Revision as of 07:11, 18 December 2020

Bail: conditions for

Rapist, 20, given bail to protect him from hardened criminals

Shibu Thomas ,`Young' 20-yr-old rapist gets bail Nov 13 2016 : The Times of India

Bail for youth accused of repeatedly raping minor

HC Cites Age To Give Relief To 20-Year-Old

Citing his young age and the fact that he would be in jail with hardened criminals, Bombay high court granted bail to a 20-year-old BCom student from Satara booked for repeatedly raping a10-year-old girl.

Justice Anant Badar or dered Avinash Lakade's release on bail on a personal bond of Rs 25,000 and one or two sureties of the same amount. If convicted, Avinash faces a jail term of at least 10 years and a maximum of life imprisonment.

“The investigation of the crime in question is over. The offence alleged is very serious but at the same time (Avinash) is also a young boy. Instead of allowing him to be in the company of hardened criminals in prison, his liberty can be restored to him by imposing suitable conditions,“ said the judge, adding that the prosecution had not claimed that Avinash had any criminal antecedents.

The court ordered Avinash not to enter Koregaon in Satara till the disposal of the criminal trial and warned him against threatening or giving inducements to any witness in the case or tampering with evidence. “The accused shall not commit an offence similar to the offence of which he is accused or suspected of,“ the judge said.

The HC has asked Avinash to inform the police of his residence and his mobile phone number. Advocate Ganesh Shelar, counsel for Avinash, contended that he was only 20 and “his incarceration in jail will affect his overall development“. Additional public prosecutor Arfan Sait opposed the bail, saying the nature of offence, mode and the manner of sexually exploiting the minor needed to be considered. He pointed out that the evidence collected by the police unerringly revealed that Avinash had committed the crime.

The case was lodged earlier this year by the survivor's mother at Rahimatpur police station. According to the complaint, Avinash used to visit the girl's house when she was alone and rape her.Avinash was arrested and booked for rape under the Indian Penal Code and also charged under the Protection of Children from Sexual Offences (Pocso) Act for repeated aggravated sexual assault on a child below 12. The police filed a charge sheet in the case and subsequently Avinash approached the court seeking bail.

Survivors must have say in bail pleas of accused: HC

May 16, 2020: The Times of India

Survivor of sexual offences have an obligatory say in the hearing of bail pleas of accused, Delhi high court has reminded trial courts.

Justice Brijesh Sethi, who conducted the hearing through video conferencing, was informed that trial courts are violating the directions earlier issued by the high court by passing bail orders without adhering to mandatory requirement of issuing notice to the complainant or authorised person on the bail plea of a person accused of sexual offences.

The high court then asked the registrar general to once again circulate the practice directions and the court’s earlier orders in this regard. It said the district and sessions judges will bring the directions to the notice of the criminal courts dealing with matters of sexual offences under the Indian Penal Code and the Protection of Children from Sexual Offences Act.

It was hearing a plea by the mother of a minor rape survivor challenging the interim bail granted to the accused by a trial court without giving them a hearing or notice. She submitted that the trial court’s order granting interim bail to the accused on May 5 was passed in a routine manner.

The court was informed by the lawyer that the victim and her family live in the vicinity of the accused and enlarging him on interim bail is a threat to their lives, prompting the court to issue notice to police and the accused on the plea challenging his interim bail and listed the matter for further hearing on May 22.

Child born of rape

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

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

PTI | Aug 15, 2013

The Times of India

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

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

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

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

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

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

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

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

Right to assaulter/ father's property: HC

The Times of India, Nov 04 2015

Court leaves decision to Legislature

The Lucknow bench of the Allahabad high court ruled that a child born of rape has inheritance rights to the biological father's property . The right will, however, be subject to the personal law concerned. “The child will be treated as an illegitimate child of the biological father,“ the court said, “However, if heshe is given away for adoption, the child will not have the right to inheritance.“

The direction came as the court delivered the judgment in a rape case involving a 13year-old victim. A division bench of Justices Shabihul Hasnain and Devendra Kumar Upadhyaya told the government to pay the child Rs 10 lakh as maintenance. It also asked the government to ensure that the girl gets a job once she attains adulthood.

The victim belongs to a poor family , and got pregnant after she was raped earlier this year. The family got to know about the pregnancy after the legal deadline of 20 weeks for abortion expired.They moved the HC seeking permission for abortion, but a panel of doctors appointed by the court deemed it too dangerous for the teenager. The court appointed a panel of senior lawyers to assist it on the issue of inheritance for a child born of rape. “The matter relating to inheritance, the manner of birth...is irrelevant; the rights of inheritance of a person are governed by the personal law to which the person is subject, irrespective of the manner of birth,“ the court said.

It clarified that it was not giving any specific direction for inheritance of property in the case because it may have grave consequences if the father starts claiming some special reproach privileges over the child, like rights of visitation or custody, which is “undesirable“.

The court added, “The rights of inheritance in the property of a biological parent is a complex personal law right which is guided by either legislation or custom.“

“It may not be possible to judicially lay down any norm or principle for inheritance by a minor who is born as a result of rape. Such attempt by the court would amount to legislation by judicial pronouncement and would operate as precedent in times to come. It would not therefore be desirable to venture into this field and accordingly we leave it open for the appropriate legislature to deal with this complex social issue.“

The court said that in the present case there are two victims: the girl who was raped and the child born of rape.

Compensation to child born out of rape

The Indian Express, December 14, 2016

Aneesha Mathur

Child born out of rape is entitled to compensation, says Delhi High Court

The direction was issued while upholding the life sentence to a man convicted of raping and impregnating his 14-yr-old stepdaughter.

The Delhi High Court has held that a child “born out of rape” is also entitled to receiving compensation, including “maintenance and support”. “We find there is a complete vacuum in the consideration of compensation so far as the sexual offence resulting in the birth of a child. Such a child is clearly a victim of the act of the offender and entitled to compensation independent of the amount paid to his/her mother. Such award would require to include amount towards his/her maintenance and support,” said the bench of Justice Gita Mittal and Justice R K Gauba in its judgment issued on December 9, 2016.

The bench also said the entitlement of the child was traced to provisions of compensation to victims of sexual assault under Section 357 of the CrPC as well as under the POCSO Act, since such a child would be “encovered under the definition of both victim as well as dependent on the victim”.

The direction was issued while upholding the life sentence to a man convicted of raping and impregnating his 14-year-old stepdaughter.

NGO HaQ Center for Child Rights co-director Bharti Ali told The Indian Express the judgment would “set a precedent for expedited compensation” to child victims of sexual abuse.

“This is the first time that rights of a child born out of rape have been considered. So far, we had been struggling to get compensation for the rape victims, since courts are reluctant to grant it till the trial is over,” said Ali.

Advocate Varun Goswami, who was the public prosecutor in the case, said there was now “hope that the legislature will look into it and make provisions”.

The 14-year-old rape victim had given birth to a boy in 2014. The trial court had convicted the man on the basis of DNA evidence proving that he was the father of the child.

The girl alleged that the stepfather had been sexually abusing her since she was 11 and had threatened the lives of her mother and eight-year-old stepbrother.

The man worked as a driver, and had married the mother of the girl after the death of her first husband. However, while upholding the legal entitlement of the child to get compensation from the government, the bench has set aside the Rs 12 lakh compensation granted to the baby by the trial court in this particular case.

The bench noted that since the baby had been given up in adoption, there were “concerns of privacy and confidentiality” which could have “possible repercussions”, “impacting the future welfare of the individuals involved…”

The HC set aside the order of the trial court awarding compensation to the baby, but has allowed the couple who adopted the boy “to approach the legal services authority for compensation in its favour should they feel it necessary to claim on its behalf”.

The bench has also enhanced the amount of compensation to the rape victim, from Rs 3 lakh to Rs 7.5 lakh. The court has now directed that the judgment should be sent to the Delhi State Legal Services Authority (DSLSA) and the Principal Secretary Law of the Delhi government to consider the issue of compensation to the child victims.

Consent

SC: consider biological, not mental age of survivor

AmitAnand Choudhary|`Law won't go by mental age'|Jul 22 2017 : The Times of India (Delhi)

The Supreme Court on Friday ruled that it is the biological and not mental age of a rape survivor which should be the yardstick for deciding whether the case would be filed under the stringent Protection of Children from Sexual Offences (Pocso) Act. A bench of Justices Dipak Misra and R F Nariman said taking into account the mental age of a rape survivor to invoke Pocso would encroach upon legislative function.“...to include the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating certain words to the definition.By saying age would cover mental age has the potential to create immense anomalous situations without there being any guidelines or statutory provisions. Needless to say , they are within the sphere of legislature,“ Justice Misra said in the lead judgment.

“If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula. It is difficult to say in absolute terms,“ he said. The bench turned down a woman's plea seeking prosecution of accused under Pocso for sexually assaulting his 39year-old daughter, who doctors had found to have a mental age of six to eight years. The court said the Act defined a child as any person below eighteen years of age and “we would be doing violence both to the intent and the language of Parliament if we were to read the word mental into Section 2(1) (d) of the Act (definition of child)“. Pocso was brought into force in 2012 to avoid re-victimisation of the child at the hands of the judicial system.

10-year-old rape survivor moves SC for abortion

A 10-year-old rape survivor, who was denied permission by Chandigarh district court to abort her 26-week-old foetus, has approached the Supreme Court to get its permission to terminate her pregnancy.Appearing before a bench, her advocate sought an urgent hearing on her plea to abort the foetus. Agreeing to hear her plea, the court posted the case to July 24. TNN

The nature of the consent

'Nailing rapist hinges on nature of consent'

Shibu Thomas, TNN | Jul 15, 2013

The Times of India

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

Court has to believe victim on consent

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

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

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

`Consent or denial can confuse if dormant': HC (Farooqui case)

The Farooqui case (2015-17)

The Farooqui case (2015-17)

The Farooqui case (2015-17)

The Farooqui case (2015-17)

The Farooqui case (2015-17)

Abhinav Garg | `Consent or denial can confuse if dormant'| Sep 26 2017 : The Times of India (Delhi)

HC: Farooqui Would Not Have Known Her Fear

Referring to the post-Nirbhaya amendments of 2013 tightening rape laws, the Delhi high court on Monday analysed “consent“ that has become crucial in deciding cases of sexual offences against women. While deciding on the appeal of filmmaker Mahmood Farooqui, Justice Ashutosh Kumar stressed that “today, it is expected that consent be viewed as a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions.“

At what point of time and for which particular move Farooqui did not have her consent is not known, the court noted in its discussion and underlined that “sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape.“

It noted that the traditional model is the “affirmative model“ meaning that “yes“ is “yes“ and “no“ is “no“ but said it can't be accepted universally “as in certain cases, there can be an affirmative consent, or a positive denial, but it may remain underlying dormant which could lead to confusion in the mind of the other.“ HC cited “recent studies“ that reveal most sexual interactions are “based on non-verbal communication to initiate and reciprocate consent“ to further argue that there are differences between how men and women initiate and reciprocate sexual consent.

On Farooqui's appeal, HC cited WhatsApp messages and emails exchanged between him and the woman to infer that “there were some earlier encounters which may not have been of such intensity or passion but physical contact in some measure was accepted.“ Therefore, it argued, that on the day of the incident “Farooqui has not been communicated or at least it is not known whether he has been communicated that there was no consent of the prosecutrix.“

Farooqui had contested his conviction, arguing that even a day after the alleged crime, the woman had communicated to him that she liked him, found him attractive and that she considered him to be a good friend, but what happened was not right. He maintained that the woman in her email herself offered an explanation for the incident, saying she knew Farooqui was in a difficult space and was having some issues with his wife and mother as he confided in her.

Dwelling on the issue of consent, HC said Farooqui “had no opportunity to know that there was an element of fear in the mind of the prose cutrix forcing her to go along as after completing the act, he asked her that he wishes to do it again.“ But before she could declare her unequivocal no, “the privacy is disturbed with the ringing of the door bell and the arrival of Farooqui's two associates. In such a scenario, when there are two competing claims juxtaposed with each other, the call is difficult.“

The court gave benefit of doubt to Farooqui and set aside the trial court order that had awarded a seven-year jail term to him, convicting him for the alleged rape of the 30-year-old American researcher at his south Delhi residence in March 2015. It observed that the relationship extended beyond a normal friendship or a relationship between a guide and a researcher.

Conviction rate

2016/ Delhi: Rate lowest in 5 years

The Times of India, Aug 24 2016

Ambika Pandit

Rape conviction rate at 5-yr low

An alarmingly low rate of conviction for rape continues to remain a cause of concern. According to Delhi Police data, it stood at an abysmally low 29.37% in 2015. Between 2011 and 2015, the conviction rate touched a high of 49.25% in 2012 ­ the year the infamous Nirbhaya ca se took place. At a review meeting, led by the department of women and child development, the police shared data related to conviction in various crimes against women from 2011 to 2015. These included rape, dowry deat h, molestation, sexual harassment and cruelty by husband. Sources said serious con cern was raised at the meeting over the data on rape conviction, with the rate having shown a consistent decline from 2012 onwards (see box).With the chief secretary likely to review the women safety schemes later this month, Delhi Police have been asked to submit a detailed analysis on the decline in the conviction rate. They have also been asked to report the number of FIRs filed related to such crimes during the five-year period.

The police are learnt to have pointed that amendments to the law after the December 16 gang rape resulted in a significant rise in the number of cases registered, but not all of them stood the test of court.Also, case load on the judiciary has increased. A senior police official said one of the reasons for the data reflecting a decline in conviction rate is that a case takes four to five years on average to be decided and hence the conviction status for most cases that happened during the said period would take time to come.

The review also sought a status check from the Public Works Department on putting up streetlights in dark spots. As many as 7,304 dark spots were identified in the areas under the jurisdiction of the north corporation and another 124 under the east corporation. The Delhi Urban Shelter Improvement Board identified 1,108 such spots.PWD submitted that surveys have been completed in areas under the north and east corporations and the DUSIB.

LED streetlighting is estimated to cost Rs 19.92 crore and Rs 47.3 lakh in the north and east corporation areas, respectively . While the two civic bodies have given PWD the go-ahead to put up the lights, the South Corporation has decided to undertake the work on its own.

Concerns were also raised at the meeting about the wide gap in the number of dark spots identified by the PWD in the areas under the north and east corporations.

Disposal of rape cases by Indian courts

Rape sentences are influenced by 3 beliefs

Three sexist assumptions that influence rape verdicts, Himanshi Dhawan | TNN | Dec 11, 2016

Shaken by angry protestors on Delhi's Rajpath in the winter of December 2012, the UPA government introduced reforms to the anti-rape law, also known as the Criminal Law (amendment) Act 2013. The legislation brought with it several changes that were urgently required, including broadening the definition of rape, introducing minimum punishment of seven years extendable to life term, and bringing in stalking and voyeurism as offences. However, a new study analysing 800 judgments delivered by Supreme Court and high courts between 1984 and 2009 in rape cases shows that much remains to be done.

This study by National Law University associate professor Mrinal Satish, which is part of his new book Discretion, Discrimination and the Rule of Law, finds that rape sentencing -- expected to be based on facts and evidence -- is influenced by commonly held myths.

1. A virgin suffers more than a married woman

Satish's study found that the loss of chastity/virginity was viewed by courts as the primary 'harm' that rape causes. Hence, if the woman is perceived as being unchaste, this impacts sentencing. "The sentences imposed on defendants convicted of raping unmarried women are higher than those imposed on defendants convicted of raping married women," he says.

Though the victim's sexual history cannot be discussed in the court or brought forward as evidence, medical examination of the victim through the two-finger test throws up this issue. The book notes that if the doctor is unable to insert two fingers, it is understood to indicate that the woman is not "habituated" to intercourse. Court judgments have observed that an unmarried victim's chances are reduced because of her being raped.

In its 1983 Bharwada Bhoginbhai Hirjibhai vs state of Gujarat order, the Supreme Court observed that an "unmarried woman would not falsely allege rape because that would hamper her prospects of finding a match in a "respectable and acceptable" family. In Madan Gopal Kakkad vs Naval Dubey, the SC noted the "pitiable" state of the victim and said, "The victim having lost her virginity still remains unmarried... She is under the impression there is no monsoon season in her life and her future chances for getting married and settling down in a respectable family are completely marred."

2. If the victim is not injured, it could imply consent

Satish's analysis indicates that the presence of injuries (to private parts like the hymen and other parts of the body) resulted in a marked increase in sentence in both trial courts and High Courts in cases of rape, as it acted as an "aggravating factor."

"However, another interpretation of the data could be that the absence of injury' leads to lower sentences. If courts are unable to appreciate the injury inherent in the act of rape itself, they can be expected to give reduced sentences where the only proof is of unconsented-to-sex without further injury. This interpretation is consistent with the data (analysed) and with the myth that non-injurious rapes are not "really" violent crimes," the author says.

3. Acquaintance rape considered less traumatic than by a stranger

Defendants who were in a romantic relationship with the victim, relatives or neighbours got lower sentences than strangers. "In most of these cases, courts were reluctant to impose higher sentences considering the relationship between parties. In some of them (where the defendants were neighbours or relatives) courts explicitly assumed that there must have been a romantic relationship between them and the victim, even if the victim testified that there is no such relationship. So neighbours and relatives got lower sentences," he says. In a particular case of elopement and rape, Satish cites a high court judgment that reduced sentence since the offence had been committed because of "reciprocal passion" and another because the offence was committed "out of youthful exuberance."

Incidentally, according to National Crime Record Bureau statistics for 2015, out of 34,651 rape cases the offender was known to the victim in 95.5% of the cases.

Pending rape cases: 2011–2013

Sex offence cases up after reforms

2014: Rape complaints increase because of police reforms

Somreet Bhattacharya, December 16, 2014

"The Times of India

The “police reforms“ that followed the Nirbhaya case led to a free and easy registration of crimes against women. As a result, now the police have to note down a woman's complaint verbatim. Earlier, the police used to modify the complaints. The new system has also done away with medical tests and inquiries prior to the registration of the case.

Police officers admit that this has increased the number of rape cases registered by nearly 150% of what it used to be. At the same time, it has also led to a lot of frivolous rape cases being filed to settle personal scores as well.

Officers say that the free registration has increased the number of FIRs getting registered per year from 680 in 2012 to 1,559 cases in 2013 and 1,925 cases till November this year. The number of molestation cases has also gone up from 615 in 2012 to 3,347 last year and 3,932 cases till November 2014.

According to a police officer, once a woman registers a complaint, the police have to treat it as a statement and arrest the accused within a week. Even activists agree that now women don't have to run from pillar to post to register an FIR. “Once a case is registered, the general perception of the public, including the family members of the victim, tends to question the character of the woman. People start judging the woman first and then the accused,“ said Manisha Goel, an MBA aspirant and an activist.

The police also admit that the increase in the number of cases has resulted in the piling up of cases at each police station, affecting the investigations. Now, in a rape case, the investigating officer has to submit a chargesheet within 20 days of it being registered, which forces them to complete the probe in a hurry . The problem is compounded by the shortage of women staff at police stations as well, police officers claim.

Pendency falls in 5 HCs: 2012-13

Pendency of rape cases falls in 5 HCs

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

TIMES NEWS NETWORK

The Times of India 2013/08/13

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

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

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

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

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

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

Section 309 of the Code of Criminal Procedure

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

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

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

2012-14: Pending rape cases

Over 31,000 rape cases pending in High Courts

The Times of India

December 17 2014

Pending rape cases and conviction rate (2011-2013)

Crimes against women are on the rise, and so is the pendency of such cases in the subordinate and high courts across the country. In the last three years, number of cases relating to sexual harassment, kidnapping and abduction including rape has gone up from 2.28 lakh to 3.09 lakh. Over 31,000 rape cases are pending in high courts alone.

Concerned at increasing pendency of cases of crime against women and children, the law ministry has written to the state governments and the chief justices of HCs to constitute fast track courts for speedy trial of such cases. The conviction rate in these cases, however, came down from 27% to 22% between 2011 and 2013.

After the December 2012 Delhi rape case, the government had asked the state gov ernments to allocateTOTAL (ALL S additional funds for setting up of fast track courts (FTCs) for trials related to crime against women and children.

This has resulted in at least 318 FTCs being set up by various HCs, designating them exclusively for trials of cases related to crime against women. Madhya Pradesh has set up highest FTCs for women and children (50), followed by West Bengal (48).

There are 310 cases of sexual harassment pending in the Supreme Court while it has L STATES) 318 disposed of 1,455 since 2009. In the HCs, the pendency of rape r cases is as high as 31,386 while e 15,453 have been disposed of in the last three years.

2018, 19: sharp rise in pending rape trials

Pradeep Thakur, March 15, 2020: The Times of India

Top 10 states with highest pendency of rape, POSCO Act cases, as in 2018-19
From: Pradeep Thakur, March 15, 2020: The Times of India

Despite the highest sensitivity shown by courts on speeding up rape cases and an existing law that provides for completion of trial of such cases within a year, the pendency of such cases has increased by more than 46% across the country since March 2018 with Delhi reporting the highest percentage increase of 353% during this period.

The Union law ministry has collected data from different high courts on all pending rape cases across the country, including those against children. A comparative study between the data reported as of March 2018 and December 2019 show pending cases related to rape and those registered under Protection of Children against Sexual Offences (Pocso) Act have increased by over 77,000 — from 1,66,882 to 2,44,001.

The highest pendency in absolute terms has been in UP where the number of cases has increased from 36,000 to 67,000 during this period. Maharashtra, West Bengal, MP, Bihar, Rajasthan, Delhi, in that order, are among the states that have reported highest pendency of rape cases after UP.

Two states, UP and MP, have shown increase in pendency of rape cases by over 80% while Delhi has shown a phenomenal growth of over 353% despite the fact that it has many fast track courts (FTCs) already running to dispose of the pendency.

Established laws on rape and Pocso have failed to have any impact on speeding up disposal, it seems. “The Pocso Act mandates that the investigation in the cases involving children is to be completed in two months (from the date of registration of the FIR) and trial in six months. However, despite a strong law and policy framework, large number of rape and Pocso Act cases are pending in various courts in the country,” the law ministry has noted. It has, however, not mentioned for how long these cases have been undergoing trials.

TOI had reported on December 7, 2019 that more than 96% of the total 1,66,882 pending rape trials were Pocso Act cases, a grim reminder of the fact that children continue to suffer mental trauma for years due to the delay in justice delivery.

Law minister Ravi Shankar Prasad had then given an assurance to Parliament that all pending rape case, including 1,60,989 Pocso Act cases, would be disposed of within a year. The government set a target of one year, spread over 2019-20 and 2020-21, to complete trial of all these pending cases by setting up 1,023 FTCs across the country.

The law ministry, which has received data on all pending rape and Pocso cases from each of the high courts, says there are 389 districts in the country where the number of pending cases under Pocso Act exceeds 100. The government has issued directives to set up a Pocso fast track court in each of these districts, which is also in compliance of a similar directive from the Supreme Court.

A Pocso court also has provision for in-camera trial in a child-friendly environment without revealing the identity of children.

Evidence

Accused can be convicted solely on basis of survivor’s statements

AmitAnand Choudhary, SC: Don't harass rape survivor for evidence, Dec 23, 2016: The Times of India

Courts should not harass a rape survivor by asking her for corroborative evidence to prove her allegations if her testimony is trustworthy , the Supreme Court held. A bench of Justices A K Sikri and A M Sapre said the testimony of a rape survivor was vital and the accused could be convicted solely on the basis of her statements.It said the courts could seek corroboration of her statements only in the rarest of rare cases and only if there were compelling reasons.

“Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury ... the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal,“ the bench said. Justice Sikri, who wrote the judgment for the bench, said that evidence of the girl or woman who complains of rape or sexual molestation should not be viewed with “the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion“.

“If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby (an) insult (to) womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime,“ it said.

The bench passed the or der while sentencing a man to 12 years' imprisonment fo raping his nine-year-old niece. It set aside the order of the Himachal Pradesh high court which had acquitted the accused on the ground o minor discrepancies in th statements of the girl and her mother.

The high court had held that there was delay in lodg ing FIR by the girl's family as the case was registered three years after the crime.

Setting aside the high court order, the Supreme court bench said a rape complaint could not be declared as false because of delay in lodging the case as the reluctance to go to police is because of the social stigma associated with cases such as these.

“A decision to lodge FIR becomes more difficult...when the accused happens to be a family member. In fact, incestuous abuse is still regarded as a taboo to be discussed in public. This reti cence hurts the victim or other family members who struggle to report. After all, in such a situation, not only the honour of the family is at stake, it may antagonise other relations as well,“ the bench said.

“Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintancerapes, when the culprit is a family member, are not even reported for various reasons, “ it said.

False allegations

’No parent will falsely allege child's rape’

No parent can falsely allege child's rape: Court, Mar 21 2017: The Times of India

A Delhi court said that no parent can stoop can stoop so low as to level false allegations that their child has been sexually assaulted and awarded 10 years jail to a 26-year-old man for raping a minor.

“No parent of a young daughter can stoop so low as to bring defame, dishonour and put her to disrespect with such serious allegations. Hence, this defence cannot be accepted or even believed,“ said special judge Sanjay Sharma-I.

In his defence, accused Sonu had argued that the mother of the victim had borrowed money from him and to avoid the repayment, she had falsely implicated him using her daughter.

Sonu was accused of raping his minor neighbour after bundling her and taking her to his room when everybody else was asleep. “It has to be borne in mind that the victim was a small child of 10 years at that time and was not belonging to a very well to do family , but despite that she explained all the acts of the accused with impunity , clarity and confidence,“ the court said.

It also observed that since Sonu did not submit any evidence to support his claim, his argument could not be believed or accepted. “In view of the above discussion , it has been proved by the prosecution beyond reasonable doubt that accused Sonu aka Surender had taken the minor victim to his room and committed penetrative sexual assault upon her on July 23, 2014,“ held the court.

The prosecution had argued that the crime was carried out by the accused when the victim was sleeping along with her family in the open area of her house in north east Delhi and the accused took her to his room, gagged her and raped her. Subsequently , when her family heard her gagging noise they found her in the accused's room and called the police.

HC: ‘Delay in rape plaint doesn’t mean victim lying’

April 8, 2018: The Times of India

Reluctance to report a sexual assault to police immediately does not mean the victim is lying, the Bombay high court has said, upholding the conviction of four men for gangrape.

Justice A M Badar dismissed the appeals of Dattatraya Korde, Ganesh Pardeshi, Pintu Khoskar and Ganesh Zole, who had challenged a sessions court order of April 2013 sentencing them to 10 years in jail for gang-rape. They were convicted of gang-raping a woman and thrashing her male friend on March 15, 2012 when the two were returning from Nashik district. The convicts claimed that they were framed as they had seen victim and her friend in a compromising position and threatened to take them to police.

SC: Rape survivor can be prosecuted for turning hostile

AmitAnand Choudhary, SC: Rape survivor can be prosecuted for turning hostile, September 30, 2018: The Times of India

A rape survivor can be prosecuted for “turning hostile” to protect the accused as the judiciary cannot be a mute spectator when the victim in a criminal offence compromises to protect the perpetrator of a crime, the Supreme Court has said.

A bench of Justices Ranjan Gogoi, Navin Sinha and K M Joseph said an accused can be convicted — even after the rape survivor gave a clean chit — on the basis of other evidence, including medical report. It awarded a 10-year jail term to an accused in a rape case despite the survivor taking the stand that she was not raped.

“A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with rights of the victim, and above all the societal interest for preservation of the rule of law,” the bench said.

The judges said neither the accused nor victim can be permitted to subvert a criminal trial by “stating falsehood and resorting to contrivances as this will become the theatre of the absurd”. They added, “Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal.”

However, the court decided not to prosecute the survivor keeping in mind she was nine at the time of the assault and the crime had occurred 14 years ago. “She may have married and settled to a new life, all of which may possibly be jeopardised ... we refrain from directing her prosecution, which we were otherwise inclined to order,” the court said.

‘Justice can’t be overturned by gullible witnesses’

In the case under consideration, the victim was allegedly raped in 2004 and her mother lodged an FIR. The medical examination was done on the same day and the accused apprehended by police and a Test Identification (TI) parade conducted where he was identified.

Six months later while deposing during trial, the girl and her sister, who was an eyewitness, turned hostile and denied the sexual assault and claimed injuries sustained were due to a fall. The trial court thereafter acquitted the accused.

But the Gujarat HC convicted the accused on the basis of the girl’s medical report and other evidence. The accused approached the SC which dismissed his plea.

“If a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal justice system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation,” the bench said.

Identity of survivor

Must not be disclosed: SC/ 2018

AmitAnand Choudhary, Rape survivors must not be identified: SC, December 12, 2018: The Times of India

‘FIRs Shall Not Be Put In Public Domain’

The Supreme Court asked the states and Union territories to set up ‘onestop centre’ in every district within a year to provide integrated assistance to rape survivors through police, medical and legal services along with counselling, relief and rehabilitation.

Holding that the survivor of a sexual offence is often treated worse than the perpetrator of the crime, a bench of Justices Madan B Lokur and Deepak Gupta said there is need to treat the survivors with sympathy and ensure that they are not harassed while seeking justice.

The court ruled that the identity of rape survivors must not be disclosed by media and prosecution. It said names of survivors could be made public only in public interest with the permission of the court.

“A victim of rape will face hostile discrimination and social ostracisation. Such victim will find it difficult to get a job, get married and get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large,” Justice Gupta said.

The court said police officers investigating such cases should as far as possible either use a pseudonym to describe the survivor unless it is absolutely necessary to write down her identity. “We make it clear that the copy of an FIR relating to the offence of rape against a women or offences against children falling within the purview of Pocso shall not be put in public domain to prevent the name and identity of victim from being disclosed,” it said.

The court, however, said if an adult survivor has no objection to her identity being disclosed, she can authorise any person in writing to disclose her name. The court turned down the plea that in cases where the survivor is no more, her name should be permitted to be disclosed because the name and face can become a rallying point to prevent other such sexual offences.

Marital rape

The debate

Aarti Singh, Why some wives have pinned hopes on this HC verdict, March 11, 2018: The Times of India

It’s still legal to rape your wife in India, but not a live-in partner or separated spouse. A petition seeks to remove the legal immunity given to husbands

In Deepti Naval’s ‘Thoda Sa Aasmaan’ on Doordarshan, the female protagonist walks out on her husband who physically abuses and forces himself on her. That path-breaking show was made 23 years ago when the subject of marital rape was taboo. Reflecting the times, the woman in the tele-drama eventually returns to her husband after he apologises.

Indian women have come a long way since then. Though the law doesn’t criminalise marital rape, many are challenging the exemption that husbands get. Last year, a 25-year-old newly married Delhi woman sought help from an NGO after her family refused to rescue her from the husband who had raped her several times. “My family told me that it was alright for a husband to force himself on his wife but I believe marriage is not a licence to rape,” the survivor told TOI. She not only filed for divorce but refused to return to her parents’ house. A commerce graduate, she took up a job as an office assistant and lives in a shelter run by a self-help group.

Many other survivors of marital rape are now pinning their hopes of justice on the Delhi high court, which is hearing a petition filed by the RIT Foundation, a legal aid group, and All India Democratic Women’s Association (AIDWA), the women’s wing of CPM. The petitioners have sought removal of legal immunity granted to husbands from rape charges under exception 2 of section 375 of IPC. The petitioners are represented by noted lawyer Karuna Nundy and advocate Raghav Awasthi.

Marital rape, the lawyers claim, is more common than people think. According to a 2014 study by Research Institute for Compassionate Economics, the number of women who suffered sexual violence by husbands was 40 times more than non-intimate perpetrators.

The current laws “have caused millions of women to be legally raped,” points out Nundy. The exception, she argues, classifies rape victims in three different categories — married, married and separated, and unmarried. While unmarried women, those in live-in relationships and those legally separated can seek justice under the rape law, married women can’t. This, Nundy, argues violates a woman’s right to equality before law. “It also assumes non-retractable consent of women to sexual intercourse. Besides, it violates a woman’s physical integrity and autonomy that flows directly from the fundamental right to life,” says Nundy.

However, those who oppose criminalisation of marital rape argue the law will be misused. They also point out that there can be no real evidence whether a wife has been raped or not by her husband in a long-time sexual relationship. “Almost all laws are susceptible to misuse. But just because people are falsely accused of murder or financial crimes, no one seeks to de-criminalise murder or money laundering. Secondly, if a rape committed in a long or short-term live-in relationship is treated as rape under law, how is rape in marriage any different?”asks Awasthi.

Although marital rape can be punishable under 498A of IPC, which covers cruelty against women, Nundy says that it does not grant married victims the benefits of anonymity, medical care and legal aid, which are provided to rape victims otherwise.

Though the Justice Verma committee, in its 2013 report post Nirbhaya, had recommended criminalisation of marital rape, no political party, barring CPM, has supported it. In its opposition to the petition, the Union government has cited tradition and religious beliefs that treat marriage as a sacrament.

Marriage in India, Awasthi agrees, has been traditionally treated as a sacrament but he argues that nowhere do Hindu religious texts grant immunity to husbands for rape. “Our culture celebrates the exercise of choice by a woman in matters of selection of partner as well as sexual autonomy,” he says.

Many say that since marriage presumes consent for a sexual relationship, a law against marital rape will cause irreparable damage to the institution. “A law against marital rape will not destroy marriage; rape destroys marriage,” retorts Nundy. Now, it’s up to the courts to give wives the right to say no.

‘Can't criminalize marital rape’: Govt.

The Times of India, Apr 30 2015

Can't criminalize marital rape as marriage sacred in India: Govt

Amid raging debate over the demand to criminalize marital rape, the government on Wednesday told Parliament there is no proposal to make it a criminal offence as the concept cannot be applied in the country where marriage is treated as a `sacrament or sacred'.

“It is considered that the concept of marital rape, as understood internationally , cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of he society to treat the mar riage as a sacrament,“ minister of state for home affairs Haribhai Parathibhai Chaud hary said in a written reply in Rajya Sabha.

The minister's reply came in reponse to a question by DMK's Kanimozhi who asked he home ministry whether the government will bring a bill to amend the Indian Penal Code to remove the exception of marital rape from the definition of rape; and whether UN Committee on Elimination of Discrimination Against Women had recommended to India to criminalize marital rape.

She cited a UN report that says 75% of married women in India were subjected to marital rape and asked whether the government had taken cognizance of it.

Chaudhary replied that the MEA and ministry of women and child development have reported that the UN panel has recommended to criminalize marital rape.

Forcing wife into oral sex is violence, not rape: Guj to HC

December 2, 2017: The Times of India

The state government has submitted before the Gujarat high court that forcing a wife to perform oral sex invites charges of domestic violence and not of rape and unnatural sex.

The high court has formulated three questions whether the act amounts to unnatural sex punishable under Section 377 of IPC, rape under Section 376 and mental and physical cruelty in matrimonial life under Section 498A.

The high court strongly condemned marital rape, but decided to answer the question as to which section of the Indian Penal Code is attracted for forcible oral sex.

In response to the high court’s query, the state government cited various authorities and submitted that there is an exception in the definition of rape for a married couple and hence charges of rape are not attracted in forcible oral sex with a wife.

The government further submitted that since there is no question of rape, there is also no possibility that such an act attracts charges under unnatural sex.

However, the government stated that the gesture by a husband to force a wife to perform oral sex without her consent is definitely an act of cruelty and hence attracts charges under Section 498A of IPC.

On the other hand, the woman’s advocate Rajesh Shah insisted that since the man forced his wife to indulge in oral sex without her consent, it is nothing but rape, unnatural sex and domestic violence.

He also opposed the petition filed by the man for quashing of the FIR lodged by his wife.

After the submissions by both sides were over, Justice J B Pardiwala reserved his judgment on the issue.

The case involves a doctor couple in Sabarkantha district. The woman in question had filed a complaint stating that her husband forced her to perform ‘unnatural sex’. She had also taken up the issue before her community elders, but people laughed at her.

HC: Non-consensual sex with wife not rape

April 3, 2018: The Times of India

The Gujarat high court ruled that a wife cannot charge her husband with marital rape even if the man has sex with her without her consent if she is above 18 years of age.

Justice J B Pardiwala observed that the offence of rape by a husband is not an offence punishable under IPC Section 375, which defines rape. While making this observation, the judge lamented the position of a law which does not enable a woman to prosecute her husband for rape and called for legal provisions so that a woman could protect her body the way she has been enabled to protect her other rights.

The HC quoted, in great detail, legal provisions existing across in countries the world on marital rape and observed that the legislature must criminalise the offence. He said the mere apprehension of its misuse by “unscrupulous” women shou- ld not be a deterrent to enacting legislation to protect women battered by marital rape, which is rampant in India.

The HC made these observations in a case involving a Sabarkantha-based doctor couple. The wife had accused her husband in August last year of forcing her to have sex, including oral sex, without her consent. The HC said a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case.

The HC added that forcing a wife to have sex would attract the charge of outraging the modesty of woman under IPC Sec 354 and ordered cops to probe the case in this direction. It also ruled that a husband forcing his wife to have sex amounts to cruelty and the husband is liable to be punished under IPC Sec 498A.

Marriage, promise of

Sex after false promise of marriage is rape: HC, 2010

Sex after false promise of marriage is rape, says HC

TIMES NEWS NETWORK

The Times of India 2010-02-02

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

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

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

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

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

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

PTI [1] | Jan 5, 2014

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

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

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

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

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

Every breach of promise to marry is not rape: HC/ 2014

Pre-marital sex not shocking; all cases not rape: Bombay HC / Shibu Thomas The Times of India Dec 28 2014

In one of the most significant verdicts delivered in 2014 on an issue that reveals a society in transition, the Bombay high court has ruled that every breach of promise to marry is not rape and premarital sex is no longer shocking, at least in India's big cities.

The observations came earlier this year during the hearing of an anticipatory bail plea filed by Rahul Patil of Nashik who was booked on charges of cheating and rape following a complaint filed by his former girlfriend, Seema Deshmukh (both names changed).

Seema, who claimed she was pregnant with Rahul's child, said despite promising to marry her, he had married another girl. Rahul claimed the relationship was consensual and they could not marry as they were from different religions. Rahul and Seema knew each other since 1999 and had a physical relationship since 2006.

“Nowadays keeping (a) sexual relationship...before marriage is not shocking,“ said Justice Mridula Bhatkar, adding that just because a relationship had soured over time, previous physical relations could not be called rape. Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society ,“ Justice Mridula Bhatkar of Bombay high court said.

The court said a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not.

“Today the law acknowledges live-in relationship(s). The law also acknowledges a woman's right to have sex, a woman's right to be a mother or a woman's right to say no to motherhood.Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted,“ the judge said.

The HC gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape -an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl. The court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape.

(Names of the couple have been changed to protect identity) For the full report, log on to http:www.timesofindia.com

Did the accused make a false promise of marriage? SC asks

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

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

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

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

Sex on pretext of marriage is rape: SC, 2019

IANS| Sex on pretext of marriage is rape: SC

The Supreme Court has ruled that sex on the pretext of marriage is rape and a blow to the honour of a woman.

A bench of Justices L. Nageshwara Rao and M.R. Shah in their recent judgement observed that rape offends a woman’s dignity and esteem, and if for the fact the victim and her rapist have already settled in their lives and taking care of their families, could not be considered a ground to have the crime be null and void. The judgement came on a case registered by a woman accusing a Chhattisgarh-based doctor of raping her in 2013. The woman, a resident of Koni, Bilaspur, was familiar with the accused since 2009 and had a love affair. The accused had promised to marry her but later married another woman to whom he was engaged. IANS

Live in partners’ consensual sex not rape if man fails to marry: SC, 2019

Amit Anand Choudhary, Consensual sex of live-in partners not rape if man fails to marry: Supreme Court, January 3, 2019: The Times of India

The Supreme Court has held that rape charge cannot be invoked in case of consensual sex between live-in partners after relationship ends and the man fails to marry her due to circumstances beyond his control.

A bench of justices AK Sikri and S Abdul Nazeer said that when live-in partners are living together out of love and having consensual sex under the promise of marriage them the woman cannot be allowed to initiate criminal proceedings for rape in case of break down of relationship without tying the knot. It said that such cases could be termed as a case of breach of promise to marry rather than a case of false promise to marry.

"There is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape," the court said.

"There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently," it said.

The bench passed the order while quashing criminal proceedings against a government doctor in Maharashtra against whom a FIR was lodged by a nurse working under him. She alleged in her complaint that she was in a live-in relationship after falling in love with him and indulged in a physical relationship as he promised to marry her. She lodged the case after the doctor married another woman.

The doctor approached the apex court after his plea to quash FIR against him was rejected by Bombay high court.

The bench, after examining the complaint filed by her, came to the conclusion that the case of rape is not made out against him. The court noted that the lady had herself admitted that she had fallen in love with him and she started living together as she needed a companion as she was a widow.

"They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that he has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in in their entirety, they do not make out a case against the appellant," the bench said.

Sex on promise of marriage not rape: HC/ 2020

May 25, 2020: The Times of India

In a significant observation, a judge of the Orissa high court has observed that indulgence in sexual intercourse on false promise of marriage does not amount to rape.

Justice S K Panigrahi also raised questions about whether rape laws should be used to regulate intimate relationships, especially in cases where women enter into a relationship by choice.

Justice Panigrahi made the observations on Thursday while allowing the bail application of a rape accused, setting aside a lower court order.

The 19-year-old tribal woman had lodged a police complaint alleging that the man, a student, had established physical relations with her taking advantage of her innocence and promising that he will marry her. PTI

Sex on marriage promise is not always ape: HC

Abhinav Garg, December 17, 2020: The Times of India

Sex on promise of marriage doesn’t constitute rape if the woman continues to have consensual physical intimacy over a long period of time, Delhi High Court has observed.

Quashing a rape case filed by a woman who off and on had a physical relationship with a man for months, the court noted, “A promise of marriage cannot be held as an inducement for engaging in sex over a protracted and indefinite period of time.”

Justice Vibhu Bakhru noted that sexual relationships could be said to be induced on false promise of marriage if the victim fell prey to it momentarily. “In certain cases, a promise of marriage may induce a party to agree to establish sexual relations, even though the party does not desire to consent to the same. Such inducement in a given moment may elicit consent, even though the concerned party may want to say no,” the court explained.

Only in such cases a false promise to marry with the intention to exploit the other party “may vitiate consent and, thus, constitute an offence of rape under Indian Penal Code section 375”, it added.

But when there is a continuing intimate relationship, “which also involves engaging in sexual activity over a significant period of time,” the same can’t be seen as “involuntary and secured not by affection but only on the lure of marriage,” it observed.

Justice Bakhru upheld a trial court order acquitting the man of rape charge. It was hearing an appeal by the woman, who claimed the accused had cheated her and established repeated physical relation by making a false promise of marriage and had left her for another woman.

The high court said it was evident that the woman established physical relations on her own free will and accord as she had genuine affection for him. It agreed with the finding of the trial court that her consent for physical relations had not been obtained by making any promise of marriage, but talks of marriage, if any, took place later.

The high court pointed out that even in her complaint, the woman stated that she had a physical relationship with the accused in 2008, and after three or four months, he had promised to marry her and she had eloped with him. “In view of the said statement, the woman’s allegation that her consent to engage in sexual activity with the accused, is vitiated, as the same was secured on a promise to get married, is not sustainable” the court observed.

HIGH COURT SAYS

When there is a continuing intimate relationship, ‘which also involves engaging in sexual activity over a period of time’, the same can’t be seen as ‘involuntary and secured not by affection but only on the lure of marriage’

Mindset, changing

'Woman of loose character'

Gang rape by Badaun cops a reminder of 1970s mindset

Dhananjay Mahapatra The Times of India Jan 05 2015

Cries of sexual assault victims seldom got heard in a male chauvinistic society till 1970s. The lawyers for the accused mostly succeeded in portraying the victim as a woman of loose character. The accused got acquitted or was awarded lenient sentence.

The coloured judicial mindset reached its crest on September 15, 1978, when the Supreme Court acquitted two Maharashtra policemen, who were convicted by the Bombay HC for sexually assaulting a minor girl Mathura who had allegedly eloped with her lover [1979 (1) SCR 810].

The SC had based the acquittal because medical report showed Mathura to be habituated to sex and that she did not raise an alarm when being sexually assaulted.

Many cringed at the insensitive `Mathura' judgment. The course correction was done by Justice Krishna Iyer on August 14, 1980 in Rafiq Vs State of UP [1981 (1) SCR 402]. Since then, barring a few exceptions, the judiciary had been stringent in its approach towards accused facing rape charges.

The age-old weapon to demolish victim's charge had been to seek corroborating evidence for her allegations. The lawyers for the accused know that rapes are committed in seclusion and independent witness seldom exist. Iyer had said: “Corroboration as a condition for judicial reliance on the testimony of a prosecutrix (victim) is not a matter of law, but a guidance of prudence under given circumstances.

Talking about the mindset, Justice Iyer had said: “There are several `sacred cows' of the criminal law in Indo-Anglian jurisprudence which are superstitious survivals and need to be re-examined. When rapists are reveling in their promiscuous pursuits and half of humankind -womankind is protesting against its hapless lot, when no woman of hon our will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony , even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable.“

He had also advised against knee-jerk reaction of making the punishment for rape more stringent. Better course would be to sensitize and professionalize the machinery responsible for probe and prosecution, he had said.

Lack of sensitivity towards rape victims among Judges lead to devastating results. In 2007, Oxford Country court judge Julian Hall doubted a 10-year-old girl's age and blamed her provocative sense of dressing to award a friendly 9-month prison term to the man who violated her. Hall forgot rape was a heinous offence which gets severest punishment world over when the victim is a minor. Did it matter how she dressed or how old she appeared to be? Hall probably subscribed to the mindset of another Judge -Betrand Richards of Ipswich Crown Court -who had in 1982 created a sensation by his judgment in another rape case.

A young lady on a lonely stretch stuck out her thumb for a hitch. A young man driving a car gave her a lift. He took advantage of the lonely stretch and raped her. He was convicted for the offence. But Judge Richards let him off with a fine of 2,000 pounds saying the girl was guilty of “contributory negligence“ by knowingly taking the risk of hitchhiking at a lonely hour on a lonely stretch.

The judge did not see the other side -the girl was trying to get away from the lonely stretch and had reposed trust in the young man.

In India, Justice Narain Singh Azad of Madhya Pradesh HC could qualify to be counted in the category of Halls and Richards. Eight years ago, Justice Azad had awarded cursory punishments to convicts in nearly a hundred rape cases on the ground that offenders were illiterate tribals. Fortunately, the SC saw the fallacy in the approach and sent back all the cases to the HC for a fresh hearing.

What the SC laid down in its judgment in the case State of Maharashtra Vs Madhukar Narayan Mardikar [1991 (1) SCC 57] needs to be kept in sight for a change in mindset.

It had said: “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 herself if there is an attempt to violate her person against her wish. She is equally entitled to protection of law.Therefore, merely because she is of easy virtue, her evidence cannot be thrown out.“

2-month rape trial deadline not desirable

Pradeep Thakur 2-month deadline will hit fairness of rape trials: Law min-backed study|Jul 17 2017: The Times of India (Delhi)

A 15-month-long study commissioned by the law ministry on trials of rape survivors has concluded that the provision under Section 309 of the Code of Criminal Procedure (CrPC) to complete a rape trial within two months of filing of the chargesheet was unrealistic. The study said contrary to the provision in Section 309, even the survivor's deposition was not completed in two months. The average time for deposition of the survivor was eight-and-a-half months, which continued beyond 15 months in some cases.

“Delays occur for multiple reasons, including late receipt of forensic reports and systemic factors like increasing case load that make delay unavoidable,“ the report said.The study emphasised on reforms in the functioning of all agencies that contribute to the trial, as well as a stricter approach to adjournments.“Yet, it is unlikely that an entire trial can be completed in two months,“ it said.

The report said amendments made in the CrPC, meant to strengthen rape laws and curtail the time taken for trials, were hardly realistic. A law ministry study says that CrPC amendments meant to boost rape laws were hardly unrealistic.“Setting a mandatory outer limit will neither be realistic nor will it fully accommodate the demands of fair trial. The best option recommended is, therefore, to conduct day-today hearings and complete the deposition of the victim at the commencement of the trial so as to leave little room for influence and coercion,“ it said.

The study , jointly supported by the law ministry and the United Nations Development Programme, was conducted by Partners for Law in Development (PLD), a Delhi-based independent organisation.PLD researchers examined 16 rape survivors with the permission of the Delhi high court and monitored their trials in Delhi's four fast-track courts between January 2014 and March 2015.

The report said only one of the four fast-track courts was found to be adhering to laiddown procedures. Guidelines provide that in every trial, proceedings will be held day to day until all the witnesses have been examined. If the court finds adjournment necessary , the judge has to record the reasons.

The study found no evidence of counselling provided to survivors except in two of the 16 cases. “The counselling provided also does not adhere to the required standards...“it said.

Minors, sex offences against

See also

Crime: India

Crimes against children: India

Minor survivor’s deposition not must for rape conviction: SC

Amit Anand Choudhary, Oct 29, 2017: The Times of India

HIGHLIGHTS

SC said accused can be convicted without minor rape survivor being cross-examined if other evidence was sufficient

The court also directed all HCs to set up special centres for examination of vulnerable witnesses

The Supreme Court said a person accused of sexually assaulting a minor or a woman of unsound mind can be convicted without the rape survivor being cross-examined to corroborate her charges if other evidence was sufficient to prove guilt.

Sealing the escape route of predators who attempt to take advantage of inability of rape survivors, especially minor girls or women with unsound mind, to corroborate evidence during trial, the SC said mere non-examination of such victims during trial was no ground for acquittal of accused. It set aside acquittal of a man and sentenced him to seven years' imprisonment for raping a mentally challenged deaf and dumb minor girl near Nagpur in 2008.

A bench of Justices A K Goel and U U Lalit quashed an order of the Bombay High Court, which had acquitted the accused because of non-examination of the rape survivor by the trial court. The trial court had relied on other corroborative evidence to convict the man as the rape survivor was incapable of facing cross-examination because of her mental and physical deficiencies. The HC had held "since the victim herself was not examined, the factum of rape and involvement of the accused could not be held to have been proved" and set aside his conviction and sentence awarded by the trial court. The accused had sexually assaulted the mentally challenged minor girl after luring her to a secluded place by offering sweets.

Quashing the HC verdict, the SC bench said there was sufficient evidence against the accused to convict him and he could not be acquitted just because the rape survivor was not examined.

"The evidence of the mother of the victim clearly shows that it was the respondent-accused who took away the victim. The victim and the accused were seen together on the date of commission of offence. The victim immediately after the occurrence narrated the same to her mother as to what happened as reflected in the FIR and the version of the mother. Rape has been confirmed by medical evidence. Identity of accused is not in dispute. In these circumstances, the trial court having convicted the respondent, the high court was not justified in setting aside the conviction," it said.

The SC verdict would lay down the guidelines for trial courts and the HCs on the procedure to be adopted while handling criminal cases where the victim is unable to depose and corroborate before the trial judge her ordeal during the sexual assault by the accused.

Importantly, the SC also directed all HCs to set up special centres in each district to create appropriate infrastructure and atmosphere for examination of vulnerable witnesses in criminal cases. It said such centres would encourage victims to come forward and depose fearlessly. It directed the HCs to adopt the guidelines framed by Delhi High Court on recording of statement such witnesses.

"We are of the view that all high courts can adopt such guidelines if the same have not yet been adopted with such modifications as may be deemed necessary. Setting up of one centre for vulnerable witnesses may be perhaps required almost in every district in the country. All the high courts may take appropriate steps in this direction in due course in phases. At least two such centres in the jurisdiction of each high court may be set up within three months from today," the bench said.

The apex court had in 2004 also issued guidelines on holding trial in child sex abuse and rape cases. It had directed that arrangements be made in trial courts to ensure that victims or witnesses do no see the body or face of the accused and the question to be put in cross-examination to the victim should be given in writing.

Child rapists must be castrated: Madras HC

The Times of India, Oct 26 2015

Child rapists must be castrated: Madras HC

A Subramani

The Madras high court, in a landmark order on Friday, a copy of which was made available on Sunday, suggested castration of offenders as a deterrent for curbing spiralling sex offences against children. “Traditional laws are not stringent enough to yield any desired positive result. Suggestion of castration looks barbaric, but barbaric crimes should definitely attract barbaric model of punishment.

Many may not agree... Still, everyone needs to understand the stark reality,” said Justice N Kirubakaran, rejecting a plea from a foreigner facing paedophilia charges to quash the case. The immediate provocation for the Madras high court to suggest castration of those guilty of sexual crimes against children was the brutal gangrape of children in Delhi last week.Calling it a “blood-curdling“ and “horrific“ incident, Justice N Kirubakaran said castration must be an additional punishment for child abusers, especially child rapists.

The judge pointed out that the conviction rate in sex offences against children is a mere 2.4% and between 2008 and 2014, crimes against children had increased by 400%.“This court is sure that additional punishment of castration of child rapists would fetch magical results in preventing and containing child abuses,“ he said.

Procedures, legal

Compounding: Rape cases, like murder, cannot be compounded

Can’t nix rape case even after compromise: SC

Dhananjay.Mahapatra @timesgroup.com New Delhi:

The Times of India Jul 29 2014

Dowry harassment cases are personal in nature and can be quashed if the estranged couple reach a “genuine” compromise, the Supreme Court has ruled.

A bench of Justice Ranjana Desai and N V Ramana drew a contrast between offences under Section 498A IPC and heinous crimes like rape and murder, though all three are non-compoundable.

It said Section 320 of the Criminal Procedure Code provided the list of offences that could be compounded after parties reached a compromise and the courts have to strictly follow that.

Justice Desai said: “It is, therefore, not possible to permit compounding of offences under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are noncompoundable, because such offences are personal in nature and do not have repercussion on society, unlike heinous offences like murder, rape etc.“

The judgment came in a case related to a complaint under Section 498A and Section 4 of Dowry Prohibition Act by a woman against her husband and parents-in-law. Though the Madhya Pradesh HC ac upheld the husband’s conviction. However, it reduced his term to six months imprisonment from a two-year sentence imposed by the trial court.

In SC, the couple reached a compromise, with the husband agreeing to pay Rs 2.5 lakh in addition to bearing the cost of litigation. The woman pleaded for quashing of the case against her estranged husband, which was opposed by the standing counsel for MP. But the bench rejected the state’s objection.

Complaint not to be shown to accused before trial: SC

Dhananjay Mahapatra, October 9, 2020: The Times of India

The Supreme Court said no accused in a sexual harassment case was entitled to access a woman complainant’s statement recorded by a magistrate under Section 164 of the Criminal Procedure Code till the trial court took cognisance of the chargesheet. The ruling came in a much-discussed case involving former minister Swami Chinmayanand, who had been MoS home in the Vajpayee government.

A bench of Justices U U Lalit, Vineet Saran and S Ravindra Bhat disapproved of an Allahabad high court decision to provide a copy of a girl’s statement recorded under Section 164 CrPC to Chinmayanand, accused of sexually harassing her. At that time, she was a student in a Shahjahanpur law college managed by an ashram run by the former minister.

‘Court order needed for copy of statement under Sec 164 CrPC’

The Supreme Court said, “The filing of the chargesheet by itself does not entitle an accused to copies of any of the relevant documents, including statement under Section 164 of the Code. No person is entitled to a copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the chargesheet is filed.” Like the Hathras case which has attracted massive media coverage, the allegation of sexual assault by the former minister had gone viral after the girl made a social media post accusing Chinmayanand of ruining the lives of many girls. Chinmayanand had dismissed the charge as blackmail tactics and counter-alleged that Rs 5 crore demand was made with the threat that non-payment would lead to ruining his reputation. The SC had suo motu taken cognisance of the incident on August 30 last year, the day the girl was traced to Dausa, Rajasthan The SC had ordered, “We are not expressing any opinion regarding the grievances expressed by the girl Miss A and apprehensions of her parents. All that we wish to point out is that the correctness of the grievances/apprehension has to be addressed as per the procedure established in law. In view of above, we direct the chief secretary, Uttar Pradesh, to constitute a special team headed by a police officer in the rank of the inspector general of police to be assisted by the superintendent of police and a team of police officers to enquire into the grievances expressed by Miss A and insofar as the apprehension expressed by the parents of Miss A.”

The SC had also asked the SIT so constituted to investigate the FIR lodged by Chinmayanand about alleged blackmail and demand of extortion money and had requested the chief justice of Allahabad HC to monitor the investigations. The chargesheet was filed after investigations and immediately the accused moved the court for supply of a copy of the Section 164 CrPC statement of the complainant, which was given by the HC to the accused.

The woman had filed a petition challenging the decision of the HC. The Justice Lalit-led bench said there was a clear enunciation of procedure by the SC mandating that a witness’s statement recorded under Section 164 CrPC would be handed over the investigating officer with strict direction not to divulge it to anyone prior to filing of chargesheet.

Compromise or marriage with rape convict: reduction of punishment on

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

SC warns courts against showing leniency towards rape convicts

Dhananjay Mahapatra, TNN | Aug 27, 2013

The Times of India

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

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

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

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

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

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

Compromise: Madras HC reverses order

The Times of India

Jul 12 2015

A Subramani

HC nixes rape `compromise' order

Madras court takes cue from SC's July 1 order, cancels convict's bail

The Madras high court, which had outraged activists by granting bail to a convict in a rape case and asking the survivor and offender to try out a compromise' through mediation, has recalled the order and cancelled interim bail given to the convict. The court has now also stopped the ongoing `mediation' process, and asked the convict, V Mohan, to surrender on July 13.

Justice P Devadass passed the order in view of a Supreme Court order dated July 1 in the State of Madhya Pradesh vs Madanlal case wherein the apex court had held that mediation and compromise should not be an option in rape cases.

“This court by its order dated June 18, directed the parties to go for mediation.In view of the judgment of the Supreme Court in state of Madhya Pradesh vs Madanlal, dated July 1, the said order of this court directing the parties to go for mediation is recalled. Consequently , the interim bail granted to Mohan is cancelled. The officer-in-charge, mediation centre attached to this court shall stop the par ties from attending the mediation. Registrar (Judicial) of this court shall ensure compliance of this order,“ the judge said in his order.

On June 18, Justice Devadass, hearing a criminal appeal by Mohan, highlighted the plight of the rape survivor's child and said the girl child was a bigger victim than the teen-mother. The girl was raped in 2008 by Mohan, her neighbour, when she was just 15. She delivered the child the next year.

A mahila court in Cudda lore had found Mohan guilty of rape in its verdict on July 22, 2014 and sentenced him to seven-year jail, besides a fine of Rs 2 lakh. It was while admitting his appeal in the HC against the conviction that Justice Devadass ordered `me diated settlement'. He even cited an earlier case, which too involved a minor rape survivor, and said he had referred it for mediation. The case was `approaching a happy conclusion' as the offender had agreed to marry the victim, the judge said.

The judgment triggered debate and widespread condemnation. The July 1 judgment of the apex court was, under the circumstances, seen as a message to the Madras high court as well.

Noting that Mohan shall surrender before the mahila court in Cuddalore on July 13, Justice Devadass said that in default the trial court shall issue warrant to secure the petitioneraccused and commit him to Central Prison at Cuddalore.

Leniency: None for rapists:SC

The Times of India, Jul 02 2015

Dhananjay Mahapatra

SC: No leniency to rapist even if case is `settled'

`Compromise Under No Circumstance'

Tired of the lenience high courts continue to show to rapists in defiance of its rulings, the Supreme Court firmly told HCs not to go soft on a rape convict even if he wins over the survivor by promising marriage or striking a compromise. “...In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of,“ a bench of Justices Dipak Misra and P C Pant said. It reversed a Madhya Pradesh high court order allowing a rapist to walk after serving a sentence for little over a year as he had struck a compromise with the parents of the survivor, a minor. A Guna court had sent the man to five years in jail. The bench asked the HC to hear the case afresh on sentence and asked cops to re-arrest the rapist. The Madhya Pradesh HC judgment and the recent Madras HC order granting bail to a rape accused to allow him to meet the survivor to explore the possibility of a compromise appeared to have hurt the judicial conscience of the SC, which had just last year warned courts not to show leniency towards rapists. In 2014, the apex court in Shimbhu and Another vs Haryana had categorically ruled, “Rape is a non-compoundable offence and it is an offence against society and is not a matter to be left for the parties to compromise and settle... a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded.“

The rulings from the two high courts, despite this judgment, appeared to have a disconcerting effect on the SC bench of Justices Dipak Mishra and P C Pant as counsel for MP, C D Singh, pointed out that the HC had dealt with the case in a “laconic“ manner.

Writing the judgment for the bench, Justice Misra said, “Sometimes, solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently , it would be in the realm of a sanctuary of error.

“We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity , the `elan vital', of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility .“

The bench said sexual assault on a woman suffocated her breath and tarnished her reputation, the “richest jewel one could conceive... When a human frame is defiled, the `purest treasure' is lost,“ it said.

Name of survivor should not be mentioned in court verdicts

The Times of India, May 30 2016

Don't reveal rape survivor identity, HC tells judges

Judicial officers should not mention the name of survivors in the judgments passed in sexual assault cases and they “must avoid“ disclosing the identity to protect their reputation, the high court has said. Justice S P Garg said this while noting that a magistrate as well as district and sessions judge had mentioned the name of a victim in their orders in a molestation case.

“Before parting with the case, it is noted that in the judgment dated October 21, 2013, name of the survivor been disclosed mentioned. The trial court was not expected to indicate the survivor's name in the judgment,“ the court said.

“The mistake has been carried out by the district and sessions judge too.Presiding officers must avoid disclosing the identity of the survivor in such cases in the judgment to protect her reputation,“ it said.

The court noted it while dismissing a revision petition filed by a man challenging the legality and correctness of a July 2014 judgment passed by the district and sessions judge on his appeal against a magisterial court's verdict convicting him for the offence under section 354 (molestation) of IPC.

The magistrate had awarded one-year jail term to the man for outraging the modesty of a seven-year-old girl in Okhla here in July 2012.

During the hearing before the high court, the counsel appearing for the man had argued that he was not challenging the findings of the conviction.

The lawyer requested the court to take a lenient view considering the fact that the man was around 70-year-old and has remained in custody for a “sufficient duration“.

The court refused to show any leniency observing that the man was “well aware of the consequences of his act“.

Re-examination of rape survivor

The Times of India, Aug 14 2015

AmitAnand Choudhary

Mindless re-examination of cab rape survivor angers SC

The Supreme Court expressed strong resentment against the mindless re-examination of a rape survivor by the counsel of a former Uber cab driver accused of assaulting the woman on December 5 last year. After a daylong hearing, a bench of Justices J S Khehar and Adarsh Goel criticized the high court order allowing the request of accused Shiv Kumar Yadav to re-examine the survivor despite finding no fault with the trial court's decision to disallow the request.

Before the Supreme Court stayed the HC order on March 10, the counsel for the accused had already examined the rape survivor for three days on the basis of the HC decision allowing the accused to summon her and other witnesses back for re-examination after closure of evidence in the trial.

Counsel for the accused, D K Mishra, said the incompetence of the previous counsel had many loopholes in the de fence case and virtually supported the prosecution. For this reason and to give a fair trial to the accused, the witnesses needed to be re-examined, he said.

Going through the records of the survivor's re-examination, the bench said, “We feel all this is a misuse of the process at your hand. That is the reason we were asking you repeatedly to show us a single relevant question which you had asked the girl in the three days of re-examination. Not a single relevant question has been asked and it appears the nonsensical questions were put to her only to humiliate the girl who has made a serious charge against you.“

Highlighting the general plight of rape survivors who face questions aimed at embarrassing and harassing them, the bench asked, “Is it that simple for a girl to come to court again and again to repeatedly face humiliating questions?“ Mishra argued that the incompetence of the earlier advocate and non-asking of vital questions had left many fronts unattended, leaving the accused vulnerable in the trial, and it was the duty of the court to permit re-examination of the rape survivor and witnesses in the interest of justice and fair trial.

The bench's response was caustic. “If we agree with you (the counsel for the accused), the criminal justice system will be finished. According to you, if a person is a criminal, he should be allowed to sit on society's head and he should be honoured because he has committed a crime.

“If we agree with you, then no trial will ever get completed. At every juncture, the accused will engage a new counsel who will seek recall of the witnesses for re-examination on the pretext that the previous counsel had failed to ask questions of vital importance. It will be impossible for the trial court to return a finding on the guilt and no one accused of crime will ever be punished,“ the bench said.

It agreed with attorney general Mukul Rohatgi that it was a strange case where the HC rejected every ground raised by the accused seeking reexamination yet allowed him to recall witnesses for fresh questioning in the trial court.The bench reserved its verdict on the petition filed by the woman and Delhi Police challenging the Delhi HC verdict.

According to the prosecution, the incident occurred on the night of December 5, 2014 when the woman, an executive working in a company based in Gurgaon, was heading back home.

Testimony: Rape: conviction even if victim does not testify

‘Rape conviction even if victim won’t testify’

Shibu Thomas | TNN

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

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

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

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

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

Quantum of punishment

Life term only if rape is brutal

From the archives of The Times of India 2010

Life term only if rape is brutal, else 10 yrs: HC

TIMES NEWS NETWORK

New Delhi: The Delhi High Court has said that the offence of rape should be accompanied with acts of brutality to merit maximum penalty of life imprisonment for the guilty. Reducing the punishment awarded to a tutor from life imprisonment to 10 years, a bench of justices Pradeep Nandrajog and Suresh Kait said the act of rape should be brutal to attract maximum punishment. The accused had raped his minor student in August 2004.

According to the FIR that was lodged on the complaint of the victim’s mother, she was shocked to witness the crime on returning from market as her daughter took tuitions from the accused.

Interestingly, with solid medical evidence and the testimony of the mother against him, the accused Arun Kumar sought leniency in his sentencing. Kumar pleaded for a lighter prison term saying life sentence was too harsh a verdict.

HC noted that there were no aggravating circumstances in the case and reduced Kumar’s term.

‘‘Counsel for the accused concedes that in view of the evidence, even excluding the DNA report, there is tell tale evidence of the appellant being the tormentor of the young girl,’’ HC observed pointing out just because the victim was a minor, it doesn’t mean the accused be given life term.

‘‘Brutality at the time of rape has to be factored in. If the rape is accompanied by acts of brutality, higher sentence should be imposed,’’ HC said.

Death penalty for repeat rape offenders

June 4, 2019: The Times of India

HC upholds death penalty provision for repeat rape offenders

Mumbai:

In a significant ruling, the Bombay high court upheld the constitutional validity of a provision introduced post the 2012 Nirbhaya gangrape case, allowing life imprisonment or death penalty to repeat convicts in rape cases, and dismissed the petitions filed by three convicts in the sensational Shakti Mill gangrape case of 2013.

Delivering the judgment, a division bench of justices B P Dharmadhikari and Revati Mohite Dere observed that the offence of rape was, in a sense, graver than murder. The three convicts in the Shakti Mill gangrape case had challenged the constitutional validity of section 376(e) of IPC, under which they were sentenced to death for a repeat offence by a sessions court in 2014 — the first such conviction under the changed law. The three were convicted for raping a 22-year-old photojournalist inside the abandoned Shakti Mills compound in Mumbai on August 22, 2013 and for raping an 18-year-old telephone operator at the same place some months earlier.

With the dismissal of the petitions, another HC bench will now take up for final hearing the appeals filed by the convicts challenging their conviction and the death penalty imposed on them by a sessions court and also a petition filed by the state government for confirmation of their sentence. Under section 376(e) of the IPC, which was introduced by the Criminal Law (Amendment) Act, 2013, repeat offenders in rape cases face life imprisonment or death penalty. PTI

Rape within a relationship

Sexual intercourse after “misrepresentation of facts” not rape

Murari Shetye, Sexual relations due to deep love not rape: HC, April 2, 2018: The Times of India

The Goa bench of the Bombay high court has recently held that a man cannot be convicted of rape for having sexual intercourse with a woman by “a misrepresentation of fact” when there is evidence of “a deep love affair” between the two.

The HC set aside a sevenyear jail term and Rs 10,000 fine awarded by a trial court against the accused for raping a woman after making a false promise to marry her.

In 2013, a passing acquaintance between two casino workers turned into a love affair. Yogesh Palekar took the woman home to introduce her to his family. His family was not at home and she stayed back for the night.

‘Woman even tried to withdraw rape complaint’

They had sexual intercourse and the next morning he dropped her home. Later, too, they had sexual intercourse at his residence on three or four occasions. He, however, refused to marry her as she belonged to a lower caste.

The woman then filed a complaint of rape against Palekar and stated that she had agreed for sexual intercourse as he had promised to marry her. In the course of the trial, it was also revealed that the survivor provided Palekar with financial support.

Justice CV Bhadang held that the evidence clearly showed that “the consent could not be said to be based only on the promise” made by Palekar, “but, was out of love affair” between the two.

“Even after this incident, their relationship continued,” the court noted and said, she “used to provide the appellant financial help for his daily needs and both of them had sexual intercourse on about three to four occasions” at his residence. “There was a clear consent, on the basis of which, (they) had physical relationship.”

The woman also “went to the extent of withdrawing” the complaint by filing an affidavit. She took this step as the man was undergoing treatment at the Institute of Psychiatry and Human Behaviour in Goa for depression. She said that she wanted to withdraw the complaint due to emotional and personal reasons, the court said. “This would clearly show that there was deep love affair between the two. It cannot be said that the consent given by the woman was on account of any promise of marriage made by the appellant,” the court said.

As she had helped Palekar financially, it can’t be accepted that he was in a position to dominate or that he used any such position to exploit the woman sexually, it noted.

See also

Age of consent in India

Crimes against women: India

Juveniles, benefits and privileges of

Juvenile delinquency in India Especially the section 'Rape by juveniles'

Premarital sex

Sexual harassment: India

Other articles about rapes in India

Rape in India: longer- term statistics, analyses<> Rapes in India: court verdicts<> Rape definitions unique to India<> Rapes in India: the legal position after 2013 <>Rapes in India: Compensation and help for survivors