|
|
||
|
Shashank Goel* |
||
|
The
word ‘rape’ is derived from the Latin word ‘Rapio’, which means to
seize. Thus rape literally means a forcible seizure. In common parlance, it
means intercourse with a woman without her consent by force, fear or fraud. It
has also been defined, as the carnal knowledge of any woman, above the age of
particular years, against her will; or of a woman child, under that age, with
or against her will. According
to the NCRB (National Crime Records Bureau) statistics of 2005 one woman gets
raped every 29 minutes. This is with reference to only those cases which get
reported, if all those unreported cases are also included, probably the
situation would be far more degrading. After
going through the statistical data provided by NCRB of five years ranging from
2001 till the end of 2005, it could easily be inferred that the number of rape
cases have increased in the country. There was an increase of 1.8 % in 2002
over 2001. Then there was much welcomed decrease by 3.2% in 2003 over 2002 but
the fall was only short lived as there was an increase of 15% in 2004 over
2003 and then an increase of 0.7% in 2005 over 2004 and has since been
increasing continuously. Questions
generally raised are whether the increase in rape incidents is due to the
failure on part of law or due to the fallacy of judiciary or police
authorities? Time and again, various eminent jurists, psychiatrists, law
enforcement officers and social activists have expressed their valuable
annotations on the nightmarish subject, but the green eyed monster is still
surviving. It
is heartening to note that the Indian Judiciary has been sensitive to the
status and dignity of women. As observed by Arijit Pasayat, J, in the Santosh
Kumar case1:
‘When a woman is ravished, what is inflicted is not merely physical injury
but the deep sense of some deathless shame. The offender robs the victim of
her most valuable and priceless possession that is dignity.’
The court, in its earlier rulings, had been perturbed about the social
and ethical denigration, caused by this offence of rape. As observed by
Krishna Iyer, J, in Rafiq’s case2:
‘The escalation of such crimes has reached proportions to a degree that
exposes the pretentions of the nation’s spiritual leadership and celluloid
censorship, puts to shame our ancient cultural heritage and humane claims and
betrays vulgar masculine outrage on human rights of which woman’s personal
dignity is a sacred component.’ Chapter
XVI of Indian Penal Code deals with the offences affecting the human body.
Under this chapter, there is a separate heading for ‘sexual offences’, in
which Section 375 defines rape and Section 376 deals with the punishment for
the same. The legislature with intent to curb the offence has, through
Criminal Law (Amendment) Act, 1983, introduced Sections 376A, 376B, 376C and
376D. In
the present scenario, a related concern, was once raised by Mr. L.K.Advani,
whether rape should be punished with death, which was put to rest by various
observations of judges as well as the Malimath Committee which was set up for
the reform of criminal justice system. According to Malimath Committee it is
the certainty of conviction and not the quantum of punishment which would act
as a deterrent. Malimath Committee rejected death as punishment for rape. As
held in Bachan Singh’s case3,
death must be imposed only in ‘rarest of rare case’. In order to impose
death penalty judges would demand higher standard or degree of proof, which
would only result in lower conviction rate, as it is found in most rape cases
that the only evidence or witness available before the court is that of
prosecutrix herself. Various police officials have expressed that it is the
conviction rate which shall go high in rape cases. Death penalty, as often
suggested by various politicians for the offence of rape, has been severely
criticized by the police officials. Culprits no longer fear punishment since
most rape case trials take years and years before they are finally decided and
most often than not they end up in acquittal. Never ending trials have also
lead to a scenario where the complainant is forced to compromise with the
victim outside the court secretly due to the social pressure, thereby
frustrating the whole purpose of law. What
is the use of increasing the punishment when the chance of conviction itself
is a rarity? Therefore it is the
surety of conviction, in case where accused is guilty, which would make a
difference and not the increase in punishment. Rape accused should not go scot
free. Hence
the sentencing system, shall be used as an instrument to curb the crime and
death penalty being irreversible by nature, should only be imposed in rarest
of rare case. As observed by Arijit Pasayat, J, in Santosh Kumar case4:
‘In operating the sentencing system, law should adopt the corrective
machinery or the deterrence on factual matrix. The criminal law adheres in
general to the principle of proportionality in prescribing liability according
to the culpability of each kind of criminal conduct.’ As
expressed by various police officials, another reason for increase in rape
cases is the problem caused in investigation due to the delay in filing of
F.I.R. Delay in filing of F.I.R may be due to various reasons. Since it is a
sexual offence there might be an initial hesitation in the mind of the victim,
to report the matter to the police as she might fear that the same might
affect her and her family’s reputation. The hesitation may also be that by
disclosing it, it may cast a stigma on her for rest of her life. The problem
faced by investigation authorities in cases of delay is that it becomes
difficult for them to procure evidence against the accused. Since it is an
offence against body, medical evidence plays an important role. With the
passing time, physical injuries get healed up, destroying evidence and
resulting in acquittal.
It
is time that the offence of rape should be curbed with an iron hand. Change in
attitude of society as well as of woman is also required. It is not possible
to have armed police force at every corner of this country; hence it is the
public perception which needs a radical overhauling. Woman too should realize
the importance of being mentally and physically strong enough to deal with the
attackers. Women must be confident enough to deal with the situation and
should know some self-defence techniques. Epilogue In
the end, it could be said that for law to keep its promise of crime free
society, requires not only uniformed and armed police force but also socially
spirited and law abiding citizens. Citizens are required to be sensitized
towards their rights and duties. A better co-ordination is called for between
judiciary and the investigating authorities.
It is the time that the basic principles of fair trial, speedy justice,
diligent prosecution, professional investigation as embedded in Constitution,
in one form or the other, shall be practiced and followed, as failure of law
is the failure of humanity and society as a whole. Women being a counterpart
to humanity should be treated with equal grace and dignity and should not be
looked upon as an object or a thing of ravishment by man. “Even
if all the laws of the land are re-written, it will not make a difference
unless there is a transformation of behavior and attitude of society towards
women.” |
||
|
*.
Amity Law School |
||
