Judicial Response to Sentencing in Rape Cases


*Dr. Sonia Aneja  

As an institution, the Indian judiciary has always commanded considerable respect from the people of this country. The roots of this high regard lie in the impartiality, independence and integrity of the members of the judiciary. Respect for the judiciary was part of the common man’s aspirations for maintaining Rule of Law and building a just society. The deeper aim of the law was creation of a good society.[1]

Chankya said, “Law and morality sustain the world.” But morality stems from ethnical values. The societal perception of judges as being detached and impartial referees was the greatest strength of the judiciary. The real source of the strength of the judiciary lies in public confidence in the institution. Today it was because of the public perception that the higher judiciary in the country occupies a position of pre-eminence among the three organs of the state.[2]

The Latin maxim, boni judicwas est ampliwere jurwasdictionem – it was the duty of a good judge to extend the jurisdiction – based as it was on the principle that law must keep pace with society to retain its relevance because if the society moves but the law remains static, it should be bad for both. The Indian judiciary has, during the last few decades, acted on the maxim extensively in cases where protection of fundamental rights or basic human rights were concerned.[3]This line of precedent was both dramatic and educative. It was the tardiness of legislatures and the indifference of the executive to address itself to the complaints of the citizens about violations of their human rights and unfair treatment, which provides the necessity for judicial intervention.

The judiciary could neither prevaricate nor procrastinate. It must responded to the knock of the oppressed and the downtrodden for justice by adopting certain operational principles within the parameters of the Constitution and pass appropriate directions in order to renderful and effective relief. Judicial activism generally encompasses an area of legislative vacuum in the field of human rights.[4]

The Supreme Court and the High Courts have played a significant role in protecting the fundamental rights of the people. The judges were after all part of the society and cannot be totally immune from the dominant trends of social thoughts prevailing therein. Cardozo rightly observed, “The tides and currents which engulf the rest of men do not turn aside pass the judges by.”[5] An analysis of the judicial decisions therefore was undertaken to show to what extent the judges shared the gender predilections prevailing in the society and how in spite of such predilections they rendered decisions which advanced the progress of the law towards gender justice.[6]

Time and again the Supreme Court of India has extended the ambit of Article 21 of the Constitution of India and held that mere existence was not the right to live- it was the right to live with dignity. Thus, whenever the crimes were committed against women the same should be viewed in the context of violation of her right under Article 21 of the Constitution of India and not merely as a crime against the society.

In order to show the change and improvement in the Judicial approach with respect to rape law, an attempt is made herein to discuss some of those cases, which showed the apathetic and indifferent judicial attitude towards rape victims.

In Mahla Ram v. The crown[7], the victim was raped in a moving train by the accused that dragged her down the bench and tucking up her loincloth forcibly raped her. When the train reached the next station, one guard came into that compartment and found the woman lying on the bench and the accused picking up his loincloth that was untied. There was an independent witness also who heard the victim screaming.

The court held that the evidence on the record was the most inconclusive to hold the accused guilty of rape and the victim to be a non-consenting party and it was improbable to hold that the woman was not a consenting party. There were absolutely no evidence on the record of any struggle having taken place nor were marks of injury sound on the person either of the victim or of the accused. It was further held that there was no independent evidence in support of the statement of the victim and it would be most dangerous to base a conviction on her uncorroborated testimony alone.

The court emphasised on the necessity of corroborated testimony of the victim and also the evidence of resistance to hold the accused guilty of rape and to determine her consent or want of consent. In the present case, as there was lack of all these evidences the court found the victim to be a consenting party and the accused not guilty of offence of rape.

The Court displayed a total disregard to the psychology of a woman and expected victims to be fighting for their pride. The Court failed to recognise the generally prevailing uneducated, shy and fearful attitude of woman. The expectation of stiff resistance in each case of rape is highly inhuman and injudicious. It is a well-known fact that raped is such an offence that is not committed in a public place in front of a number of people so that eyewitnesses shall be there to corroborate the victim’s version. It is highly disturbing fact that generally in cases of passive submission Courts read consent in total disregard to the prevailing social facts and woman psychology.

In Ibrahim v. Emperor[8],the cattle of the accused trespassed on a grassy plot in which the victim was grazing her cattle. She drove away the cattle and then remonstrated with the accused. The accused thereupon seized her and proceeded to rape her. Her cries attracted the attention of two independent prosecution witnesses who rescued her.

The court held that the evidence of the victim was corroborated by the evidence of a disinterested witness that left no doubt that the girl was raped. At the same time the medical evidence showed that the girl was used to sexual intercourse and as she was unmarried it followed that she was unchaste. Under the circumstances of the case the court considered that the sentence of seven years’ rigorous imprisonment was too severe and it reduced it to four years’ rigorous imprisonment.In this case, the reasoning of the court in reducing the sentence of the accused clearly shows the apathetic attitude of the Judiciary towards the victim. It gives an impression that a girl of easy virtue can be raped by anybody and she has no right to protect her person in such cases of sexual assault.

In Jalal v. Emperor[9], two men raped the victim when she was alone in her home. The victim called for help and several people appeared including her mother-in-law. These persons saw the accused persons escaping.The court held that it was quite clear from the evidence that the accused entered the house of the victim and committed criminal assault and not rape upon her. The court observed that the report of the chemical analyzer regarding the presence of semen on the victim’s clothing was not sufficient to prove that the victim was actually raped.

In Emperor v. Mahadeo Tatya[10], the victim, a married girl of about 15 years and a ghee seller was asked by the police constable on duty to put the ghee in his room. She was raped inside the room, closed and bolted by the constable. After the alleged rape, she was taken to a Railway Station and on the way deprived of her ornaments by the man who was told to accompany her at the behest of the accused.The order of conviction of accused, who was a police constable, passed by the trial Court in consultation with jury was set aside by the Bombay High Court for want of corroboration. The Court observed that a charge of rape was very easy charge to make and a very difficult one to refute and corroboration must necessarily depend on the facts of each case. It observed that in a contested case of rape, medical evidence showing injury to the private parts of the victim, external injury to her body as a natural consequence of resistance by her; use of force by the accused and the presence of seminal stains on her clothes and on the clothes of the accused or at the place of occurrence were needed for the corroboration of charge/allegation. It further observed that the subsequent conduct, by itself, although important, was not enough because a witness could not corroborate himself/ herself.

In setting aside the lower court’s verdict of conviction, the court failed to take into consideration the social realities and also the pathetic condition of the victim vis-a-vis a well off and comfortably placed accused. In Indian society no woman or girls would prefer to invite the social stigma of being raped and thereby losing her most vital wealth i.e. Virginity and Chastity for the sake of procuring conviction for others. Secondly, the suggested corroborative medical evidences were not necessary to be available in each case of rape like where the victim was habitual to sexual intercourse, no injury would be available on her private parts, also where she was overpowered in the beginning of the act or series of acts by putting her in threat of physical injury or any other method, she would be left with no option other than to passively submit and no sign of injury would be visible on her externally. Same would be the case regarding the presence of seminal stains or other biological evidences. In this case the court created an unscientific and rigid requirement of independent corroboration ignoring the social facts that outweigh the need of mechanical corroboration. Also, in cases of false accusation, it would always be open to the accused to assign some credible reasons for such accusation and in absence of these reasons adhering to the requirement of mechanical corroboration is not only anathema to the concept of justice but also supportive to class exploitation of women.

In Nura and Ors v. Rex[11], the victim aged around 12 to 13 years, having intimacy with a friend in the neighbourhood once went to her house on an invitation, and was introduced to her husband and another friend of his. The friend asked the victim to go with these two men who took her out of the village and several men allegedly raped her.The doctor found that her hymen was absent and that there was no laceration of the vaginal orifice, nor was there any mark of any injury. On this, the court observed that the girl appeared to have had some previous experiences of sexual life, and the fact that there was no mark of any injury on any portion of her body clearly suggested that there had been no tussle between her and the accused persons when one or the other would have raped her.

The High Court held that in a charge of rape the uncorroborated testimony of the victim alone should not be accepted as a sufficient foundation for convicting the accused.The Hon’ble Court failed to appreciate the fact that the offence of rape has nothing to do with the virginity of the victim because if the loss of virginity was considered as sine–qua-non for the offence of rape to make out then no married woman in general could be subjected to rape. This interpretation of law is unacceptable, appears to be illegal and even absurd. The court also failed to differentiate between consent and passive submission as in latter case the victim could be overpowered by the use of physical power or threat or coercion in the beginning itself and normally no medical evidence would be available in these cases. It is also submitted that insistence for the independent corroboration in such circumstances would mean to negate the reality that the offence of rape is generally committed in isolation or in darkness and no eye-witnesses will be available for their expected evidence in court. Going by the ethos, morale and practice in our society it can be said that commission of rape in the presence of eyewitnesses would be very rare.

In Muhammad Afzal  v. The Crown[12], the victim was raped by two ticket collectors, on the pretext of taking her to a refugee camp where she wanted to go after coming out of the Railway station. They later left her at the Railway Platform. The victim gave contradicting statements about her consent to the Military Police and then to the sub-inspector at the police station.The court held that the victim did not receive any injury in the struggle nor were her clothes torn. The fact that she did not tell even her father that she had been violated or deceived also showed that no deception was practiced nor any force used on the victim.

This case is different from the other cases that have been discussed in the preceding pages because in this case it was observed by the court that the rule of corroboration was meant to be applied to accomplices and a ravished woman was not an accomplice but a victim of crime. Therefore, corroboration of the victim in a case of rape was not always indispensable. The thing to be remembered in such cases is whether it is safe to convict the accused on her solitary statement. This depends upon the circumstances of each individual case.

The first progressive development occurred in 1952, with the pronouncement of Supreme Court in   Rameshwar v. State of Rajasthan[13]

Woman, who has been raped, is not an accomplice… corroboration can be dispensed… when it is safe to do so. The rule, which according to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction, but the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with.

The judicial stand in Rameshwar case was followed in many cases, holding that corroboration is not sine qua non of conviction

In Rahim Beg v. State of U.P[14], the victim (deceased); aged about 12 or 13 years resided with her father and was married about six years but her Gauna ceremony was not performed. On one morning both the accused persons, Rahim Beg and Mahadeo, followed the victim who were seen by two prosecution witnesses when the victim did not arrive at home, her parents searched for her and at about 4 pm ,her dead body was found lying under a bush in a Bhinta.

The court held that there were semen stains on the langot of the accused who was a young man but it could exist because of a variety of reasons and would not necessarily connect him with the offence of rape. In this case rape was alleged to have been committed by a fully developed man on a girl of 10 or 12 years who was virgin and whose hymen was intact. There was absence of any injuries on the male organ of accused that would point to his innocence.

Again this case was very disturbing, as the court did not take into consideration the available evidence against them and acquitted them.

 In Pratap Mishra v. State of Orissa[15], the victim was a five months pregnant woman of around 23 years at the time of the incident. The victim was on a pleasure trip to Nandan Kanan with her husband, when she was raped in the tourist lodge by a number of NCC students; who forced the door open and took her husband away and then raped the victim in spite of her protest one after another. The traces of seminal stains were found on the saya (petticoat) and the underwear of the victim.

The opinions of medical experts showed that it was very difficult for any person to rape single-handed a grown up and experienced woman without meeting the stiffest possible resistance from her. It was held to be doubtful if at all the victim was raped without her consent. It was held on perusal of the entire evidence, that the accused persons no doubt committed sexual intercourse with the victim but such an intercourse was done with the tacit consent of the victim and the connivance of her husband.

In the opinion of the doctor if the victim had been raped by the three accused persons, one after the other in quick succession with force and violence, the abortion would have been immediate and not after a few days. It was held that the accused persons might have indulged in sexual intercourse with the victim but not without her consent.

In this case it is apparent that the Supreme Court overlooked the facts like presence of semen on the undergarments of victim (a married woman) that normally does not happen in cases of consent. Mere absence of stiff resistance by the victim could not be considered as consent when she was in advance stage of her pregnancy because the victim might have realised that resistance before the accused person would be of no effect and consequent violence might endanger her life and the life of the baby in her womb. It is very unfortunate that this peculiar inability of the victim was construed as consent by the apex court and instead of awarding the deterrent sentence, it acquitted the accused. The accused never pleaded that they knew the victim or she was paid money for the act. Under the circumstances, the only inference should have been the commission of rape by the accused persons.

 The decision of the Supreme Court in Tuka Ram v. State of Maharashtra[16] created furors in the field of rape law. The facts of this case were so peculiar and the decision so coldly legalistic and unjust that it led to the culmination of mass movement for the amendment of rape laws.In this case, Mathura was a young girl of 14-16 years. She had developed a relationship with her employer’s cousin. On March 26 1972, her brother filed a report that Mathura was kidnapped by her employer and her boy friend. They were all brought to the Police Station at 9 P.M. and their statements were recorded. When everybody started to leave, Mathura was directed to remain at Police Station by Tuka Ram, the Head Constable and Ganpat, a Constable. While both Policemen were on duty, they bolted the doors and put off the lights. Ganpat raped Mathura and Tuka Ram fondled her private parts. Tuka Ram was too drunk to rape Mathura. A crowd gathered outside and then shortly after Mathura came out and announced that she had been raped by Ganpat. Mathura was examined on the next day. Her report showed old ruptures of hymen and that she was habituated to sexual intercourse. In Sessions Court, this fact was held against her and the accused were acquitted. It was held that Mathura had in fact consented to the act. The Bombay High Court reversed the decision and sentenced Tuka Ram to rigorous imprisonment for 1 year and Ganpat for 5 years. The High Court held that mere passive submission or helpless surrender of the body and its resignation to the other’s lust induced by threats or fears cannot be equated with consent.

The Supreme Court[17] reversed the decision and held that Mathura had consented to the act. There were no injuries on person of Mathura, thus, it was held that the story of rape was concocted by her and her testimony was disbelieved. Further, it was held that only fear of death or hurt could vitiate consent in the clause thirdly. The operation of clause secondly was not even considered.The decision drew attention of four law teachers; Prof. Upendra Baxi, Prof. Raghu Nath Kelkar, Prof. Lotika Sarkar of Delhi University and Prof. Vasudha Dhagamwar of ILS, Pune. In October, 1979, they wrote an ‘Open Letter to the Chief Justice of India’, protesting against the judgment. This letter created an unprecedented furor and received tremendous publicity from the Press. The Open Letter criticised Supreme Court judgment and stated that there is a clear difference in law and common sense between consent and submission. The facts of the case revealed submission on part of Mathura and not the consent. It was questioned in open letter, is the taboo against pre-marital sex was so strong as to provide a licence to Indian Police to rape young women.

This decision shook the conscience of many belonging to civilized society for the custodians of law and order and had taken advantage of an innocent girl and turned the Police Station into a theatre of sex. Thus, Mathura case has become a major reference point for any discussion on rape laws.

There was a nationwide movement for the amendment of law and many mass protests, demonstrations and meetings were organized by the women organizations, lawyers, teachers, students, social workers, etc. An academic protest by a group of four got transformed into a national wave and, thus, became a unique event in history of criminal law. The judgment was widely criticised both inside and outside Parliament as an extraordinary decision scarifying human rights of women under law and the Constitution.[18] The Government took serious note of the rare degree of sensibility of public as well as of the parliamentary criticism of the law and its failure to safeguard the rights of innocent rape victims. Thus, the Law Commission[19] was appointed to submit its report on law relating to rape and allied offences in 1980.

In Phul Singh v. State of Haryana,[20]the accused, aged 22 years, entered into his cousin’s house next door, and in broad daylight, raped the victim, aged 24 years. The Sessions Court imposed a sentence of 4 years rigorous imprisonment, and the High Court affirmed it in appeal. The apex court held that the culpability was beyond doubt and upheld the conviction.

With regard to the quantum of sentence, the Supreme Court held that ordinarily, rape was violation, with violence, of the private person of a woman — an outrage by all cannons. In Indian conditions of escalating sex brutality, a 4-year term for rape was not excessive. But in the present case, the accused was in his early 20s and signs of repentance were seen. The victim and her parents had forgiven the molester who was the first cousin of the victim’s husband. While it was possible that the accused might procure such condonation from an unwilling victim, the fact remained that two families being close cousins were ready to take a lenient view of the situation. However, this did not bind the court in any manner. Therefore, taking an overall view of the familiar and criminal factors involved, the court reduced the imprisonment from four years to two years rigorous imprisonment.

The Apex Court in this case tried to justify the award of lower sentence than the minimum prescribed period by taking into consideration the near relationship of accused to the victim and mutual understanding and forgiveness between the two families. The court emphasized more on the rehabilitation of accused in social life. Accused persons and their families can use this judgment to put pressure upon the victim to withdraw the case in the guise of social compromise resulting in the increased social exploitation of rape victim.

In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat[21], the Supreme Court has observed: “To say at the beginning what we cannot help saying at the end: human goodness has limits- human depravity has none. The need of the hour however, was not exasperation.”

In this case the victim and the other girl child went to the house of accused in order to meet his daughter, belonging to their own age group of 10 or 12, who happened to be their friend. The accused induced them to enter his house by creating an impression that she was at home though in fact she was not. Once they were inside, the accused closed the door, undressed himself in the presence of both the girls, and exposed himself. He asked other girl to indulge in an indecent act. She started crying and fled from there. The victim could not escape. She was pushed into a cot, and was made to undress and sthe accused sexually assaulted her.

The Sessions Judge found the accused, a government servant, guilty of serious charges of sexual misbehaviour with young girls aged about 10 or 12 years and convicted him for the offence of rape, outraging the modesty of women, and wrongful confinement. The appeal to the High Court substantially failed as the Court affirmed the order of conviction for wrongfully confining the girls and for outraging the modesty of two girls but with regard to the more serious charge of rape on the victim, it came to the conclusion that evidence established an offence of attempt to commit rape and not rape.

The Court framed the following question:

Why should the evidence of girl or the woman who complained of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so was to justify the charge of male chauvinism in a male dominated society.

The consequences of such charges would have disastrous effect on the future of unmarried girl and might ruin the marital life of a married woman. Commenting on the Indian circumstances, the Apex Court enumerated few of the following main reasons in this case which ruled out the possibility of fabrication of rape charges.

  • (i) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which was likely to reflect on her chastity had ever occurred.
  • (ii) She would be conscious of the danger of being ostracized by the society or being looked down by the society including her own family members, relatives, friends and neighbours.
  • (iii) She would have to brave the whole world.
  • (iv) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
  • (v) If she were unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
  • (vi) It would almost inevitably and almost invariably result in mental torture and suffering to herself.
  • ‘(vii) The fear of being taunted by others would always haunt her.
  • (viii) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex was taboo.

In view of these and similar factors the victims and their relatives were not too keen to bring the culprit to book. And when in the face of these factors the crime was brought to light there was a built-in assurance that the charge was genuine rather than fabricated.

The court further held that on principle the evidence of a victim of sexual assault stood on par with evidence of an injured witness. Just as a witness who had sustained an injury which was not shown or believed to be self inflicted was the best witness in the sense that he was least likely to exculpate the real offender, the evidence of a victim of a sex-offence was entitled to a greater weight, absence of corroboration notwithstanding. And while corroboration in the forms of eyewitness account of an independent witness might often be forthcoming in physical assault cases, such evidence could not be expected in sex offences, having regard to the very nature of the offence.

It was held that corroboration was not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, was adding insult to injury. If the evidence of the victim did not suffer from any basic infirmity, and the ‘probabilities-factor’ did not render it unworthy of credence, as a general rule, there was no reason to insist on corroboration except from the medical evidence, having regard to the circumstances of the case, medical evidence could expect to be forthcoming subjected to be following qualification: Corroboration might be insisted upon where a woman having attained the majority was found in a compromising position and there was a likelihood of her having leveled such an accusation on account of instinct of self-preservation or when probability-factor was found to be out of tune.

It could be observed that the need of the hour was to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem: “whether, when, and to what extent corroboration to the testimony of a victim of rape was essential to establish the charge.” And the problem has a special significance for the women in India, for, while they have often been idolized, adored, and even worshiped, for ages they have also been exploited and denied even wanted justice – 60 crores anxious eyes of Indian women were, therefore, focused on this problem.

This is a landmark judgment of the Supreme Court that gave a new insight to deal rape cases from the victim’s perspective. It shows genuine concern for the plight of the victim and realised the social circumstances. The testimonial evidence of the victim of rape at least secured a reasonable place in the scheme of criminal trial and is a welcome departure from the earlier judicially created barriers between the victim of rape and justice.

In State of Maharashtra v. Madhulkar Narayan Mardikar[22],the accused, Madhulkar, was serving as a police inspector at Bhaiwandi Town Police Station. In the night, he went to the hut of the victim in uniform and forcibly raped her in her hut.The court held that offender-victim relationships might be a better test for determination of questionable consent. Legal traditions were such that rape accusations were looked upon with some suspicion in cases where there was anything more than passing acquaintanceship. But it was not a correct position of law.

It further held that in order to gain a proper understanding of rape from victim’s perspective, it was necessary to include more sexual acts than the law did at present, it was also important to make distinction between those sexual acts finally included. Thus, rape could be defined as sexual access gained by any means where the woman’s overt genuine consent was absent and where there was an absence of relative equality. Only evidence of the positive desire dignified sexual intercourse and made it joyful and anything less was against her will and wisdom ought to be considered as rape.

The decision in this case deserves a bouquet. It serves to correct certain indefensible extensions and assumptions drawn by patriarchal laws, which violate the human rights and right of privacy of a category of women – referred to “women of easy virtue”. These assumptions often aid and abet acquittals in cases relating to crimes committed by men in uniform, i.e., the police.

In Dhananjoy Chatterjee alias Dhana v. State of West Bengal[23],the victim, 18 year old school going girl, was barbarically raped and murdered by the accused, who was the security guard of the society in which the victim resided.It was held by the apex court that keeping in view the medical evidence and the state in which the body of the deceased was found, it was obvious that the most heinous type of barbaric rape and murder was committed on a helpless and defenseless victim. The faith of the society by such a barbaric act of the guard, got totally shaken and its cry for justice becomes louder and clearer. The offence was not only inhuman and barbaric but it was totally ruthless crime of rape followed by the cold-blooded murder and an affront to the human dignity of the society. The savage nature of the crime shocked judicial conscience.

The Supreme Court held that measures of punishment in a given case must depend upon the atrocity of crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment was the manner in which the courts responded to the society’s cry for justice against the criminals. Justice demanded that courts should impose punishment befitting the crime so that the courts reflected public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of victim of crime and the society at large while considering imposition of appropriate punishment.

It was further held that there were no extenuating or mitigating circumstances whatsoever in the case. The Court agreed that a real and abiding concern for the dignity of human life was required to be kept in mind by the courts while considering the confirmation of the sentence of death but cold-blooded preplanned brutal murder, without any provocation, after committing rape on an innocent and defenseless young girl of 18 years, by the security guard certainly made this case a “rarest of the rare” cases which called for no punishment other than the capital punishment.

The considerations of social and human values and expectations from the apex Court in its activist form  are satisfied by this sensible pronouncement of the apex Court.

In Delhi Domestic Working Women’s Forum v. Union of India[24] ,a public interest litigation was filed by the petitioner’s forum under Article 32 of the Constitution of India.On 10 Feb 1993 six tribal girls from Bihar, who were working as domestic servants in Delhi, boarded the Muri Express at Ranchi for Delhi. The train reached Khurja station at 11 P. M. and while they were all asleep. One of them got up and complained to others that somebody was teasing her. Then 7 to 8 accused, Army Jawans, came to them and molested them. The accused threatened the victims that if they raised any hue and cry, they would be thrown out of the running train. Four of them were raped by the accused. Two of the six girls saved themselves by hiding under the seats. The victims tried to lodge a complaint but nobody tried to pay heed to them. As soon as the train reached the New Delhi station, the accused ran here and there but the victims managed to catch hold of one accused with the help of public and officers of the Army and FIR was lodged.

Justice Mohan delivering the judgment of the Court drew attention to the defects of the existing system. First complaints were not given the attention that was warranted and the victim often said that giving evidence in a rapes trial was an ordeal worse than rape itself. In this context the judge cited the views of writers like Jennifer Temkin, Kelly Shapland and Reilly. In view of this the court found it necessary to give the broad parameters in assisting the victims of rape such as:

  1. Complainants of sexual assaults should be provided with legal representation. The victim’s advocate should not only assist her in filing the complaint but also guide her in getting other kinds of assistance like psychiatric and medical,
  2. Legal assistance would have to be provided at the police station as well as in view of the distressed state of mind of the victim,
  3. Police should be under a duty to inform the victim of the right to get representation before asking her questions and the police report should state that she was so informed,
  4. A list of advocates should be prepared who were willing to act in these cases ,
  5. Such advocates should be appointed by the Court, but to avoid delay advocates might be authorised to act in police station before permission from the court had been obtained,
  6. A criminal injuries compensation board should be set up,
  7. Compensation for the victim should be awarded by the court on the conviction of the offender and by the criminal injuries compensation board whether or not a conviction had taken place.

The court, while concluding directed that in view of the provisions contained in section 1 of the National Commission For Women Act, 1990, the Commission would have to evolve such scheme as to wipe out the tears of such unfortunate victims; and the scheme should be prepared within six months from the date of the judgment; and the Union of India should examine and should take necessary steps for the implementation of the scheme at the earliest.

No doubt section 357(3) of the CrPC, 1973 enables a criminal court to grant compensation to a victim but this provision has two drawbacks. Firstly, the award of compensation lies at the discretion of the court; secondly, if an accused person was not having the means to pay compensation, the remedy was worthless. In other words there was no obligation on the State to provide for compensation.

In India, even though rapes, gang rapes and mass rapes have drawn the attention of media, the law is far behind in providing compensation to the victims of crimes in general. In the light of the above discussion this judgment is an important landmark step in the direction of upholding victim’s right.

In Bodhisattwa Gautam v. Ms. Subra Chakraborty[25],the accused had entered into a false marriage with the victim and she became pregnant. He made her undergo an abortion. He repeated the same thing again. When she asked him to maintain her, he disowned her on the ground that there was no marriage. The court whilst refusing the accused’s request to quash the prosecution also expatiated on rape law. The court ruled that rape was not merely an offence under the Penal Code; it was also a violation of woman’s right to live with dignity and personal freedom. Saghir Ahmed, J. speaking on behalf of the Court said:

Rape was thus not only a crime against the person of a woman (victim), it was a crime against entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis…. It was a crime against basic human right and was also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape was less a sexual offence than an act of aggression aimed at degrading and humiliating women.

The court recognized that fundamental rights could be enforced even against private bodies and individuals. The court held that a court trying a case for rape had jurisdiction to award even interim compensation during the pendency of the trial. The court ordered that the accused should pay to the victims a sum of Rs. 1000 every month as interim compensation until the case was decided. She was entitled to receive arrears of such interim compensation from the date on which the complaint was filed

In Chairman, Railway Board v. Chandrima Das[26], a practicing advocate of Calcutta High Court filed a petition under Article 226 of the Constitution against Chairman, Railway Board  Others claiming compensation for the victim, Bangladeshi National who was gang raped by many including employees of Railway in a room at Yatri Niwas at Howrah Station of Eastern Railways.

On the basis of the facts High Court awarded the sum of Rs. 10 lacs as compensation for victim. The High Court was of the opinion that rape was committed at Rail Yatri Niwas belonging to Railways and perpetrated by Railway employees.The apex court awarded compensation of ten lacks to that alien woman under Article 21 of the Constitution. The court also relied upon international human rights instruments and observed that the International Covenants and Declarations as adopted by the United Nations had to be respected by all signatory States.

This case is a unique example of recognition of human rights of the rape victims and also the liability of State for acts done by its staff. Victim compensation has also been recognized as the need of hour in this judgment. The Apex Court had adhered to the principle of ‘Vasudham Kutumbhkam’ in this case and had been more graceful in awarding compensation to the victim, a Bangladeshi woman. This activism of the Supreme Court is praiseworthy.

In State Government of N.C.T of Delhi v. Sunil[27], the two accused persons committed rape on the victim, a little girl, and murdered her after the act. Trial Court held the accused guilty but the High Court, on appeal, acquitted them.

The Apex court held on consideration of the entire evidence that it had no doubt that the trial court came to the correct conclusion that the two accused were the rapists who subjected victim to such savagery ravishment. A Division Bench of the High Court had grossly erred in interfering with such a correct conclusion made by the trial court, as reasons adopted by the High Court for such interference were very tenuous. Nonetheless it was difficult to enter upon the finding that the accused were equally guilty of murder of victim.

It could happen during the course of violent ravishment committed by either both or by one of the rapists without possibly having any intention or even knowledge that their action would produce any such injury. Even so, the rapists could not disclaim knowledge that the acts done by them on a little infant of such a tender age were likely to cause its death. Hence, they could not escape conviction from the offence of culpable homicide not amounting to murder.

In this case High Court appeared to be determined to question every points rose by the prosecution that might go against the defence. It clearly shows the indifferent attitude of the judiciary even at the level of the High Court.

In State of  U.P. v. Pappu,[28]the Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony.

The Court held, it is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars.

In State of Karnataka v. Raju[29], the judgment rendered by a learned Single Judge of the Karnataka High Court reducing the custodial sentence of respondent to 3 years instead of seven years as was imposed by the learned Second Additional Sessions Judge, Gulbarga, after convicting the respondent for an offence punishable under section 376 of the Indian Penal Code,1860, was challenged in appeal.

The victim was aged less than 12 years when she was sexually ravished by the respondent on 31.1.1993 at about 12.30 p.m. On the basis of First Information Report lodged at the police station, law was set into motion. On completion of investigation, charge-sheet was filed and accused faced trial but he pleaded innocence. Prosecution placed reliance on the evidence of victim and the medical evidence. The trial court convicted the accused under section 376 IPC. An appeal was preferred before the High Court and the same was disposed of by the High Court maintaining the conviction but sentence was reduced to 3 years, since the High Court felt that in view of certain special reasons the custodial sentence was to be reduced to 3 years.

It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.

 The present case is covered by section 376(2)(f) IPC i.e. when rape is committed on a woman when she is under 12 years of age. Admittedly, in the case at hand the victim was 10 years of age at the time of commission of offence.

The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the considering the legal position and in the absence of any reason which could have been treated as ‘special and adequate reason’ reduction of sentence as done by the High Court is clearly unsustainable.  The High Court’s order reducing the sentence is set aside.

 In Nazir Ahmed v. State of Jammu and Kashmir[30], the accused was charged with committing rape on her divorced wife by allegedly cohabiting with her for seven or eight years after executing a divorce deed. The fact of execution of divorce deed was not communicated to her and it was only when she filed an application for maintenance, he pleaded case of divorce. He had executed a power of attorney in favour of her after execution of her divorce deed where he had described her as his legally wedded wife and empowered her to do all acts including execution of sale deeds etc.

The Jammu and Kashmir High court held that it could be said that the divorce deed was just a paper writing which was never given any legal effect. Cohabitation with the prosecutrix for seven or eight years continuously as her husband would not amount to rape and he was entitled to acquittal.

In Jaswant Singh v. State of Punjab,[31] on the night of 25th June, 1989, the prosecutrix was sleeping in the courtyard of her house and her adoptive parents were also sleeping in the same courtyard. The prosecutrix around 11p.m. got up to answer the call of nature and at that time all the three appellants, namely, Kuldeep Singh, Major Singh and Jaswant Singh barged into the courtyard and gaged her mouth all of a sudden making her totally helpless and immovable. Kuldip Singh pointed a pistol at her and then all the accused bodily lifted her to the house of Jaswant Singh.

She could not raise hue and cry as she was in panic. Major Singh and Charan Singh has forcibly thrown the prosecutrix on a cot. Kuldip Singh removed her clothes forcibly and committed sexual intercourse with her against her will and consent, and thereafter the rest of the accused had also committed rape on her. Thereafter the proscutrix was allowed to go. She was threatened and warned not to disclose the occurrence to her parents. On returning home, the prosecutrix narrated the occurrence to her parents.

On the following day Surjit Kaur, mother of the prosecutrix informed Gurdev Singh Sarpanch and Gajjan Singh Lambardar. She then went to police station, Rajkot to inform the police about the incident but the concerned police did not take any action against the accused. Therefore a written complaint was filed on July 5, 1989 before Senior Superintendent of Police Ludhiana which was in turn sent to Deputy Superintendent of Police who visited the village on July 8, 1989 and recorded the statement of the prosecutrix on the basis of which a formal F.I.R. was issued on same day. The sentence of 10 years rigorous imprisonment for rape and 5 years rigorous imprisonment for abduction was held not liable to be reduced. The alleged dispute over a common wall was not of such a grave nature as compelling the entire family of prosecutrix to go to the extent of putting at stake its reputation and fair name of a young girl to settle the scores with the accused. Therefore the plea of false impliciation raised by the accused was held untenable.

The Delhi gang rape case popularly known as Nirbhaya case[32], involved a rape and fatal assault that occurred on 16 December 2012 in Munirka, a neighbourhood in South Delhi, whose rapists have still not been brought to justice. The incident happened when a 23-year-old female physiotherapy intern, Jyoti Singh Pandey was beaten and gang raped in a private bus in which she was travelling with a male friend, Awindra Pratap Pandey. There were six others in the bus, including the driver, all of whom raped Pandey and beat her friend. Thirteen days after the assault, she was transferred to a hospital in Singapore for emergency treatment, but two days later she died from her injuries. The incident generated widespread national and international coverage and was condemned by the United Nations Entity for Gender Equality and the Empowerment of Women, who called on the Government of India and the Government of Delhi “to do everything in their power to take up radical reforms, ensure justice and reach out with robust public services to make women’s lives more safe and secure”.

Subsequently, public protests against the state and central governments for failing to provide adequate security for women took place in New Delhi, where thousands of protesters clashed with security forces. Similar protests took place in major cities throughout the country. Because India does not allow the press to publicize a rape victim’s name, the victim has become widely known as Nirbhaya, meaning “fearless”, and her life and death have come to symbolize women’s struggle to end rape and the long-held practice of blaming the victim rather than the perpetrator.[33]

All the accused were arrested and charged with sexual assault and murder. One of the accused, Ram Singh, died in police custody on 11 March 2013 in the Tihar Jail .According to some published reports, the police say Ram Singh hanged himself, but defence lawyers and his family suspect he was murdered. The rest of the accused went on trial in a fast-track court; the prosecution finished presenting its evidence on 8 July 2013.[34] The juvenile was convicted of rape and murder and given the maximum sentence of three years’ imprisonment in a reform facility. On 10 September 2013, the four remaining adult defendants were found guilty of rape and murder and three days later were sentenced to death by hanging. The court said the “beastly” and “hair-raising” manner in which the crime was committed against a23-year-old girl falls in the rarest of rare category.”Accordingly, the convicts be hanged by neck till they are dead,” Additional Sessions Judge Yogesh  Khanna said after observing that the inhuman and ghastly acts of the convicts shocked the collective conscience of the nation and deserve exemplary punishment, which was pronounced nine months after an agonizing wait. On 13 March 2014, Delhi High Court in the death reference case and hearing appeals against the conviction by the lower Court, upheld the guilty verdict and the death sentences.[35]

On 15 March 2014, the Supreme Court of India stayed the execution of two of the four convicts, Mukesh Singh and Gupta to allow them to make their appeal against their conviction on 31 March. This was further extended by the court to the second week of July.

On 2 June, the two other convicts, Sharma and Thakur also asked the Supreme Court to stay their execution to allow them to make an appeal of their convictions. On 14 July, their execution was also stayed by Supreme Court. As of December 2014, two years following the attack, the Supreme Court has not yet handed down their decision.[36]

The judicial handling of the various categories of rape is reflected in the decisions rendered by the Courts from time to time. Though at times broad policy guidelines are expressed by the Courts, the fact that there is no standard policy uniformly adopted by all the Courts is evident from a perusal of aforesaid   cases. The judicial attitude has been over the period more pragmatic but the inherent procedural formalities safeguard the accused providing him with the benefit of doubt and as a result the trauma and ordeal of the rape victim remain largely ignored.

Dr. Sonia Aneja is an Assistant Professor (Law) at The Law School , University of Jammu. She is an author of a book titled ‘Legal Study of Rape Laws in India: Victimization and Judicial Approach – ISBN-13: 978-3659788635’.

[1] A.S. Anand., Justice for Women concerns and expressions, p.42, Universal Law Publishing Co., New Delhi (2002).

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] S.P.Sathe, “Gender, Constitution and the Courts”, Engendering Law – Essays in Honour of Lotika Sarkar, p.120  (1999).

[7] AIR 1924 Lah 669.

[8] AIR 1927 Lah 772(2.)

[9]AIR 1930 Lah 193(1).

[10] AIR 1942 Bom 121.

[11] AIR 1949 All 710.

[12] AIR 1950 Lah.151

[13] AIR 1952 SC 54.

[14] AIR 1973 SC 343.

[15]AIR 1977 SC 1307

[16] AIR 1979 SC 185.

[17] The Supreme Court Bench consisted of Jaswant Singh, J., Kailasam, J. and Koshal, J.

[18] K.D. Gour, A Text Book on the Indian Penal Code, p.529,Oxford  and IBH Publishing Co. Pvt. Ltd., New Delhi (1992).

[19] Law Commission of India — 84th Report, Govt. of India, Ministry of Law, Justice and Company Affairs, (1980).

[20] AIR 1980 SC 249.

[21] AIR 1983 SC 753.

[22] AIR 1991 SC 207.

[23] 1994(2)SCC 220

[24] (1995) 1 SCC 14

[25] AIR 1996  SC 922.

[26] AIR 2000 SC 988.

[27] 88(2000)DLT 630 (SC)

[28] AIR 2005 SC 1248

[29] (2007) 11 SCC 490

[30]2008  Cri. L.J 2628 (SC)

[31] (2010)  1 Cri. L. J 41(SC)

 [33]  State v. Ram Singh and others AIR 2013.

[34] “Delhi gangrape: Chronology of events”. The Hindu(New Delhi). 31 August 2013. Retrieved 2 September2013.

[35] “Delhi gang-rape case: High Court verdict confirms convicts’ death sentence”. 13 March 2014. Retrieved13 March 2014.

[36] PTI | Jul 14, 2014.

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