of the chastity and jeopardizing the prospects of her marriage. Only in the last few decades, have we witnessed a gradual shift from viewing Rape as an the ultimate violation of self to violation of human rights of a woman. The substitution is required because the traditional definition of rape which is based on the common law one (and restricted to penile-vaginal penetration), is the statutorily accepted one in India. If the scope of penetration under this section is to be widened, a change in terminology is necessary. The safest solution, in my opinion would be to increase public awareness of the law relating to rape and other sexual offences and the punishments prescribed under the various offences before gradual shift in terminology. The sexual offences could all be clubbed into a separate chapter and then the gradation system could be applied as enumerated above. II. Recommendations The crucial question is what measures can the law take to ensure that justice is done in cases of sexual assault. Is the law as it stands in the statute book today adequate to deal with the heinous crime of rape and give the offenders the punishment they deserve? Among the myriad recommendations of the Law Commission in its comprehensive reports why have only a handful taken the shape of amendments?
Page | 27

Thus the underlying question is why the laws have remained largely ineffective in tackling rape and allied offences. A look at the Crime Statistics of the National Crime Records Bureau, 2009 reveal the dismal conviction rate of rape cases and the increasing rate of the crime.
Page | 28

Trends Observed In Rape in India (1953-2009)

It is imperative to understand the trends, incidence and rate of Rape incidents in India over the years for a proper analysis of the law in this regard. On the basis of data collected from 1971 to the latest figures generated in 2009 on various parameters of the crime of Rape, the following conclusions can be drawn : i) The rate of rape in the country is on the rise. Figures indicate a 760.4% change in the percentage of cases in 2009 over 1953. ii) As per 2009 statistics, crimes against women contribute approximately 9.6% to IPC crimes, with Rape contributing to over 1%. The number of reported cases has increased to from 18,359 in 2005 to 21,397 in 2009. The conviction rate is pegged at a dismal 27.8% of the 92% of cases charge sheeted. iii) Statistics show that in India a rape is committed every 29 minutes. iv) Madhya Pradesh continues to be the State with the highest number of cases of rape, closely followed by Uttar Pradesh, West Bengal and Delhi.

iv) A positive trend we observe is increase in the number of rape cases which are reported by the victims which might indicate the victims gradual breaking from the shackles of public humiliation, family pressures and the stigma traditionally associated with the offence of rape. However, much still remains to be done in this sphere to push up the number of reported cases and rightful convictions.
Page | 29

Sexual offence act, 2003 states as follows: - Rape

(1) A person (A) commits an offence if(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents . With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Honble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and its punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense. Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860 ) A man is said to commit rape if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :1. Against her will. 2. Without her consent. 3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 4. 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. 5. 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. 6. With or without her consent, when she is under sixteen years of age.
Page | 30

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 Page | 31 fifteen years of age, is not rape. Amendments to Rape Laws In 1983 were made to address mainly 3 issues: A. Minimum Punishment in rape cases (IPC Section 376 sub section 1) B. Special cases of rape (IPC Section 376 subsection 2 a-g) & A) C. Marital Rape (IPC Section 376 A) D. Abuse of official power (IPC Section 376, B, and C, D) A. Minimum Punishment (Section 376 subsection 1 of Indian Penal Code) 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 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 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.

Issues Prior to this amendment, minimum punishment wasnt specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment Page | 32 can be reduced. B. Special Cases Of Rape like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code) 1. Rape of a woman who is under twelve years of age [Sec.376 (2) (f)] Punishment 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. Issues Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area. 2. Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)

Punishment 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 Page | 33 special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused 3. Gang Rape (Sec.376 Subsection 2- g) 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. Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment 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. Exemption from burden of proof:

If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused. 4. Custodial Rape: (Sec.376 Subsection 2 a, b, c, d): Rape committed on a woman in their or their subordinates custody by a) Police officer (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; b) Public servant c) Management or the staff of a jail remands home or other place of custody or a womens or childrens institution d) Management or on the staff of a hospital Punishment 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 rovided that the court. To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. In response to the question What kind of emotional
Page | 34

response do eve-teasing /sexual harassment evoke in you, not a single woman ticked the category of indifferent. The survey of the Gender Study Group shows that most women felt disgusted, insulted and scared by any sort of harassment. Women often internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment. They not only doubt the validity of their own experiences but begin to believe that they themselves must be abnormal, cheap, indecent or deserving the violence that comes their way. Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault. Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB). A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the rape capital of the country by topping the list of such incidents. Going by the NCRB statistics, two women are raped in the country every hour. Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include
Page | 35

Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.
In State of Punjab vs. Gurmit Singh, the Supreme Court has advised the lower judiciary, Page | 36

that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , held that the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard. In Delhi Domestic Working Women v. Union of India, the Apex Court laid down the following broad guidelines: The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly. Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary. The police should be under 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.

 A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable. In all rape trials anonymity of victim must be maintained, as far as necessary. A Criminal Injuries Compensation Board should be established. Interim compensation should be given to rape victim even if the case is still going on in the court. Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence. Compensation should be provided to rape victim to rehabilitate herself.
In B. Gautam v. Shubra Chakraborthy , it was held that Rs. 1000 per month should be Page | 37

given to rape victim as an interim compensation. In Chairman, Railway Board vs. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation. An appeal was preferred and it was contended by the state that: a) The railway was not liable to pay the compensation to the victim for she was a foreigner.

b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226. Considering the above said contentions, the Supreme Court observed: Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution. The Supreme Court also held that the relief can be granted to the victim for two reasonsfirstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the Moral Code of Conduct- adopted by the General Assembly of the United Nation.
Page | 38

Indian Evidence Act

Evidence as per English Law According to Stephens the word evidence is used in three senses 1) words uttered, and thing exhibited in Court, 2) facts proved by those words or things , which are regarded as ground word of

inference as to other facts not so proved, and 3) relevancy of a particular fact to matter under inquiry Evidence as per Indian law
Page | 39

Section 3 of Indian Evidence Act 1872 defines evidence which is more definite meaning, viz, the first one. Evidence thus signifies only the instruments by means of which relevant facts are brought before the Court .Evidence is generally divided into three categories facts are brought before the Court. Evidence is generally divided into three categories: 1) oral or personal 2) documentary and, 3) material or real.

The definition of evidence must be read together with that of proved. The combine results of these two definition is that evidence under the Indian Evidence Act which is not only the medium of proof but there are in addition to this , number of other matter which the Courts has to take into consideration, when forming its conclusion. Thus the definition of evidence in the Indian evidence Act is incomplete and narrow. In State Of Maharashtra v. Dr. Praful B. Desai, the Supreme Court has held that under section 3 of the Indian Evidence Act, besides oral and documentary evidence, electronic record can also be admitted as evidence. The Court further stated that evidence ruled in criminal matters could be by way of electronic records, which would also include videoconferencing ,Hence what is no evidence a) a confession or the statement of one accessed under Section 342,CrP.C b) demeanor of witness(section 361, Cr.P.C ,O18,R,12,C.P.C)

c)local investigation or inspection (O.26,R,9);(O18,R18,C.P.C;sections 293 , 539B,CrP.C d) Facts judicially noticeable without proof (Section 56 ,57 Act)
Page | 40

e) Material objects(Section60) Further coming to the subject, English text writers has divide evidence into a) Direct evidence b) Indirect and circumstantial evidence Direct Evidence In this sense direct evidence is the evidence is that which goes expressly to the very point in question and proves it, if believed without aid from inference or deductive reasoning, e.g., eye witness to a murder is direct evidence Circumstantial evidence Circumstantial evidence is also known as indirect evidence. Circumstantial evidence is usually a theory, supported by a significant quantity of corroborating evidence. The distinction between direct and circumstantial evidence is important because, with the obvious exceptions (the immature, incompetent, or ), nearly all criminals are careful to not generate direct evidence, and try to avoid demonstrating criminal intent. Therefore, to prove the mens rea levels of "purposely" or "knowingly," the prosecution must usually resort to circumstantial evidence. The same goes for tortfeasors in tort law, if one needs to prove a high level of mens rea to obtain punitive damages.

Circumstantial Evidence: Soul Basis of Conviction Ordinarily circumstantial eidence cannot be regarded as direct evidence,and with this regard , there have been a popular misconception is that circumstantial evidence is less Page | 41 valid or less important than direct evidence. This is only partly true: direct evidence is generally considered more powerful, but successful criminal prosecutions often rely largely on circumstantial evidence, and civil charges are frequently based on circumstantial or indirect evidence. In practice, circumstantial evidence often has an advantage over direct evidence in that it is more difficult to suppress or fabricate. Thus the judiciary in following landmark judgment has ruled the important role played by circumstantial evidence which can later become the sole bases of conviction. In Ramawati Devi vs. State of Bihar wherein it has been held as follows:What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case........ As pointed out by Fazal Ali, J, in V.C. Shukla vs. State" in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As per Wadhwa, J. in Nalini's case The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible

conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Similarly in the famous case of Bodh Raj V. State of Jammu &Kashmir, Court held that Page | 42 circumstantial evidence can be a sole basis for conviction provided the conditions as stated below is fully staisfied.Condition are: 1) The circumstances from which guilt is established must be fully proved; 2) That all the facts must be consistent with the hypothesis of the guilt of the accussed; 3) That the circumstances must be of a conclusive nature and tendency ; a. That the circumstances should, to a moral certanity , actually exclude every hypotheis expectthe one proposed to be proved. Similary in Priyadharshani Matto case 'That I know the defendant is guilty, my hands are tied. As a judge, I can only go by the evidence provided by the investigative agencies.' These were the words of Additional Sessions Judge G P Thareja, who acquitted Santosh Kumar Singh, Delhi University law student who committed rape and murder of Priyadharshani Matto. But However the Delhi High court said that the overall analysis of the circumstances proved beyond doubt and the evidence is unimpeachable that Singh has committed rape and murder. "We are of the view to convict him (Singh) under section 302 (murder) and 376 (rape) of the Indian Penal Code," the Bench said. The Court observed that the trial court verdict was "perverse" and shocked the judicial conscience. The court said the evidence was

incompatible with Singh's plea of innocence and "we held him guilty of the offence he committed". Likewise in long-awaited State v Sidhartha Vashisht and Others- Held, this case is one Page | 43 that has shocked the confidence of the society in the criminal delivery system. Wrapping up the appeal in 25 hearings, a Bench comprising Justice R S Sodhi and Justice P K Bhasin, which had given death sentence to Santosh Kumar Singh in the Priyadarshni Mattoo case, also convicted Vikas Yadav, an accused in the Nitish Katara murder case, and Amardeep Singh Gill alias Tony, an executive in a multinational firm, for conspiracy and destruction of evidence. "We have no hesitation in holding that Manu Sharma is guilty of an offence under Section 302 (murder) of IPC for having committed the murder of Jessica Lal ... As also under Section 27 of the Arms Act," the Bench said allowing the appeal of the Delhi Police. "In the totality of circumstances adduced from material on record, the judgment under challenge appears to us to be an immature assessment

Reference 1) 2003(2)RCR (Criminal)SC771 2) 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 [1954] 3) 1983) 1 SCC 211 (pp. 214-15, Para 71980 (2) SCC 665 4) 1999 (5) SCC 253], (supra) at page 516 5) AIR 2002 SC 316 6) 20/12/2006 (DELHI HIGH COURT) 7) Circumstantial Evidence: Death, Life, And Justice In A Southern Town (Paperback) by Pete Earley 8) Indian Evidence Law By Justice Muneer

Page | 44

Page | 45

Reasonable probability to Prove

It is one thing for an accused to attack a Dying Declaration in a case where the prosecution seeks to rely on a Dying Declaration against the accused but it is altogether different where an accused relies on a Dying Declaration in support of the defense of the accidental death. The burden on the accused is much lighter. He has only to prove reasonable probability. Under these circumstances, the Dying Declaration could not have been rejected on the ground that it does not contain the endorsement of the doctor of the fitness of the lady to make the statement as the certificate of the doctor only shows that she was in a conscious state. The endorsement of a doctor afore quoted is not only about the conscious state of a lady but is that she made the statement in a conscious state.

Sole basis of Conviction

In order to involve the appellant in the alleged offence, the solitary evidence is the dying declaration made by the deceased. Though the dying declaration was made by her, repeatedly at an interval of one hour in between, the basic factum remains that the only material of prosecution is her Dying Declaration. If the dying Declaration would pass the test of scrutiny it can be relied on as the sole basis of conviction. There is no dispute on

the aforesaid legal proposition . It is well settled that conviction can be based on the dying declaration itself provided it is satisfactory and reliable. Conviction can be based on the strength of Dying Declaration without corroboration Page | 46 provided it is found trustworthy. However, before it is acted upon, it has to closely scrutinized since dying declaration given by a person before his death is a one sided affair and before placing reliance on it and closing case for seeking corroboration, it is not only desirable but also essential to eliminate the chances of suspicion after careful and close scrutiny . Though a Dying Declaration is entitled to a great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the Dying Declaration should be such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of tutoring, prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, a conviction can be based on that without any further corroboration. It cannot be laid down as an absolute rule of law that Dying Declaration cannot form a basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence The law is settled that there can be conviction on the basis of Dying Declaration and it is not at all necessary to have corroboration provided the court is satisfied that the Dying

declaration is truthful dying declaration and not vitiated in any other form. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify the accused and that he was making the statement without any influence and rancor. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without corroboration.
Page | 47

Latest amendment in Criminal Law (Amendment) Bill, 20121. On the basis of the recommendations of the Law Commission of India in its One Hundred Seventy Second report on Review of Rape Laws as well as the recommendations of the National Commission for Women for providing stringent punishment for the offence of rape, a High Power Committee was constituted consisting of the representatives of the Ministry of Women and Child Development, Ministry of Law and Justice, National Commission for Women, Law Commission of India and the Ministry of Home Affairs to examine the matter considering the suggestions of various quarters on the subject. The Committee submitted its report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft Bill was further examined by the Government. 2. The Criminal Law (Amendment) Bill, 2012 seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, inter alia, so as to (a) substitute sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code, and replacing the word

rape wherever it occurs by the words sexual assault, to make the offence of sexual assault gender neutral and also widening the scope of the offence of sexual assault; (b) include sections 326A and 326B in the Indian Penal Code to make acid attack a Page | 48 specific offence; (c) enhance the punishment under sections 354 and 509 of the Indian Penal Code, making the offence more stringent; (d) amend sections 154, 160 and 161 of the Code of Criminal Procedure, 1973 for providing women and male person under the age of eighteen years or above the age of sixty-five years more protections; (e) amend the Indian Evidence Act, 1872 by way of inserting a new section 53A wherein evidence of the character of the victim or of his or her previous sexual experience shall not be relevant or questioned. The Criminal Laws (Amendment) Bill, 2012 was introduced in the Lok Sabha on December 4, 2012 by the Minister of Home Affairs, Mr. Sushil Kumar Shinde. The Bill seeks to amend the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedures, 1973 (CrPC), and the Evidence Act, 1872. The Bill introduces three new offences under the IPC. First, it penalises public servants who knowingly disobey an order that prohibits them from conducting investigation or requiring the attendance of a person for the purpose of the investigation. The Bill provides a punishment of imprisonment for up to one year and a fine.

Second, the Bill introduces an offence related to acid attacks. It penalises the act of intentionally causing damage to the body of a person, or burning or maiming a person by throwing acid with imprisonment for minimum of 10 years that may extend up to life imprisonment and a fine of Rs 10 lakh. It penalises the attempt to cause harm by throwing acid with minimum of five and maximum of seven years of imprisonment. Third, the Bill replaces the existing offence of rape with that of sexual assault. Under the IPC, rape is defined as sexual intercourse with a woman without her consent. The Bill seeks to criminalise the following acts when committed without the consent of the other person: (a) penetration of a persons vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose; (b) manipulation of a body part of another person so as to cause penetration of the vagina, anus, urethra or mouth by any part of the other persons body; (c) cunnilingus and fellatio. The IPC provides a punishment of minimum of seven years and a maximum of life imprisonment and a fine for the offence of rape. It allows the court to impose a lower sentence. The Bill retains the punishment specified but takes away the power of the court to lower the sentence. The Bill increases the age of consent from 16 years to 18 years. It penalises the
Page | 49

commission of the above mentioned acts if the person is below 18 years of age, irrespective of whether the acts were committed with consent. Under the IPC, sexual intercourse by a man with his wife who is more than 12 years old but below 15 years of age was punishable with 2 years imprisonment. For sexual assault by a husband upon his

wife below 16 years of age, the Bill provides a punishment of a minimum of seven years and a maximum of life imprisonment. Under the IPC, there is an exception to the offence of rape when sexual intercourse is Page | 50 committed without the consent of the wife if she is above 15 years of age. The Bill increases this age to 16 years. Under the IPC, rape by a husband of his a wife during judicial separation is punishable with maximum two years imprisonment and fine. The offence is non-cognizable and bailable. The Bill provides a punishment of up to seven years and fine for sexual assault during judicial separation. It also changes the nature of the offence to a cognizable and non-bailable offence. The IPC provides a punishment of up to five years for public servants who engage in sexual intercourse with a woman in his custody. The Bill increases the punishment to a minimum of five and a maximum of 10 years. The Bill seeks to amend the Evidence Act to provide that in case it is proved that there was sexual intercourse between the accused and the victim in the accuseds custody, it would be presumed that it was without consent. It also states that evidence of the victim or of his or her previous sexual experience shall not be relevant on the issue of consent or the quality of consent. The Bill also increases the punishment for use of criminal force to outrage the modesty of a woman from up to two years with fine to up to five years with fine.

The Bill amends the CrPC to require that a woman police officer records evidence if evidence is being given by a woman who is a victim of sexual assault or assault to outrage her modesty.
Page | 51

The CrPC requires that all evidence in the course of trial be taken in the presence of the accused. The Bill seeks to create an exception for evidence of a victim of sexual assault who is below 18 years of age. It allows the court to take appropriate measures to ensure that the victim is not confronted with the accused.

Page | 52

CHAPTER -4JUDICIAL DECISION ON RAPE CASES As observed by Justice Arjit Pasayat:

While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female." Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassement) would try fulfilling their desire. However, it also not true that all cases of sexual harassement are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault. The question is not whether women have the right to bodily integrity, as this right is already adumbrated under Article.21 of the Constitution of India. Article.21, which guarantees the right to life and liberty to men and women both alike- but whether it is

really imperative to take a decisive step towards extirpating this evil and make the contemporary and future society a safe haven for women. According to the official statistics of 1991, one woman is molested every 26 minutes. Page | 53 These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof. In instances where women have reported such illegal and unwelcome behavior, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so. A) The Mathura Rape Case: Did it mark the watershed in the law on Rape? The year 1979 marked the beginning of the Womens Movement for reform which was centered on the Anti-Rape Campaign. The decision of the Apex Court in the landmark Mathura Rape case was vehemently criticised and galvanised the public campaign for reform of the obsolete law of rape in the IPC. Against this backdrop of mounting public pressure, the Law Commission came out with its 84th Report which dealt exclusively with Rape and sought to address the issues raised particularly after the Mathura case and in a way corrects the injustice which was done by the Court in this case. The Mathura rape case played an important role in the realisation of the need to sensitize the law as well as the attitude of the Judiciary towards such cases to avoid the victim of the crime from being victimised again by the Court and the loopholes in the law. In this

case, Mathura a tribal girl aged 14-16 was raped by two policemen within the police station. The Sessions judge acquitted the accused and held there was no satisfactory evidence, medical or otherwise to make out the offence of rape. Mathura was termed a shocking liar who was habituated to sexual intercourse and there was a world of difference between rape and sexual intercourse which in the present case was with the Prosecutrixs consent. On appeal, the High Court reversed the order of acquittal and convicted the accused on the grounds that consent and passive submission do not amount to the same thing. However, the decision of the High Court was reversed by the Apex Court which aquitted the accused taking into consideration the fact that Mathura had not raised any alarm for help and the absence of any injuries or signs of struggle on her body. The Court ruled that the alleged intercourse was a peaceful affair and with her consent and the onus was always on the Prosecution to prove ingredients of the offence beyond reasonable doubt which was not so in the Mathura case. The judgment was received with shock and outrage at. An Open Letter was subsequently addressed to the Chief Justice of India by four eminent law teachers, urging for a rethink on the decision and the prevalent law and highlighting the injustice done by the judgment. The authors of the letter viewed the decision as a sacrifice of basic Human rights and a blatant violation of the Right to Life under Article 21 of the Constitution of India with complete disregard for the socio-economic and legal awareness of the victims of such a crime. The Mathura decision outcry coupled with the intensification of pressure
Page | 54

by the legal fraternity, social organizations and the general public led to the 84th Report and eventually the Criminal Law (Amendment) Act, 1983. The 84th Report on Rape and Allied offences focussed on the controversial consent Page | 55 issue while emphasizing that consent was an antithesis of rape and consent must be real and not vitiated by any duress. Submission to intercourse or a mere act of helpless resignation in the face of inevitable compulsion could not be deemed to be consent. The Report recommended changes in procedural laws as well especially in the area of medical examinations of victim and accused, recording of statements of victims and favoured an investigation into such cases by women police officers to give the victim a sense of security during the investigation.

Page | 56

An Analysis of landmark decisions Post-Mathura

It is interesting to note that the consent vs submission debate which was the main ground for acquittal of the accused in the Mathura case had already been discussed and the issue clarified in a decision of the Punjab Haryana High Court It was laid down in Rao Harnarain Singh Sheoji Singh vs The State , A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law. Consent as a defence to a charge of rape requires voluntary participation after the exercise of intelligence based on knowledge of the moral quality of the act and the free exercise of choice between resistance and assent. There is a difference between consent and submission. Every consent involves submission but not vice-versa. Consent in order to be a valid defence to rape, must be an act of reason accompanied with deliberation after the mind has weighed the good and evil and with the capacity to withdraw assent as per ones will. Consent therefore implies the exercise of a

free and untrammeled right to forbid or withhold what is being consented to, it is always voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. A reading of this decision naturally leads to questioning the correctness of the Mathura case judgment. If case law had addressed the consent issue adequately had the Court should not the Court not erred in acquitting the accused notwithstanding that the decision referred to in this case was not pronounced by the Apex Court itself but a Court subordinate to it? B) Examining the Amendments in the law post Mathura: Have they served the desired purpose? The Criminal Law (Amendment) Act, 1983 brought about major changes in the laws on Rape. Hitherto, rape of a woman was treated as an ultimate violation of the self. Such a narrow and conservative approach ignored the Human rights violation aspect and equated Rape with loss of chastity and diminishing prospects of the victims marriage and future and the accompanying social stigma or ostracism in some cases. The Act of 1983 attempted to look upon Rape as a heinous crime which is traumatic for a woman and results in violation of her rights along with humiliation and degradation. Some of the important changes brought about by the Act to strengthen both substantive and procedural law provisions can be summed up as below :
Page | 57

(i) Burden of proof of innocence on the accused: The Evidence Act was amended by adding S114 A for drawing a presumption as to want of consent of the woman in case of a prosecution for Rape under Section 376 (2) (a), (b), (c), (d), (e) and (g). (ii) Trial in camera: S 327 of the Criminal Procedure Code was amended by insertion of Subsection 2 providing for in camera trials and prohibition of publication of trial proceeding without the consent of Court in rape cases. (iii) Prohibition of disclosure of identity of the victim: under S 228 A of the IPC. (iv) Custodial Rape: A new category of offences under S376B-D has been created to penalize persons taking undue advantage of their authority and obtaining consent of a woman to sexual intercourse under compulsion (v) Character assassination of Prosecutrix is prohibited : by insertion of a Proviso clause to S 146 of the Evidence Act vide the Evidence (Amendment) Act, 2002 which prohibits putting forth of questions about the Prosecutrixs character in cross examination. (vi) Minimum punishments for rape have been enhanced to 7 years and 10 years under S376 (1) and (2) respectively. The Act was a welcome change in some respects but it failed to address formidable issues which still came up before the Court in rape cases. The definition and scope of the term penetration, corroboration, consent and marital rape largely remained grey areas. There is abundant case law on the points mentioned above, however, a statutory provision or an amendment is required to clarify and crystallize the law on these points.
Page | 58

In Rafiq v State of UP, the question before the Court was whether absence of injuries on

the Prosecutrix is fatal to the Prosecution and whether corroboration of her testimony is required in such a case. The Supreme Court laid down that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
In Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat, the Supreme Court held that Page | 59

Corrboration is not a sine-qua-non for conviction in a rape case. In the India setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, is adding insult to injury. Further, viewing the evidence of the victim of rape with the aid of doubt-tinged glasses is to justify the charge of male chauvinism in a male dominated society. Thus there is great weight attached to the evidence of a victim of a sexual offence since a woman, especially in our tradition bound society will rarely make a false allegation for fear of being stigmatized or losing her reputation and ruining her prospects of marriage and being considered promiscuous. The corroboration rule was followed by the Courts in a slew of cases but is yet to find its place in the statute book s."

The judgments passed post the Mathura campaign and the 1983 Amendment are a mix of positive and negative ones. While the Judiciary displayed sensitivity in a number of rape cases brought before it, there are a substantial number of cases where the attitude of the Court and the leniency in punishing the offenders is disheartening and outrageous. The Courts were warming up to the fact that in a rape trial, the Prosecutrix was a victim of the crime and she was not to be treated on par with an accomplice.

The period 1990-2000 witnessed several cases where the Supreme Court stepped in and reversed the unjust acquittals by the lower Courts. The Apex Court criticised the insensitive attitude of the Trial Courts which failed to consider human psychology and behavioural probabilities in evaluating evidence resulting in miscarriage of justice. The corroboration rule was reiterated and emphasis was laid on the fact that minor discrepancies in the statement of the Prosecutrix should throw out an otherwise reliable prosecution case. Corroborative evidence is not an imperative component of judicial credence in every case of rape unless there were compelling reasons which necessitated looking for corroboration. The Courts could not cling to a fossil formula and insist upon corroboration. The Gurmit Singh case was undoubtedly a victory for the Womens Movement but a close study of several decisions of the Courts reveals a disturbing trend- in a majority of the cases,the Trial courts impose a severe penalty on the accused and on appeal to the concerned High Court, the sentence of punishment is almost always mitigated. 1) In one case the High Court reduced the sentence of 10 years RI imposed by the Trial Court on the accused for an offence under S 376 IPC to 4 years RI without stating any special and adequate reasons as required under S 376 (2). The Supreme Court restored the sentence of the Trial court taking into account the heinous nature of the crime committed on a girl of 7 and the cogent medical evidence in the case. The insensitivity of the High Court came under fire. The Court made it clear that the magnitude of punishment should be in proportion to the gravity of the offence. The Courts sentence must answer the public cries for justice and reflect the public abhorrence of the crime committed. The measure of punishment must not be based
Page | 60

on the social status of the accused or the victim but the conduct of the accused and seriousness of the crime. The judicial system should not encourage and embolden criminals but deter them from Page | 61 committing such crimes and provide courage to the victims to report such incidents. Similar views were expressed by the Apex Court in State Of Madhya Pradesh vs Balu where the Court criticized the ridiculously low sentence imposed by the High Court and disagreed with its misplaced sympathy. Case law might indicate the increasing sensitivity of the Apex court to such cases but it is disturbing to see the lack of uniformity or consistency in the approach and decisions of the Courts. Though principles on contentious issues were laid down in many cases, Rape still remained in the realm of conservative notions of a male-dominated patriarchal society. Underlying attitudes and the balance of power between the genders called for an evaluation. The period 1983-2011 has seen little reform in the area of Rape law. The Criminal Law (Amendment) Act, 2005 and the Evidence (Amendment) Act, 2002 brought about certain changes but critical defects in the law remain uncorrected. The Penetration debate: The most vital ingredients to prove the offence of rape are a) Sexual intercourse by a man with a woman against her will b) Her lack of consent Penetration is sufficient to constitute sexual intercourse necessary to the offence of rape, as per the Explanation to S 375. It is important to note that the depth of the penetration is

immaterial and even a case of partial penetration would amount to Rape on satisfaction of the other ingredients. The narrow interpretation given by the Courts to the term penetration was the subject of consideration of the 156th and the 172nd Law Commission Reports and was widely debated by the Womens organizations, lawyers and social activists. They pressed for moving beyond the restrictive interpretation and widening the scope of the section to include all forms of penetration within its ambit. The expansion of the definition of Rape was argued at length in Smt. Sudesh Jhaku vs K.C.J. and Others. The main questions which came up for consideration before the Court were whether Rape as defined in S375 of the IPC is confined to only penile penetration of the vagina or it also includes penetration of a bodily orifice (vagina/anus/mouth) by a penis, part of the body or an object? It was contended that since the words sexual intercourse and penetration were not defined anywhere in the Code, it would be unjust for the Court to adopt an arbitrary interpretation of the terms. The Delhi High Court however refused to accept an artificial extension of the statutory definition of Rape and held that it was based on the widely accepted definition of sexual intercourse under Common Law, which was confined only to penile-vaginal penetration. The Court erred in its decision in the case, in my opinion. It failed to take note of the alarming increase in the number and the variety of sexual abuse in the country with the changing times. The Court overlooked the larger issues of degradation, humiliation, trauma and violence a woman was equally subjected to in case of penetration by other parts of the body or foreign objects. The accused would be liable for outraging of
Page | 62

modesty under S 354 or for unnatural offences under S 377 for such sexual offences. Perpetrators thus escaped with lighter sentences for offences under these Sections. In Rupan Deol Bajaj Vs. K PS.Gill1, a senior IAS officer, Rupan Bajaj was slapped on Page | 63 the posterior by the then Chief of Police, Punjab- Mr. K P S.Gill at a dinner party in July 1988. Rupan Bajaj filed a suit against him, despite the public opinion that she was blowing it out of proportion, along with the attempts by all the senior officials of the state to suppress the matter. The Supreme Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three months Rigorous Imprisonment under Sections. 294 and 509 of the Indian Penal Code. In N Radhabai Vs. D. Ramchandran2, When Radhabai, Secretary to D Ramchandran, the then social minister for state protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favour, with back pay and perks from the date of dismissal. Vishakas case:3 It was in 1997 in Vishaka Vs. State of Rajasthan and others, that for the first time sexual harassment had been explicitly- legally defined as an unwelcome sexual gesture or behaviour whether directly or indirectly as 1. Sexually coloured remarks

2. 3. 4. 5.

Physical contact and advances Showing pornography

Page | 64

A demand or request for sexual favours Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

It was in this landmark case that the sexual harassement was identified as a separate illegal behaviour.The critical factor in sexual harassement is the unwelcomeness of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered. In the abovementioned case, the judgment was delivered by J.S.Verma. CJ, on behalf of Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed by Vihska- a non Governmental organization working for gender equality by way of PIL seeking enforcement of fundamental rights of working women under Article.21 of the Constitution. The immediate cause for filing the petition was the alleged brutal gang rape of a social worker of Rajasthan. The Supreme Court in absence of any enacted law (which still remains absent- save the Supreme Court guidelines as stated hereunder) to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassement, laid down the following guidelines:

1.

All the employers in charge of work place whether in the public or the private

sector, should take appropriate steps to prevent sexual harassement without prejudice to the generality of his obligation, he should take the following steps: a) Express prohibition of sexual harassment which includes physical contact and
Page | 65

advances, a demand or request for sexual favours, sexually coloured remarks, showing pornographic or any other unwelcome physical, verbal/ non-verbal conduct of sexual nature should be noticed, published and circulated in appropriate ways. b) The rules and regulations of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. c) As regards private employers, steps should be taken to include the aforesaid

prohibitions in the Standing Orders under the Industrial Employment (Standing Orders) Act, 1946. d) Appropriate work conditions should be provided in respect of work leisure, health,

hygiene- to further ensure that there is no hostile environment towards women and no woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. 2. Where such conduct amounts to specific offences under the Indian Penal Code or

any other law the employer shall initiate appropriate action in accordance with the law, by making a complaint with the appropriate authority.

3.

Victims of sexual harassment should have the option to seek transfer of the

perpetrator or their own transfer. As stated by the Supreme Court, these guidelines are applicable to: a) The employer or other responsible persons or other institutions to prevent sexual
Page | 66

harassment and to provide procedures for the resolution of complaints; b) Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity- in the government, private or organized sector come under the purview of these guidelines. Preventive Steps: 1. Express prohibition of sexual harassment should be notified and circulated. 2. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector. 3. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers. 4. Provision should be made for appropriate work conditions for women. Procedure pertaining to filing of complaints: 1. Employers must provide a Complaints Committee which is to be headed by a woman; of which half members should be women.

2. Complaints Committee should also include an NGO or other organization- which is familiar with sexual harassment. 3. Complaints procedure should be time bound. 4. Confidentiality of the complaints procedure has to be maintained. 5. Complainant or witnesses should not be victimized Or discriminated against- while dealing with complaints. 6. The Committee should make an annual report to the concerned Government
Page | 67

department and also inform of the action (if any) taken so far by them. Miscellaneous Provisions: 1. Guidelines should be prominently notified to create awareness as regards the rights

of the female employees. 2. The employers should assist the persons affected, in cases of sexual harassment by

outsiders or third parties. 3. Sexual harassment should be discussed at workers meetings, employer-employee

meetings and at other appropriate forums. 4. Both Central and State governments are required to adopt measures including

legislations to insure that private employers also observe these guidelines. A K.Chopras Case: 4

A K.Chopras case, is the first case in which the Supreme Court applied the law laid down in Vishakas case5 and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexual harassment of a subordinate female employee at the place of work on the ground that it violated her fundamental right guaranteed by Article.21 of the Constitution. In both cases the Supreme Court observed, that " In cases involving Human Rights, the Courts must be alive to the International Conventions and Instruments as far as possible to give effect to the principles contained therein- such as the Convention on the Eradication of All forms of Discrimination Against Women, 1979 [CE DAW] and the Beijing Declaration directing all state parties to take appropriate measures to prevent such discrimination." The guidelines and judgments have identified sexual harassment as a question of power exerted by the perpetrator on the victim. Therefore sexual harassment in addition to being a violation of the right to safe working conditions, is also a violation of the right to bodily integrity of the woman. Provisions of the Indian Penal Code: In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively. Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has
Page | 68

often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place. Section.509 of IPC, comes into effect when there is an intention to insult the modesty of any woman by the offender by uttering any word, making any sound or gesture or by exhibiting any object, with the intention that such word or such sound be heard, or that such gesture or object be seen by such a woman, or by intruding upon the privacy of such a woman. Thus, this Section requires: 1. 2 i) Intention to insult the modesty of a woman. The insult be caused by Uttering any word or gesture, or
Page | 69

ii) Exhibiting any object with the intention that such word, gesture, or object be hear or seen by such a woman, or iii) By intruding upon the privacy of such woman. Rape laws in India: "The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and

suddenly reach the last chapter and claim to have understood and applied it." - Kiran Bedi., Joint Commissioner, Special Branch. In the Mathura rape case,6 wherein Mathura- a sixteen year old tribal girl was raped by Page | 70 two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. The case came for hearing on 1st June, 1974 in the sessions court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was habituated to sexual intercourse her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape. On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse. However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent. In Mohd.Habib Vs State7, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Courts judgment. Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi, wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit. In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour.
Page | 71

With the help of her parents and an Advocate, Sakina filed a suit in the High Courtgiving the names of the upper echelons of the bureaucracy and society of Kerala. The suit was squashed by the High Court, while observing that it is improbable to Page | 72 believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted. Whereas, in State of Punjab Vs. Gurmit Singh8, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar9, held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard." Also the Bandit Queen case10, which depicts the tragic story of a village girl. Phoolan Devi- who was exposed from an early age to the lust and brutality of some men. She was married to a man old enough to be her father. She was beaten and raped by him. She was later thrown out of the village- accused of luring boys of the upper caste. She was arrested by the police and subjected to indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the leader of a gang of Thakurs- who

striped her naked and paraded her in front of the entire village. This is truly one story that shows the apathy of the existing society. In Chairman, Railway Board Vs. Chandrima Das11, a practicing Advocate of the Page | 73 Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation. An appeal was preferred and it was contended by the state that: a) The railway was not liable to pay the compensation to the victim for she was a

foreigner. b) That the remedy for compensation lies in the domain of private law and not public have approached the Civil Court for seeking damages; Article.226.

law. i.e. that the victim should

and should have not come to the High Court under

Considering the above said contentions, the Supreme Court observed: "Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of

rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution." The Supreme Court also held that the relief can be granted to the victim for two reasons- Page | 74 firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the Moral Code of Conduct- adopted by the General Assembly of the United Nation. After having studied the case laws, it is necessary to also study the definition of Rape as given in the Indian Penal Code, 1860. As per Section.375 of IPC a man is said to commit the offence of rape with a woman under the following six circumstances: 1. 2. 3. Sexual intercourse against the victims will, Without the victims consent, With her consent, when her consent has been obtained by putting her or any person

that she may be interested in fear of death or hurt, 4. 5. With her consent, when the man knows that he is not her husband, With her consent, when at the time of giving such consent she was intoxicated, or

is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent, 6. With or without her consent when she is under sixteen years of age.

Further explanation provided to the section states that penetration is sufficient to constitute the sexual intercourse necessary to constitute the offence of rape, whereas the exception leaves out marital rape altogether if the wife is not under fifteen years of age. Marital Exception:
In R Vs. R12, the House of Lords widened the scope of criminal liability by declaring that Page | 75

the husband could be charged as a principal offender in the rape of his wife. This decision seems to have obliterated the protection of the husband from such prosecution under the doctrine of marital exemption. This exemption was based upon the belief under which the wife was regarded as the husbands chattel. She was supposed to have given a general consent to her husband as a natural implication of the marriage. This has now become an outdated view of marriage in England. However, the above decision of the House of Lords has not been followed in Indiawhere marital exemption to the husband still exists.
As observed by Krishna Iyer, J. in Rafiques case13:

"When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame judicial response to Human Rights cannot be blunted by legal bigotry." Therefore rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application.

Failure of law reflects the failure of the society to protect and serve humanity. In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases14: 1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance. 2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help. 3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated. 4. A list of lawyers willing to act in these cases should be kept at the police station. 5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall 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 victim must be maintained
Page | 76

7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses. 8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape. The National Commission for Women be asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes. As observed by Justice Saghir Ahmad, "Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status." Conclusion: The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not
Page | 77

going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment. However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them. It is outright clear that sexual offences are to be excoriated, but if death sentence is given to such convicts- so as to deter the rest, then no doubt that the graph of rape cases will come down considerably- but it may also happen that those who commit such offencessimply to leave no witnesses or evidence, may even kill their victims and dispose off their bodies (whereas it is observed that in most cases- it is the victim who is the only source of evidence in most cases), thereby frustrating the main object of the Indian Penal Code and the legislature. Studying the laws, the process, the application of those laws, one thing is certain- the entire structure of justice needs an over haul, otherwise the victim shall no longer the woman, but humanity.
Page | 78

___________________________________

1. 2. 3. 4. 5. 6. 7. 8. 9.

1998 S.C 1995 S.C AIR ,1997 S.C 3011 Apparel Export Promotion Council Vs. AK.Chopra AIR, 1999 S.C 625 Vishaka Vs. State of Rajasthan and others AIR, 1997 S.C 3011 Tukaram, 1978 Cr.LJ 1864 S.C 1989 Cr.LJ 137 Delhi (1996) 2 SCC 384 (1991) 1 SCC 57

Page | 79

10. Bobby Art Int Vs. Om Pal Singh Hoon (1996) 4 SCC 11. AIR, 2000 SC 988 12. (1991) 4 ALL ER 481 (HL) 13. 1980 Cr.LJ 1344 SC 14. Delhi Domestic Working Womens Forum Vs. UOI (1995) 1 SCC 14

Other notable cases State Kashmir Shopian rape and murder case

Case Name Kunan Poshpora incident 2009

Year 1991

Kerala Kiliroor Sex Scandal Soumya rape and murder case Maharashtra

Suryanelli rape case 2003 2012 Aruna Shanbaug case

1996

1973

Jalgaon rape case Mathura rape case Tulasa Thapa Manipur Orissa Rajasthan Bhanwari Devi Uttar Pradesh Tamil Nadu

1982 - 1994 1974 - 1981 1982 Thangjam Manorama Anjana Mishra rape case Ajmer rape case 1992 Imrana rape case Vachathi case 2005 1992 2004 1999 1992
Page | 80

CHAPTER -5NEED FOR REFORM OF RAPE LAWS

The rape and murder of a 23-year-old student last month has shocked many Indians and reignited a national conversation about the threats women face. But its a debate thats been going on, off and on, for at least 40 years. And so far progress toward a safer environment for women has been piecemeal.

Womens groups say there have been victories. In 1972, a 16-year-old tribal girl named Mathura was allegedly raped in a police station. Mathuras family lodged a criminal complaint against two officers. The Supreme Court Page | 81 eventually threw out the case, saying Mathuras body bore no outward signs of rape. The ruling sparked protests by womens groups across the country. Four eminent law professors wrote an open letter of complaint to the chief justice about the ruling. That was the first case that led to public protests and a reform of the law, said Vrinda Grover, a lawyer and womens rights activist. The movement led to amendments, in 1983, to the criminal law that dealt with rape. The changes included a new category of rape for offenses committed when a victim is in custody of the state. In such a situation, the law said a court should presume a woman who says she did not consent is telling the truth. Previously the law was silent on the matter of rape in detention. The amendments also ruled that rape trials should be conducted as closed proceedings and banned the publication of victims identities. A judge Monday read charges behind closed doors to the five men accused of raping the New Delhi student Dec. 16; she later died in a Singapore hospital from her injuries. An official at the court said the charges included murder, rape and other offenses. A sixth suspect is being tried in a juvenile court.

In other cases, the public outcry over sexual assault that involved murder has been such that the courts have sentenced the perpetrators to death, which is rarely used in India and is not standard for murder convicts. In 1978, a brother and sister, Sanjay and Geeta Chopra, were found murdered on a desolate, rocky outcrop of scrubland that runs up the Western edge of New Delhi. Two men had kidnapped the pair, children of a navy captain, from near Connaught Place in central Delhi. The men raped Geeta, who was 16, and murdered her and her brother, aged 14. Like the latest Delhi rape, the incident sparked large street protests over the lack of safety on Delhis streets. And also, as with recent protests, many of those present wanted the death penalty for the accused. After the discovery of the dead bodies, the Press played up the murders under screaming headlines blaming the police for its inefficiency, the Delhi High Court said in its ruling on the case. The perpetrators were found guilty of murder and hanged in 1982. Currently, the harshest penalty for rape is a life sentence. In the current case, the five men have been charged with murder and could face the death penalty if convicted. The juvenile faces a maximum three-year sentence. In 2002, an amendment to rules governing the presentation of evidence disallowed crossexamination of rape victims that raised questions about their moral character or previous sexual experience.
Page | 82

Last year, Indias Parliament passed the Protection of Children from Sexual Offenses Bill, which sets up special courts for juvenile victims of sexual abuse among other measures. But womens rights groups say more needs to be done to ensure fair trials for rape victims. Indian law, under section 375 of the criminal code, terms rape as penetration without consent. Courts have interpreted that to mean the penetration of a womans vagina by a penis. Courts have thrown out attempts to allow for other kinds of rape and sexual assault to come under the definition. Sudha Sundararaman, general secretary of the All India Democratic Womens Association, a nonprofit organization, says the current wave of anger sparked by the students death on Dec. 29 might lead to reform of the law. We feel, we hope, there may be a change in this, she said. Another area of contention is that Indias laws dont recognize rape inside a marriage, which activists say is common. A review of Indias rape laws by the Law Commission of India in 2000 said changing the law on this would amount to excessive interference with the marital relationship. Ms. Sundararaman said there needs to be fast-track courts to push through pending rape cases, which womens activists estimate number between 40,000 and 100,000. The
Page | 83

government, she added, should set a three-month deadline within which cases have to be completed. In the wake of the latest rape, the government has promised changes. It has set up a Page | 84 commission under a former Supreme Court chief justice that will present its recommendations later this month. And the government established a special fast-track court at the Saket district court complex to try the five adults charged in last months incident in New Delhi. One question, though, is how effective the changes put in place since the Mathura case have been in reducing rapes and improving conviction rates. In the early 1970s, fewer than 3,000 cases were registered with police; that had jumped to over 20,000 by 2010. Womens groups say the figures reflect both an increase in rape as women venture more into public spaces, but also the fact that more women are now bold enough to report instances of rape. Conviction rates also have dropped in the same period. In 1974, there were 996 convictions for rape, or 39% of cases where trials were completed that year. In 2011, there were 4,072 convictions, representing 26% of cases.

Justice Verma leaves behind legacy of tougher rape law

The main architect of India's new anti-rape law died late on Monday, leaving a legacy of tougher punishments for sex crimes, the creation of new offences under the law, and measures to make the police more accountable when responding to rape victims.

Former Chief Justice J.S. Verma, 80 -- who headed a panel which drew up a blueprint on tackling gender violence after public outcry over a fatal gang rape in December -- died in a hospital on the outskirts of the capital after suffering multiple organ failure. His panel's recommendations were described as "path-breaking" and "progressive" by women's groups and were used by the government to draft a new law to crack down on rising violence against women. "Justice Verma was held in great respect as a public figure, not only for his vast understanding and knowledge of law and the many path-breaking judgments he delivered as a Judge, but also for his deep sensitivity to the concerns of the common man and his fierce commitment to the public good," a statement from Prime Minister Manmohan Singh's office said. "He (The Prime Minister) especially remembered the extraordinary leadership of Justice Verma as Chairman of the committee that was set up to suggest changes in law for dealing more effectively with offences against women," it added. Working with a small group of young lawyers, Verma and the other panel members, Leila Seth and Gopal Subramaniam, delivered their recommendations in a massive 630page report in January, after just 29 days' work. He said his panel had taken into account more than 80,000 responses on tackling sex crimes it had received from the public, women's rights groups, academics, gender experts and lawyers.
Page | 85

Page | 86

Controversial Recommendations
He called for tough jail terms for gang rape; for acid attacks, stalking, voyeurism and trafficking to be made specific offences; and for dereliction of duty by the police or medical authorities in responding to a rape victim to be made a criminal offence. Many of his recommendations were considered controversial in this traditional country where patriarchal attitudes remain deep-rooted, particularly across the vast rural areas where more than half India's population lives.

His suggestion that marital rape be made a criminal offence was rejected, right-wing politicians arguing that it would "destroy the Indian family" and that if a man raped his wife the matter could be settled through counseling. Other recommendations, such as lowering the age of consent to 16, prohibiting politicians facing rape charges from standing for election, and reviewing the army's sweeping powers in conflict areas, were also ignored by parliamentarians. As a result, women's groups said the new anti-rape law which was passed last month was welcome, but certainly not the watershed law they had wanted, and had hoped would be based on Verma's report. In a five-decade career, Verma was Chief Justice of India from 1997/98, as well as chairman of the National Human Rights Commission and the News Broadcasters Standards Authority. He is credited with several landmark judgments including one which has led to sexual harassment in the workplace being made a criminal offence. In his last public appearance earlier this month, at which his panel received a "Justice for Women" award, Verma said efforts to combat gender abuse needed to continue even after the law was enacted.
Page | 87

Page | 88

A Practical Approach towards Redefining.

The narrow legal definition of rape, recently reiterated in the Sakshi case, has been criticized by Indian and international women's and children's organizations, who insist that broader interpretations are needed to protect victims, and also to serve justice. Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are sexual intercourse with a woman and the absence of consent. This definition

therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with criminal assault on a woman with intent to outrage her modesty and Section 377 IPC, covering carnal intercourse against the order of nature. The narrow definition of rape has been criticized by Indian and international womens and childrens organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court in Sakshi v. Union of India : ... the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is ... contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour. But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion. In
Page | 89

the present case, the respondent authorities has been trying to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. But it has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offenses. A plain reading of Section 375 of the IPC would make it apparent that the term "sexual intercourse has not been defined and is, therefore, subject to and is capable of judicial interpretation. And the Section also does not in any way limit the term penetration to mean penile/vaginal penetration. Limiting the understanding of "rape" to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 21 of the Constitution. Sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.
Page | 90

A purposive approach is being adopted in some of other countries so that the criminals do not go untouched on mere technicality of law. A strong reliance was also placed on some decisions of House of Lords to substantiate the contentions and the most notable being R v. R where it was held as under: The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having unlawful intercourse with a woman without her consent, the word 'unlawful' is to be treated as mere surplus age and not as meaning outside marriage, since it is clearly unlawful to have sexual intercourse with any woman without her consent. Even international law now says that rape may be accepted as "the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person." Similarly, Article 2 of the Declaration on the elimination of Violence Against Women reads as follows: Violence against women shall be understood to encompass but not limited to ... Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female
Page | 91

genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation. Judgments by the Australian courts reveal that insertion of objects into the victim's Page | 92 vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis on the word "slightest" reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt.

Comparative study Rape law in India and World

Rape is a heinous crime in our world. Now days all civilized country enacted their own law on this topic. India is not exception of this, it also enacted it's own law under Indian penal code.1860. Section 375 defines rape under our law which is known by all of us. Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of

another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called "assault by penetration", which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person's consent.
Page | 93

Article 222-23
Any act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise, is rape. Rape is punished by fifteen years' criminal imprisonment.

Article 222-24
Rape is punished by twenty years' criminal imprisonment 1 where it causes mutilation or permanent disability; 2 where it is committed against a minor under the age of fifteen years; 3 where it is committed against a person whose particular vulnerability, due to age, sickness, to a disability, a psychic or physical deficiency or to a state of pregnancy, is apparent or known to the perpetrator;

4 where it is committed by a legitimate, natural or adoptive ascendant, or by any other person having authority over the victim 5 where it is committed by a person misusing the authority conferred by his functions; 6 where it is committed by several persons acting as perpetrators or accomplices; 7 where it is committed with the use or threatened use of a weapon.
Page | 94

Article 222-25
Rape is punished by thirty years' criminal imprisonment where it caused the death of the victim. The first two paragraphs of article 132-23 governing the safety period are applicable to the offence set out under the present article.

Article 222-26
Rape is punished by imprisonment for life when it is preceded, accompanied or followed by torture or acts of barbarity. The first two paragraphs of article 132-23 governing the safety period are applicable to the offence set out under the present Article. So, in France we can say that in case of rape followed by torture and acts of barbarity have some special section, which guide those. From the above study we can say that our Indian law need some reform from various aspect such us, include woman in the definitions of rape as rapist and punished for the same when they help some one directly to commit such offence.

Page | 95

A case study need on capital punishment in context of Rape

In India, these days, rape cases are found in daily news. We can see many cases like these in trains in Mumbai in front of everyone and no one coming for help instead. National capital Delhi has become the most unsafe place for girls where one rape happens almost every day. In other parts of the country too, this cases are very common like in UP and Bihar and in most of the cases, the accused get bailed because of having good social power. Our police department, due to their weakness and corrupted minds, fail to rescue these girls. Putting to rest the controversy over whether a person charged with rape and murdering his victim should be sentenced to the extreme penalty of death; the Supreme Court has ruled that in such a rarest of rare case an accused cant be given the capital

sentence but life term till the end of his life. This ruling has given a new thrust to the raging debate on compulsorily giving the extreme sentence of death to a rapist. But conscious of the consequences of such a legislation that could lead to serious ramifications, it is argued that the victim could lose the life too after khaving suffered the worst kind of brutality. Rape is committed by a person, he has intercourse with a women against her will or without her consent .The frequency of crime against women ,the inadequacy of the law of rape manifested in number of judgments and the strong protests by social activists ,jurist and judges and scholarship general and women organization in particular, against the failure of law to protect victim of rape. Death for rapist has become a familiar theme in parliament whenever the matter comes up for discussion in the week of large scale rapes taking place in the country .The existing penal provision of rape under sec. 376, IPC would reveal that punishment may extent up to life imprisonment with section minimum imprisonment for 7year and sub section (2) Imprisonment for 10years with custodial rape and rape with a pregnant women. Since the legislature has already taken adequate measures, there is hardly any justification for death punishment the debate on capital punishment has been running over the past so many decades, but yet nothing concrete is coming up. Many may be satisfied with the present legislation on giving of capital punishment but to many of us its still not serving the purpose that it is deemed to serve. Is it actually working as a deterrent to crime? Which as far as our understanding goes is increasing day by day. History is evidence to the fact that capital punishment has never acted and would never act as deterrence to crime. In a land Mark Judgment Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the
Page | 96

ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment to the doer only because he has money to meet out whatever expenditure might come in defending his case. Be it by influencing or so to say compensating the families of those killed or hiring an efficient lawyer to prove the case in their favour. Talk about so many politicians engrossed from top to bottom in so many corrupt t activities known to everyone still go out of the Court smiling.
Page | 97

CONCLUSION
Rape is a crime of violence; it is not sex. At common law, rape was defined as the unlawful carnal knowledge of a woman, without her consent. Carnal knowledge was defined as sexual intercourse. Sexual intercourse implied genital copulation. Genital copulation, in turn, connoted the act of sexual intercourse. Unlawful carnal knowledge required sexual penetration, however slight. Today, in addition to the requirement of carnal knowledge, most rape statutes require force or threat of force against the will and without the consent of the victim. Numerous law review articles have been written on the requirements of force and against the will of the victim. The articles focus on the force

requirement and not the penetration requirement, which is the male understanding of what is necessary when a woman is threatened with the crime of rape. Penetration is required in addition to the force and against the will requirements. Page | 98 Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by some male organ type mechanism removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most legislation. Some legislation legislated penetration of the vulva, but required a showing of penetration of the vagina. Fletcher also observed that "[s]ometime in the last two or three centuries, our scientific thinking about crime began to shift from the harm done to the act that brings about the harm". Furthermore, [i]nstead of seeing harm first and the action as the means for bringing about the harm, we are now inclined to see the action first and the harm as a contingent consequence of the action. "Most criminal statutes focus on the act, rather than social harm". Rape is an invasion of a woman's body in which her private, personal inner space is violated. The act of rape denies woman autonomy by abridging her right to determine when, with whom, and how she will allow an individual to enter her zone of body privacy. In addition to the physical harm, the crime of rape grants man domination over the woman's zone of body privacy. Under the Indian Penal Code (IPC), the crime of rape occurs when the following happens:

"A male ... has sexual intercourse with a female not his wife ... and compels her to submit by force or by threat of [force] ... [or] has substantially impaired her power to appraise or control her conduct by administering ... without her knowledge drugs [and] the female is unconscious ... [or she] is less than 10 years old." reference to rape as sexual intercourse suggests that rape is not a crime if it is sex. But rape is not sex. Some suggest that sexual intercourse has to include penetration of the vagina, however slight, and anything less is not rape because it is not intercourse. Thus, the touching of the females sex organ, without the penetration of the vagina, cannot constitute rape under the IPC. Rape, however, is not sex; it is a crime, and it is a crime of violence. The crime is complete when the act is done, or the social harm has occurred. The act is done when the female's private, personal inner space is violated, and that space is violated when an uninvited individual enters the zone of protected pleasures.
Page | 99

Index
. Declaration Certificate Acknowledgment Preface

Chapter 1

Rape: Introductory Outline

Statement of Problem Objectives of Study Hypothesis Literature Review Research Methodology Design of Study
. Chapter 2 Conceptual Analysis Meaning and Definition Nature of Problem Types of Incidence Historical Development
Page | 100

Chapter 3 Laws and Policies Provisions of Indian Penal Code Criminal Procedure Code Indian Evidence Act Latest Amendments

Chapter 4 Judicial Decision Mathura Rape Case Case Studies Chapter 5 Need to Reform Chapter 6 Conclusion Landmark decisions of Supreme court 13. Chapter 7 Maintenance under Muslim Law 14. Conclusion 110-116 102-109 92-101
Page | 101

Page | 102

DECLARATION
I, Prerna Singh, declare that the work embodies in this LL.M. Forth sem., Dissertation is my own bonafide work carried out by me under the supervision of Dr. Roshan Ara, College of Law and Legal Studies, Teerthanker Mahaveer University, Moradabad, (U.P.) India in the session of 2012-13. The matter embodies in this project has not been submitted previously for the award of any degree or diploma in any other University or Institute. I declare that I have faithfully acknowledged, given credit to and referred to the research workers wherever their works have been cited in the text and the body of the project.

Dated: Place: Moradabad

(Signature of Candidate) (Name of the Candidate)

Page | 103

CERTIFICATE
It is certified that the work contained in the dissertation titled Rape Laws In India: Need To Reform , submitted by Prerna Singh to the college of law and legal studies, Teerthanker Mahaveer University, Moradabad has been carried out under by supervision and this work is not been submitted in full or part for the award of any degree or diploma of this or any other university in India or aboard.

Date Signature of Supervisor

Dr. Roshan Ara (Asst. Professor) College of law and legal studies Teerthanker Mahaveer University,Moradabad

Page | 104

ACKNOWLEDGEMENT

I am grateful to my supervisor Dr. Roshan Ara for her enduring inspiration and guidance, support, care and help right from the beginning. I also take this opportunity to convey my special thanks to HOD Dr. Vandana Joshi and all teachers of College of Law & Legal Studies as well as all my friends for being with me throughout the work period. Last, but by no means the least, my special gratitude goes to the Almighty, my parents, who had always been with me and given me unstinted support and encouragement at every step of my work.

Prerna Singh LL.M. IV Semester

TLL1104028

Page | 105

Preface
The present work on the concept of Rape Laws in India: Need to Reform. is the symbol of my efforts in the way to get the degree of Post graduation in law (LL.M.). During the preparation of my project report Ive studied various writers books and journals here Ive tried to give the best and I know its not the last but may be the best effort with

the hope that the coming student of law will learn something about the concept.
Page | 106

Thanking you.

Prerna Singh

Dissertation RAPE LAWS IN INDIA: NEED TO REFORM

A Dissertation
Submitted for partial fulfillment of the requirement for the degree of LL.M.
Submitted By: Supervised By:

Prerna Singh Dr.Roshan Ara

LL.M. IV Semester (Asst. Professor) Enrolment No. TLL1104028 & Legal Studies College of Law
Page | 107

To The

College of Law & Legal Studies

TEERTHANKAR MAHAVEER UNIVERSITY, MORADABAD 2012-2013