Your dis-honour
Gender equality[2] includes protection from sexual assault and harassment and right to work with dignity, which is a universally recognised basic human right[3]. Among metropolitan cities, the national capital of Delhi[4] continued to have the highest incidence of rape at 1253 cases in 2019, while Jaipur[5] had the highest rape rate (per 100,000 population).
375 of the Indian Penal Code were present in the case of the sexual intercourse attributed to the appellant. That section lays down:
375 ‘A man[6] is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
First.-Against her will[7].
Secondly.-Without her consent[8].
Thirdly.-With her consent, when her consent has been obtained by putting her in fear of death, or of hurt[9].
Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With or without her consent, when she is under sixteen years of age[10].
Explanation.- Penetration [11]is sufficient to constitute the sexual intercourse necessary to the offence of rape.
- Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.’[12]
Except in certain aggravated situations, the punishment will be imprisonment of not less than seven years but it may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine[13].
Sexual violence is a crime rooted in control and patriarchy, including male entitlement. In India, society often still shifts blame onto survivors, shaming a survivor and her family into silence. However, if she deviates from the norm and decides to report it, the eyes of justice are unbiased.
TUKA RAM AND ANR.
Vs.
RESPONDENT: STATE OF MAHARASHTRA
DATE OF JUDGMENT15/09/1978[14]
BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. SINGH, JASWANT KAILASAM,
P.S. CITATION: 1979 AIR 185 1979 SCR (1) 810 1979 SCC (2) 143
ACT: Indian Penal Code Sec. 375-Rape-What is the meaning of without consent-Obtaining consent by putting fear of death or hurt-Criminal trial-Onus is on prosecution to prove all the ingredients of an offence.
The prosecution alleged that appellant No. 1, the Police Head Constable and appellant No. 2 Police Constable attached to Desai Gunj Police Station raped Mathura (P.W. 1) in the police station. Mathura’s parents died when she was a child and she was living with her brother, Gama. Both of them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work and during the course of her visits to that house she came in contact with Ashok who was the sister’s son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura decided to become husband and wife. On 26th of March, 1972 Gama lodged a report at the police station alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok. The report was recorded by Head Constable Baburao, at whose instance all the three persons complained against as well as Mathura were brought to the police station[15] at about 9 p.m. and the statements of Ashok and Mathura were recorded. By that time, it was 10.30 p.m. and Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. After Baburao left Mathura, Nunshi and Gama and Ashok started to leave the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. The case of the prosecution is that immediately thereafter Ganpat, appellant No. 1, took Mathura into a latrine raped her and thereafter dragged her to a Chhapri on the back side and raped her again. Thereafter[16], appellant No. 2 fondled with her private parts but could not rape her because he was in a highly intoxicated condition.[17]
Nunshi, Gama and Ashok who were waiting outside the police station for Mathura grew suspicious. They, therefore shouted and attracted a crowd. A complaint was lodged.
Mathura was examined by a doctor who found that she had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily.[18] The age of the girl was estimated by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the traces of semen in the pubic hair and vaginal-smear slides. [19]The presence of semen was, however, detected on the girl’s clothes. [20]
The Sessions Judge found that there was no satisfactory evidence[21] to prove that Mathura was below 16 years of age on the date of occurrence. He held that Mathura was "a shocking liar" whose testimony "is riddled with falsehood and improbabilities". The Court came to the conclusion that she had sexual intercourse while at the police station but rape had not been proved and that she was habituated to sexual intercourse, but finding that Nunshi and Ashok would get angry with her, she had to sound virtuous before them. Really speaking, she would have surrendered her body to the Constable.
The District Judge, therefore, acquitted the appellants. The High Court reversed the order of acquittal. The High Court found that the sexual intercourse was forcible and amounted to rape. Since both the accused were strangers to Mathura, it was highly improbable that Mathura would make any overtures or invite the accused to satisfy her sexual desire. It is possible that a girl who was involved in a complaint filed by her brother would make such overtures or advances. However the initiative must have come from the accused and if such initiative came from the accused, she could not have resisted the same.
About appellant Tuka Ram, the Court believed that he had not made any attempt[22] to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.
In an appeal by special leave, the appellant contended that :-
(1) there is no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse. Therefore, it had to be inferred from the available circumstances and it could not be deduced from those circumstances that the girl had been subjected to or was under any fear or compulsion as would justify an inference of any "passive submission."
(2) The alleged intercourse was a peaceful affair and the story of stiff resistance is all false.
(3) The averments of the girl that she had shouted loudly is false.
(4) The reasoning of the High Court that the girl must have submitted to sexual intercourse because of the fear does not amount to consent.
He added however that there was a world of difference between "sexual intercourse" and "rape", and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value.
The High Court took note of the various findings arrived at by the Learned Sessions Judge and then itself proceeded to sift the evidence bearing in mind the principle that a reversal of the acquittal would not be justified if the view taken by the trial court was reasonably possible, even though the High Court was inclined to take a different view of the facts. It has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts.[23]
In relation to Tukaram appellant, the High Court did not believe that he had made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant. It was in these premises that the High Court convicted and sentenced the two appellants as aforesaid.[24]
Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao (P.W. 8) had recorded her statement, she and Gama had. started leaving the police station and were passing through the entrance door when Ganpat appellant caught hold of her and took her away to the latrine. [25]
Much has been said, much has been skimmed, much has been felt, but one principle exists. It is better that ten guilty persons escape than that one innocent suffer. In this case, 88 innocents suffer the crimes of rape on a daily basis, in India itself. And that is just the ones who report it.
This is not a case to rest, your honour. Justice is in demand to be served to the persons that are deemed worthy of their crimes.
[1] The Lady Justice, the symbol akin to the Legal System, its significance is deliberated in this article with an overview on justice, nyaya and Mother and Child symbol of Supreme Court of India. She carries the scale, a sword or scroll and she is often blindfolded. She symbolizes this profession so universally that it is important for every lawyer, judge and even support system entering the profession to understand its significance. In a traditionally male-dominated ancient world, she was a predominant and coveted authority of prophecy, advice, and law. The Lady Justice is a metaphorical personification of the moral force in judicial systems. Her attributes are a blindfold, a balance, and a sword. Lady Justice is also known as Iustitia or Justitia after Latin: Iustitia, the Roman goddess of Justice, who is equivalent to the Greek goddess Themis and Dike. The Scales of Justice represents the balance of the individual against the needs of society and a fair balance between interests of one individual and those of another. The personification of justice balancing the scales dates back to the Egyptian Goddess of Justice, Maat, who stood for truth and fairness. The scales represent that Lady Justice carefully weighs the claims of each side. It is important to note that she wears a sari, and a sari is meant to be undraped. [2] Gender equality is ironically different for each gender, and it is how it has been and will continue to be. Man and woman were not made to be the same, and the law reminds us that every day. The law is written to reinforce the norms of male supremacy and female subjugation and provide “justice” for each of the binaries. The law provides a carefully written framework that works towards [3] Sexual violence is a major problem faced by women and girls in India, to the extent which it is the 4th most common crime in India. That is, when it is reported. [4] Delhi is the heart of India. It sets precedent for the mentality of the public. [5] Jaipur is where I was born, and where my liveliness, ironically, died. I lost the case, just like every 7 in 10 girls do. [6] The consideration of a woman assaulting a man is preposterous, of course. Researchers have found that at least 1 in 6 men have experienced sexual abuse or assault, whether in childhood or as adults. And this is probably a low estimate, since it doesn’t include noncontact experiences, which can also have lasting negative effects. [7] Her will is that she is an object of submission. She must obey passively. [8] Consent or non-consent is for the perpetrator to decide. A ‘no’ is a yes, crying is a yes, begging is a yes, unconscious is a yes, hitting is a yes, running away is a yes, pleading is a yes, asking for justice is a yes, silence is a yes, bleeding from severe injuries is a yes, screaming is a yes, covering the mouth when screaming is a yes. [9] On Sept 12 2021, a woman, 34, was found lying unconscious inside an open mini bus in the suburban neighborhood of Sakinaka, Mumbai Police Commissioner Hemant Nagrale said at a news conference Saturday. An Indian woman allegedly assaulted and raped in Mumbai on Friday has died of her injuries, in a case activists say bears a striking similarity to the brutal 2012 gang-rape and murder of a student that prompted millions of women to push for tougher sexual assault laws in the country. She was allegedly raped and assaulted with an iron rod, according to CNN affiliate News-18, who cited a local official. The woman was admitted to Rajawadi Hospital and initially responded to treatment, but died from her injures on Saturday, Nagrale said. Police arrested a man on suspicion of rape and murder, after allegedly identifying him from CCTV footage, Nagrale added. The man is yet to be formally charged and will remain in police custody until September 21. Persuant to the 4th section of 375, the woman died of her injuries, and her lack of life is the reason why the man should live a life free of punishment. [10] It was 14 before. [11] The Criminal Law (Amendment) Act, 2013 or the Nirbhaya Act, was passed in Parliament to amend Section 375. To remove ambiguity in the earlier law and provide for strict punishment in cases of rarest cases of sexual violence, the legislation was expanded to define acts like penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any extent into the aforesaid woman body parts (or making another person do so), as constituting an offence of sexual assault. Applying mouth or touching private parts were also classified as offences of sexual assault. [12] His own wife is his property. This law is arbitrary. After marrying him, she signs a contract to be under his command, passively, for the rest of her life. [13] If the victim is transgender, however, the rapist is punished by a maximum of two years in prison. [14] Let it be known that this case took place in 1978, and a lot has changed since then. Marital rape is still legal. The number of cases have increased. At least the ones that are reported. All sexual acts between the members of the same sex, consensual or forced, was previously a crime under Section 377 of Indian penal code, after the 2013 Criminal Law reform, with punishment the same as that of rape. The sentence and punishment years have changed but are implemented sparingly. Corruption and bribes are an easy deterrent of the crime: the perpetrators are the victim. [15] The purpose of the police in India is to fulfill duties based on border responsibilities, in the areas of maintenance of public peace and order, crime prevention, investigation, and detection, collection of intelligence, VIP security, counter-terrorism, border policing, railway policing, tackling smuggling, drug trafficking, economic offences, corruption. Of course, the police can never cause harm to the public [16] Note how the personal is political. Reread the repition of “Thereafter”. [17] After Baburao (P.W. 8) had gone away, Mathura (P.W. 1), Nunshi (P.W. 2), Gama (P.W. 3) and Ashok started leaving the police station. The appellants (criminals), however, asked Mathura (P.W. 1) to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura (P.W.1) into a latrine situated at the rear of the main building, loosened her under-wear, lit a torch and stared at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura (P.W. 1) was and fondled her private parts. He also wanted to rape her but was unable to do so, unfortunately, for the reason that he was in a highly intoxicated condition. [18] [19] The fact that semen was found neither on the public hair nor on the vaginal-smears taken from her person, was considered to be of no consequence by reason of the circumstance that the girl was examined by the lady doctor about 20 hours after the event, and of the probability that she had taken a bath in the, meantime. [20] Nunshi (P.W. 2) took Mathura (P.W. 1) to Dr. Khume (P.W. 9) and the former told him that the girl was subjected to rape by a police constable and a Head Constable in police station Desai Gunj. The doctor told them to go to the police station and lodge a report there. [21] No evidence, including her testimony, is ever sufficient to prove the crime, because under the eyes of the law, a crime is un-punishable when it doesn’t exist, and a crime doesn’t exist when it is not committed. [22] The intention is judged, not the action – lack of personal knowledge that involves entering the person’s mind. [23] The prosecution has the burden of the highest kind – to prove a crime beyond a reasonable doubt. [24] The main contention which has been raised before us on behalf of the appellants is that no direct evidence being available about the nature of the consent of the girl to the alleged act of sexual intercourse, the same had to be inferred from the available circumstances and that from those circumstances it could not be deduced that the girl had been subjected to or was under any fear or compulsion such as would justify an inference of any "passive submission", and this contention appears to us to be wellbased. After all, she is a girl. [25] And if that be so, it would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nunshi) and had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake of the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as "passive submission".
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