Women and girls are violated but the fear of stigma of being a victim of this heinous crime silences the scream of the victim. While on the one hand, ignorance of the law that is behind them to give them justice denies her of the justice that she deserves and injustice prevails. Today, in Nagaland rape cases are on the rise, we hear of horrifying stories of rape, molestation, sexual assault, murder etc. in this so called civilized state of ours. One wonders what’s happening to our society which has become a place where we live in fear and insecurity. Our streets are not safe anymore. And not to talk of streets, some homes are not safe anymore. Brute force and animal like behaviors prevail. But still many of us keep quiet for one reason or the other. Let us not remain silent spectators and be a party to the crime anymore, remember we are either a part of the problem or a part of the solution. Which one are we?
Supreme Court’s Guidelines for Rape Cases
Right to Representation:
*Complainant of sexual assault has a right to be represented by a counsel from the beginning of the case, i.e., from lodging of an F.I.R. at police station till the final outcome of the case.
*Complainant has a right to be informed by the police about her right to legal representation.
*Complainant has a right to get a list of advocates, from the police stations, who are willing to act in these cases.
*Advocate shall be appointed by court, upon application by the police at the earliest convenient moment. In order to ensure that victims are questioned without undue delay, advocates shall be authorized to act at the police station before leave of the court was sought or obtained.
Right to Counselling:
*Complainant or victim has a right to Counselling assistance to overcome the trauma and medical assistance as per the need.
ROLE OF JUDGES:
*Should conduct in- camera trails for these cases.
*Should not be a silent spectator while the victim of the crime is being cross-examined by the defense.
*Should have effective control in recording the evidence of the court.
*Should ensure that through cross-examination the victim is not further harassed, humiliated and traumatized
*Should handle or deal with such cases with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation.
*Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt
*Judges can order investigation.
ROLE OF DOCTORS:
*Should cater the medical needs of victim with utmost priority.
*No hospital can deny conducting medical legal checkup (M.L.C.) of victim who has come to the hospital without police referral.
*They have to be sensitive in handling these cases.
*Should record their findings clearly.
Compensation:
*Victim has a right to be awarded compensation by court on conviction of the offender.
*Victim can get compensation from the Criminal Injuries Compensation Board whether or not a conviction has taken place. The board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of childbirth if this occurred as a result of the rape.
*The victim is also liable to get interim compensation by court when trial is pending.
*In case of grant of interim compensation, victim can apply for more compensation, if required at the finality of the case.
Torts- Vicarious Liability:
The Supreme Court has extended the “tort” principal of vicarious liability to rape cases. Under this principal compensation can be granted against the employer for the rape committed by employee.
The procedures needed to be followed by the victim for registering cases:
*After the occurrence of crime, the victim should not take bathe and should not change clothes.
*Victim should lodge the complaint at the nearby police station as soon as possible for investigation, arrest, trial and punishment of the perpetrator.
*Victim or the complainant must file a written complaint and should sign it. If the complainant is illiterate and gives an oral complaint, the officer in charge should take it down in writing and read it over to the complainant and get it signed.
*The victim should undergo a medical legal checkup (M.L.C.) for collection of evidence.
*Victim should give her clothes to the police for evidence and get them sealed.
What is an F.I.R. (First Information Report)?
It’s the first report of a crime made to the police. It is the statement, which is made soon after the complaint is made.
If the officer incharge of a police station refuses to register F.I.R., then meet or send a copy of the complaint in writing to the Deputy Commissioner of Police or the Superintendent of Police. If action is still not taken, then file the complaint before the magistrate within whose jurisdiction the police station falls.
F.I.R. must contain the following points:
*Whether the complainant is an eye- witness or hearsay witness.
*Nature of the offence. (rape, molestation, unnatural sex, etc.,) Detailed description of the accused /perpetrator (his colour, height, approximate age, features, clothing, distinctive marks on his face, etc.,) and traces left behind, if any.
*Name and identity of the victim of the crime.
*Date, time of the occurrence, place where crime was committed.
*Details of the crime (describe the actual occurrence of the crime, the part played by each accused and the weapons used by them, etc.).
*Name and address of the witnesses of the crime.
Complainant/Victim has a right to get a free copy of F.I.R., and M.L.C. report.
Delay in F.I.R. :
The Supreme Court has held that if the victim due to some reasonable reason had delayed in registering F.I.R., then the delay does not hamper the case.
Role of Police:
*Should intervene in the case with utmost sensitivity.
*Should register the case as soon as they receive complaint.
*Should provide legal and medical assistance to the victim.
*Investigating officer should be a trained lady police officer.
* Only a lady police officer can talk to the victim and her family in a comfortable and private place, for the statement and accompany the victim to the hospital for M.L.C., and during trails.
*Investigating officer should produce the victim before a magistrate for recording statement under 164 of Cr.P.C. at the earliest.
*They should visit the victim’s place in plain clothes, and not call the victim to the police station.
*Investigating officer should be guided by a senior police officer of the department.
If a victim gets pregnant due to the incident and wants to terminate the pregnancy, then it is the duty of the investigating officer to get medical termination of pregnancy (M.T.P.) done in a government hospital and should preserve the tissue for further investigation.
Role of Media:
*Should be sensitive while reporting the issue.
*Should not reveal the identity of the victim including other details, which is related to the identity of the victim.
*Should not pressurize any victim and her family members for an interview.
SUPREME COURT GUDELINES FOR RAPE CASES
1. The Complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help to different nature from other agencies, for example, mind counseling of medical assistance. It is important to secure continuity of assistance by ensuring that same person who looked after the complainant’s interests in the police station represent her till the end of the case;
2. Legal assistance will have to be provided at the police station since the victim of sexual assault might be very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her;
3. The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed;
4. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have particular lawyer in mind or whose own lawyer was unavailable;
5. The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained;
6. In rape trials anonymity of the victim must be maintained, as far as necessary.
7. It is necessary, having regard to the Directive Principles contained under 38 (1) of the Constitution of India to set up Criminal Injuries Compensation Board, Rape victims frequently incur substantial financial loss. Some, for example, are too traumatized to continue in employment.
8. Compensation for victims shall be awarded by the court on 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 and shock as well as loss of earnings due to pregnancy and the expenses of childbirth if this occurred as a result of the rape.
Relevant provisions of the Indian Penal Code (I.P.C.)
SEC-354-whoever assaults or uses criminal force on any woman with an intention to outrage her modesty is punishable with imprisonment for a term, which may extend to 2years, or with fine, or with both.
SEC-375-A man 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 six following description: -
1. Against her will.
2. Without her consent with her consent, when, her consent has been obtained by putting her under threat.
3. With or without her consent, when she is under sixteen years of age.
SEC-376- (1) Whoever, except in the case provided for by sub section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which maybe for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than seven years.
SEC-376- (2)- whoever, Being a police officer commits rape-Within the limits of the police station to which he is appointed; or In the premises of any station house whether or not situated in the police station to which he is appointed; On a woman in his custody or in the custody of a police officer subordinate to him:
*Being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public subordinate to him; or
*Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution;or
*Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
*Commits rape on a woman knowing her to be pregnant; or
*Commits rape on a woman when she is under twelve years of age; or
*Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine; Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years.
SEC-376 (A) Intercourse by a man with his wife during separation- Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extent to two years and shall also be liable to fine.
SEC-376 (B) Intercourse by public servant with woman in his custody. Whoever being a public servant, takes advantage of his official position and induces or seduces any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extent to five years and shall also be liable to fine.
SEC-376 (C) Intercourse by superintendent of jail, remand home etc. Whoever being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and induces or seduces any female inmate of such hail, remand home, place or institution to have sexual intercourse with him, Such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extent to five years and shall also be liable to fine.
SEC-376 (D) Intercourse by any member of the management or staff of a hospital with any woman in that hospital. Whoever being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
SEC-377- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
K. Ela Prodigals’ Home
(Courtesy: Human Rights Law Network)
