COURTS OBSERVATIONThe Sessions Court gave very disparaging remarks against the girl, in the judgment and acquitted both the accused. He called Mathura a “shocking liar” and stated that her statements “is riddled with falsehood and improbabilities”. The District Judge even went on to say that the even though she had sexual intercourse, she was not subjected to rape. The Judge even went on to say she would have voluntarily surrendered her body the constable. The case went in appeal to the High Court, and the High Court, reversed the order of acquittal. The High Court in a very reasoned judgment held that the sexual intercourse was indeed rape and was forcible. This conclusion was derived at by the fact that there was traces of semen found on the clothes of the girl as well as Ganpat. The Court also opined that the fact that the fact that semen was not found on the pubic hair nor on the vaginal-smears since she was examined about 20 hours after the event. The High Court also opined that it was improbable that Mathura would readily agree for sexual intercourse considering that both the accused were strangers. The High Court was also of the view that mere passive submission or resignation of girl’s body does not mean that the girl has willingly consented to it. In appeal before the Supreme Court, the Court reversed the findings of the High Court and acquitted the accused. The Court observed that she was subjected to no fear of death or hurt, which may have led her to submit to the act and that there was no marks of injury on her person. They were of the view that these circumstances show that the whole affair was peaceful and that the story of stiff resistance having been put up by the girl was totally false. Brushing aside the finding of the High Court on passive submission, the Supreme Court stated that the girl willingly followed the accused persons, whereas she could have chosen not to do so, since she was also accompanied by the two other persons. The Court also disagreed with the observations of the High Court regarding the conduct of Tukaram and opined that the circumstance as relied by the HC was ‘capable of more explanations than one’ . In this way, the conviction recorded against as well as, the sentences imposed upon the appellants by the High Court were set aside. The judgment created a huge uproar by women organisations, jurists etc. The main point of uproar has been the fact that this was custodial rape. The court conveniently ignored the fact that a woman may be subjected to custodial rape due to the fear of being beaten up or for the fear of the safety of her family members. Another point of uproar has been the fact as per the medical evidence, there was no penetration, and thus the court concluded that she was not raped. The SC in Mathura’s case did not convict the accused persons because there was no actual penetration and no visible injury on the body of the girl. However, with time Supreme Court has now consistently held that in absence of any definitive medical proof that an actual sexual intercourse has actually taken place, the conviction can be based on other facts and circumstances along with the version of the victim (called as procecutrix in legal term).
The Criminal Law (Amendment) Act 1983Acting on huge public criticism of the judiciary in the inadequacy of the law of rape patent in a number of judgments of the Apex Court and its failure to safeguard the rights of the innocent victims against this crime, the Parliament, in 1983 and 2003, extensively amended the law of rape, to make it more realistic. Some of the important changes brought about by the Criminal Law (Amendment) Act 43 of 1983 are: 2
- A new clause fifthly has been inserted in place of the then existing clause fifthly, which has been renumbered as clause sixthly to Section 375 IPC. This clause negatives the consent of the women for the purpose of the offence of rape if the woman is of unsound mind, or is under the influence of intoxication at the relevant time. Such consent will not be considered as valid defense and the accused will be held liable for the offence.
- A new category of offence i.e. Custodial Rape was introduced by inserting Section 376B to 376 D IPC.
- Section 376A IPC makes sexual intercourse with one’s own wife without her consent under a decree of separation punishable.
- The punishment for rape provided in Section 376 IPC is minimum seven years imprisonment under clause 1 and ten years under clause 2.
- Section 228A IPC prohibits the disclosure of the identity of victims in rape cases under sections 376, 376A to 376D, IPC.
- The Evidence Act, 1872 was amended by inserting Sec.114A drawing a conclusive presumption as to the absence of consent of the woman in case of prosecution of rape under Sec 376 (2) clauses (a) to (g), IPC shifting the burden of proof of innocence on the accused.
- Section 327 CrPC which confers the right of an open court trial has been amended making the provisions for trial of rape cases or an offence under Section 376A to 376D, IPC in camera and prohibition of publication of trial proceedings in such cases without the prior approval of the court.
Barriers to Justice:The problem with the present rape laws is manifold. These issues have to be addressed as soon as possible, considering the fact that such offences are on a rise. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse. Firstly the rape laws do not recognize marital rape etc. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet the Courts do not consider this rape. In R Vs. R, the House of Lords in England in the year 1991, widened the scope of criminal liability by declaring that the husband could be charged as a principal offender in the rape of his wife. However, the above decision of the House of Lords has not been followed in India- where marital exemption to the husband still exists. One of the major obstacles in delivering justice in rape cases or for that matter almost all criminal cases is the poor quality of investigations. The victims are not taken for prompt medical examination. The long time that is taken to complete a rape trial is another impediment. As observed by Krishna Iyer, J. in Rafique’s case 3 “When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry.” The Supreme Court has laid down the following guidelines for the trial of rape cases 4 1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance. 2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help. 3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated. 4. A list of lawyers willing to act in these cases should be kept at the police station. 5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the Police Station before leave of the Court is sought or obtained. 6. In all rape trials, anonymity of the victim must be maintained 7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses. 8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape. The National Commission for Women be asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes. As observed by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status.”
2 Critical Appraisal of Mathura Rape case on www.legalsutra.com
The author is an advocate in the Supreme Court and Delhi High Court. And writes under the name of Saima. Her Twitter handle is @saima2000
Founder at Aam Janata
Vidyut has a keen interest in mass psychology and using it as a lens to understand contemporary politics, social inequality and other dynamics of power within the country. She is also into Linux and internet applications and servers and has sees technology as an important area India lacks security in.
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