LAW OF THE WEEK

Offence of RAPE


                   ……….Now consent is in danger

Offence of rape is an act which is barbaric in nature. An act in which sexual intercourse is done with a woman against her will, without her consent, by fear, fraud, under the influence of intoxic substance or by reason of unsoundness of mind and if she is under age. In INDIA section 375 of Indian Penal Code defines ‘’RAPE’’.

It is important to understand that rape is an offence which is not only against an individual but the entire society as it hampers the grass root of the governance of the society. And as per the Supreme Court finding it also affects:-

(1) The entire psychology of a woman due to which she becomes emotionally and mentally weak.

(2) It also infringes the basic human right of a person as it violates the ‘’Right to Life’’ which is a fundamental right under article 21 of Indian Constitution 1950.

In India it is very sadden to say that the percentage of this heinous crime is increasing tremendously as in 2006 Cases registered were 19384, which rose to 20737 in 2007. Here we need to understand why the percentage of rape is increasing in our country with a higher growth rate. The answer to this is quite logical because the violators escape easily due to lacunas in our system and mostly delay in trial results in the loss of faith of the people in the judiciary as ‘’justice delayed is justice denied’’. And due to these reasons the violators are not afraid of judiciary and other authorities. So they commit such a dreadful crime which is the slur to a democratic country like India.



Q. How to control this crime?

To control or reduce the percentage of such a heinous crime our judiciary is continuously making efforts in the form of amendments to control it. Such an amendment was made through criminal law amendment act 1983 (act 43 of 1983) through which section 375of I.P.C was amended and some provisions were incorporated for punishing custodians who molested the women under their custody. And because of this section 114A was added in Indian evidence act which says:-

‘In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) or section 376 of the Indian Penal Code, (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent “.

Actually this amendment was made by the court of India after the” Mathura case” by the criminal law amendment act, 1983 and a statutory provision in the face of section 114(A) of the evidence was introduced

Q. Can this section be used to punish innocent?

Albeit the introduction of this section is a good attempt to control this (rape) crime, there is also another side to this section which is contrary and should also be considered as an innocent can also be accused of and be punished of a crime which he has not committed.

As there was a case of a gang rape registered against the station house officer & four other policemen of Inderpuri police station on June 23rd 2009, by a woman of that area that she had been raped by the policemen in police station. On the night of 22nd, she was called by the police to the police station for enquiring about her husband who was allegedly involved in betting cases. Though, it was later proved by the medical examination report that woman was not raped by the policeman. The consequences of woman alleging were so horrifying, as her complaint only triggered protest with scores of people pelting stones at the police station. And on the other hand the mental agony faced by the accused policemen is not even imaginable as the act in a way was an attempt to take away their basic rights.

Therefore, this section should be again considered as in a case there is sexual intercourse between the persons with the consent but the women for any other purpose files the complaint of rape against the person & in court of law says that the sexual intercourse was without her consent, then it would result in punishing that person, who is innocent but according to this section the court will just presume & not consider whether it was a rape or not.

Conclusion

The attempt made by the government through this section is a good attempt but there should be more modifications as this section should not be used against any innocent person. As it is rightly said by Sir William Blackstone that ‘’it is far better that ten guilty persons escape than one innocent suffers’’.

There is one more thing which should be considered which is the delay in judgment which can also result in losing faith in judiciary. As we can see that there was a Buddha Jayanti Park3 gang rape case in which the decision came after 6 years which is quite a long gap. So, we should consider the time factor also as it is rightly said that ‘’Justice delayed is justice denied’’. So we should come with some new ideas like, setting separate rape courts where only rape trials would be conducted and justice woulds be given as soon as possible.

References :

Criminal Law Amendment Act, 1983,(act43 of 1983)
Indian Penal Code, 1860,
 Indian Evidence Act, 1872.

2ZEE NEWS, Tue, June, 23, 2009.

3Indian Express,Sun,Aug,23,2009
www.indianexpress.com/news/buddha-jayanti.../505689/




NEERAJ MURGAI
IIyr L.L.B(3year course)