CRMINAL LAW Project GANGRAPE

Submitted by: MANSI KHANNA 3RD Semester, 2nd Year

It is my imperative duty to thank the following people for the successful completion of my Law of Crimes project,

Professor Dr. Rose Varghese for the clarity he brings into teaching thus enabling us to have a better understanding of his subject. I also feel obliged to thank her for providing us with such easy topics to choose from.

The very cooperative and friendly staff members in the Central and Law Library
who were instrumental in our finding the necessary books without wasting much time. It has to be noted that their contribution is essential as our University is yet to get a fully functional centralized database for its library.

Mansi Khanna 3rd Semester, 2nd Year Faculty of law, JMI

What is crime? A crime, also called an offence or a criminal offence, is an act harmful not only to some individual, but also to the community or the state (a public wrong). Such acts are forbidden and punishable by law. An act, which is a crime today, may not be a crime tomorrow, if the legislature so decides. For instance, polygamy1, dowry2, untouchability3 are crimes that were not so few years ago. According to Merriam Webster dictionary, criminal law, the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders.

Principles of criminal law The traditional approach to criminal law has been that a crime is an act that is morally wrong. The purpose of criminal sanctions was to make the offender give retribution for harm done and expiate his moral guilt; punishment was to be meted out in proportion to the guilt of the accused. In modern times more rationalistic and pragmatic views have predominated. Writers of the Enlightenment such as Cesare Beccaria in Italy, Montesquieu and Voltaire in France, Jeremy Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the main purpose of criminal law to be the prevention of crime. With the development of the social sciences, there arose new concepts, such as those of the protection of the public and the reform of
1

See, the Hindu Marriage Act, 1995, sections 5, 17. A man is liable for conviction for bigamy under section 494 of the IPC. Muslim men are governed by their personal laws and are exempt from the purview of section 494. 2 The Dowry Prohibition Act, 1961, sections 3 and 4 make the giving and taking or demanding of dowry punishable. 3 See the Protection of Civil Rights Act, 1955, section 3.

the offender. Such a purpose can be seen in the German criminal code of 1998, which admonished the courts that the effects which the punishment will be expected to have on the perpetrators future life in society shall be considered. In the United States a Code proposed by the American Law Institute in 1962 states that an objective of criminal law should be to give fair warning of the nature of the conduct declared to constitute an offense and to promote the correction and rehabilitation of offenders. Indian Criminal Laws are divided into three major acts i.e. Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and Indian, 1872. Besides these major acts, special Criminal Laws are also passed by Indian Parliament i.e. NDPS, Prevention of Corruption Act, Food Adulteration Act, Dowry Prevention Act, Commission of Sati Act etc. thousands of minor laws are made in India.

INDIAN PENAL CODE Indian Penal Code (IPC, Hindi: ) is the main criminal code of

India. It is a comprehensive code, intended to cover all substantive aspects of criminal law. It was drafted in 1860 and came into force in British India during the early British Raj period in 1862. The Indian Penal Code of 1860, sub-divided into twenty three chapters, comprises five hundred and eleven sections. The Code starts with an introduction, provides explanations and exceptions used in it, and covers a wide range of offences.

Chapter XVI deals with the sections 299 to 377 i.e., Of Offences affecting the human body. One of the sub topics under it is Sexual Offences including rape (Sections 375 to 37)

RAPE 375. Rape4 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 descriptions:First- Against her will. Secondly- Without her consent. Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 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 her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly- With or without her consent, when she is under sixteen years of age. Explanation- Penetration 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.]

Indian Penal Code, 1860

STATE AMENDMENT Union Territory of Manipur: (a) in clause sixthly, for the word "sixteen" substitute the word "fourteen"; and (b) in the Exception, for- the word "fifteen" substitute the word "thirteen". [vide Act 30 of 1950.]

376. Punishment for rape5 (1) Whoever, except in the cases provided for by subsection (2),

commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, 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 judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,(a) being a police officer commits rape(i) within the limits of the police station to which he is appointed; or

Indian Penal Code, 1860

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) 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 servant subordinate to him; or (c) 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 woman'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 (d) 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 (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) 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 judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2- "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring, medical attention or rehabilitation.

GANG RAPE The expression "gang rape" is defined in explanation 1 appended to section 376(2)(g) IPC. It is mentioned there that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape.6 A perusal of explanation I to section 376 IPC, which defines 'gang rape', makes it apparent that it is not necessary that rape should be committed by more than one person. The explanation specifically states that even if one person commits rape in a group, the offence of gang rape is complete.7

6 7

Sanjay Kumar v. State Of Haryana (2012) 8 SCC Sanjay And Another v. State Of Haryana 2010 (3) SCC 621

Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly; but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.8

Mere presence at the spot is insufficient to prove charge of gang rape: Pradeep Kumar:
9

It was submitted before us by Mr. K.T.S. Tulsi, learned senior

counsel for the appellant that the High Court committed an error in convicting the accused-appellant under Section 376, IPC when the statement of the prosecutrix before the court completely exonerated him from the commission of offence of rape by deposing that only two accused persons, namely, Karam Chand and Ashok Kumar, defiled her against her wish and consent; and that she had further stated that the other accused could not have sexual intercourse with her because getting a chance she opened the bolt of the room and ran away from the house. It was
8 9

Ashok Kumar v. State of Haryana, AIR 2003 SC 777 Pradeep Kumar v. Union Administration Chandigarh, AIR 20006 SC 2992

submitted that on the face of the above statements of the prosecutrix, the accusedappellant Pardeep Kumar could not have been convicted. On the other hand, Ms. Kamini Jaiswal, learned counsel for the State submitted that the accused-appellant, although had not actually committed rape on the prosecutrix, was rightly convicted under Section 376, IPC, as it was amply proved by the prosecution that the appellant was a member of the group which acted in concert to commit rape on the prosecutrix and in furtherance of the common intention, rape was committed. Thus, the submission of the learned counsel for the State is that by virtue of Explanation 1 to Section 376(2)(g), IPC, all members of a group would be liable for the acts committed by other members of that group when the act is committed in furtherance of their common intention, namely, intention to commit rape. In Bhupinder Sharma v. State of Himachal Pradesh,10 it was held: In cases of gang rape the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation I in relation to Section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC.

A woman cannot be prosecuted for the gang rape: In Priya Patel v. State of M.P. and Anr., JT 11, this Court has observed as follows:

10

(2003) 8 SCC 551

The present case holds its importance for being the only celebrated case in which the question whether a lady may be prosecuted for gang rape has been taken up. It is an appeal filed against the decision of the High court of Madhya Pradesh. The rationale given by the High court was that though a woman could not commit rape, but if a woman facilitated the act of rape, she could be prosecuted for gang rape. The facts of the present matter were that the prosecutrix was returning by Utkal Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. On the basis of the complaint lodged, investigation was undertaken and chargesheet was filed. While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC, the appellant was charged for commission of offences punishable under Sections 323 and 376(2)(g) of IPC. The revision filed before the High Court questioned legality of the charge framed so far as the appellant is concerned, relatable to Section 376(2) (g) IPC. It was contended that a woman may not be charged for commission of offence of rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape.

11

2006(6) SC 303

The Supreme Court, apparently, had a different view. The present appeal was allowed. The apex court held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape. The rule is based on the principle of common intention as provided in section 34 of the IPC. Common Intention denotes acts done in postulation as per a pre arranged plan or in pursuance of prior meeting of minds. When this section is applied to section 376 (2) (g), it may require fulfilment of the common intention which in such a case may be common intention to rape. Since such intention may not exist with a woman, as given in the definition, a woman may not be held liable for gang rape as well. A contention was raised by the counsel of the state that the woman may be held liable for Abetment as under section 108 of the IPC. The court on this said that such contention should have been raised in the trial court or in High Court, but it may not be done here. A person when instigates a crime or assists in its pursuance may be held liable for Abetment of crime. Even in the present matter if it may have been taken up, then appellant may have been convicted on the charge of abetment of rape but then a new issue may have come up. This may have lead to a discrimination on basis of sex with a man is deemed to have common intention and therefore must be held liable for rape but on the other hand a woman, doing the same act as the man was, might be liable for abetting the crime. This being on the grounds of the fact that it is conceptually inconceivable, as in accordance with the meaning of the word rape, as given in Section 375 of the IPC.

By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. 'Common intention' is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 'Common intention' denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression 'in furtherance of their common intention' as appearing in the Explanation to Section 376(2) relates to intention to commit rape.

RECENT CASE LAW STUDY Shimbhu and Anr. Vs. State of Haryana12 P.Sathasivam,CJI. Brief facts: 1. The case relates to the gang rape of the victim in village Nangal Durgu, Haryana. Purushottam-her grandfather, had a shop in the said village. Balu Ram (the appellant herein) also had a shop adjacent to the shop of Purushottam. On 28.12.1995, at about 5.00 a.m., when the prosecutrix (PW3) came out of her house to attend the call of nature, Shimbhu (A-1) and Balu Ram (A-2)-the appellants herein, met her and asked her to accompany them to their shop. When she tried to resist their attempt, they threatened her by pointing out a knife with dire consequences. They took her inside the shop of Balu Ram (A-2) and raped her, turn by turn. They kept her confined in the same shop for two days, i.e., 28.12.1995 and 29.12.1995 and committed rape upon her repeatedly. It was only on 29.12.1995, she was allowed to leave the said place when the appellants-accused learnt that her family members were on her look out. When she reached her house, she narrated the entire incident to her family members. 2. On 30.12.1995, the prosecutrix, accompanied by her father - Luxmi Narain Sharma (PW-4), went to the Police Station Nangal Chaudhary and lodged a First Information Report (FIR) being No. 195 dated 30.12.1995under Sections 376(2)(g), 366, 342, 363, 506 read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC').

12

[Criminal Appeal Nos.1278-1279 of 2013 arising out of S.L.P. (CRL.) Nos. 1011-1012 of 2012]

3. After investigation, the case was committed to the Court of the Additional Sessions Judge, Narnaul which was numbered as Sessions Case No.RT-9 of 28.08.1997/11.03.1996 and Sessions Trial No. 4 of28.08.1997/25.03.1996. The Additional Sessions Judge, vide order dated30/31.03.1998, convicted and sentenced the appellants to undergo rigorous imprisonment (RI) for ten years along with a fine of Rs. 5,000/- each, in default, to further undergo RI for six months for the offence punishable under Section 376(2)(g) read with Section 34 of IPC. The appellants were also sentenced to undergo RI for three years along with a fine of Rs.1,000/- each, in default, to further undergo RI for two months for the offence punishable under Section 366 read with Section 34 of IPC. They were further sentenced to undergo RI for three months along with a fine of Rs. 200/- each, in default, to further undergo RI for fifteen days for the offence punishable under Section 342 read with Section 34 of IPC. They were also sentenced to undergo RI for one year along with a fine of Rs.500/- each, in default, to further undergo RI for one month for the offence under Section 506 read with Section 34 of IPC. 4. Being aggrieved of the order of conviction and sentence, the appellants herein preferred Criminal Appeal Nos. 577 and 479 of 1998 before the High Court. The Division Bench of the High Court, by a common order dated 22.02.2011, dismissed the appeals and confirmed the order of conviction and sentence dated 30/31.03.1998 passed by the Additional Sessions Judge, Narnaul. 5. Being aggrieved of the above, the appellants herein have preferred these appeals by way of special leave before this Court.

Heard Mr. Rishi Malhotra, learned counsel for the appellants-accused herein and Mr. Brijender Chahar, learned senior counsel for the respondent-State. The only contention of Mr. Rishi Malhotra, learned counsel is with regard to the settlement arrived at between the appellants-accused and the victim dated 24.12.2011, in the form of an affidavit by the victim filed before this Court, based on which he prayed for the reduction of sentence to the period already undergone. On the other hand, Mr. Brijender Chahar, learned senior counsel for the respondent - State vehemently contended that in view of the statutory provision, as it stood, in the absence of adequate and special reasons and the offence being a gang rape having minimum sentence of ten years, the same cannot be reduced to the period already undergone merely because the victim has entered into a settlement with the accused. He also brought to our notice the Criminal Law (Amendment) Act,2013, which not only deleted the proviso which enables the court to reduce the minimum sentence by giving adequate and special reasons but also enhanced the minimum sentence to twenty years, which may extend to life which shall mean imprisonment for the remainder of that person's natural life and with fine. He also pointed out that for the said purpose the legislature has introduced new Section, namely, Section 376D IPC, which came into effect from 03.02.2013.

ISSUE: In the light of the limited relief prayed, there is no need to go into the aspects relating to conviction and sentence. In other words, the only question to be considered in these appeals is whether the appellants-accused have made out a case for imposition of a lesser sentence than tenyears?

FURTHER: During the pendency of the above appeals, the appellants-accused placed on record an affidavit dated 24.12.2011 signed by the victim. In the said affidavit, the deponent had stated that she was the prosecutrix in the instant case which arose out of FIR No. 195 dated 30.12.1995 under Sections 363, 366, 342, 376(2)(g), 506/34 IPC registered at P.S. Nangal Chaudhary which is 16 years old where she was a consenting party to the alleged act. She also stated that due to passage of time and the fact that the deponent has settled/compromised the said matter with the accused persons on account of they belonging to neighbouring village and also of the fact that the deponent is married since January, 1999 and has four children, she did not want the said case to be pursued any further. She further stated that she is living happily with her husband for the last twelve years. Finally, she stated that in view of the compromise entered into by her with the accused persons and in order to buy peace and to maintain dignity in her matrimonial life, she has no objection if the sentence of the appellants be reduced to the period already undergone.

JUDGEMENT: 1. We carefully perused the contents of the said affidavit. It contains two pages and the deponent has signed in Hindi, that too only on the last page. Nothing was brought to the notice before any forum. In these circumstances, let us consider the relevant provision, as it stood on the date of the incident, and various decisions of this Court. Sentencing Policy under Section 376(2)(g) of IPC:9) The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process.

The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed. 2. Before we evaluate the case at hand in the light of above established principle that all punishments must be directly proportionate to the crime committed, it is imperative to comprehend the legislative intent behind Section 376(2)(g) IPC. 3. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of gang rape, for a term, which shall not be less than 10 years, but it may extend to life and shall also be liable to fine. The proviso to Section 376(2) IPC, of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where gang rape is committed is not less than 10 years though in exceptional cases, the Court by giving "special and adequate reasons", can also award the sentence of less than 10 years. 4. It is a fundamental rule of construction that a proviso must be considered in relation to the main provision to which it stands as a proviso, particularly, in such penal provisions. Whether there exist any" special and adequate reason" would depend upon a variety of factors and the peculiar facts and

circumstances of each case. This Court, in various judgments, has reached the consensus that no hard and fast rule can be laid down in that behalf for universal application. 5. It is on this proviso to the Section; the accused is relying upon and praying for a reduction of sentence of imprisonment for a term of less than10 years. Based on the following three grounds, the accused seeks for reduction of sentence than prescribed by the statute: Firstly, on the ground that a compromise has been arrived at between the parties; Secondly, that the occurrence of the incident dates back to 1995; and Lastly, that the victim is happily married and blessed with children. 6. This Court, in a catena of cases, has categorically reiterated that none of the grounds raised will suffice to be 'special and adequate reasons' even if put together. 7. In Kamal Kishore vs. State of H.P.13, a three-Judge Bench of this Court arrived at the conclusion that the fact that the occurrence took place 10 years ago and the accused or the victim might have settled in life is no special reason for reducing the statutory prescribed minimum sentence, stating: 8. The expression "adequate and special reasons" indicates that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a conjunction of both for enabling the court to invoke the discretion. Reasons which are general or common in many cases cannot be regarded as special reasons. What the Division Bench of the High Court mentioned (i.e. occurrence took place 10 years ago and the accused might have settled in life) are not special to the accused in this case or to the situations in this case. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. No catalogue can be prescribed for adequacy
13

(2000) 4 SCC 502

of reasons nor instance can be cited regarding special reasons, as they may differ from case to case. 9. As the reasons advanced by the Division Bench of the High Court could not be supported as adequate and special reasons learned Counsel for the accused projected an alternative profile in order to support his contention that there are adequate and special reasons. He submitted the following: Shishna Devi (PW2) has since been married to another person and she is now mother of children and is well-settled in life. The accused was aged 23 when the offence was committed and now he is 34, but he remains unmarried. He says that on two occasions his marriage had reached the stage of engagement but both had to be dropped off before reaching the stage of marriage due to the social stigma and disrepute which surrounded him. These are the reasons which he advanced for extending the benefit of the proviso. 10.Those circumstances pleaded by him are not special reasons for tiding over the legislative mandate for imposing the minimum sentence. We, therefore, enhance the sentence for the offence under Section 376 I.P.C. to imprisonment for 7 years." Similar view was taken in the State of A.P. vs. Polamala Raju @Rajarao14. 11.In State of M.P. vs. Bala @ Balaram15, this Court held that the long pendency of the criminal trial or offer of the rapist to marry the victim are no relevant reasons for exercising the discretionary power under the proviso of Section 376(2) IPC. This Court further held asunder: " 12.The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal.
14 15

(2000) 7 SCC 75 (2005) 8 SCC 1

The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 I.P.C. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Section 376(1) and 376(2) I.P.C. give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason. 13.The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the concerned offence, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it." 14.In State of Karnataka vs. Krishnappa16, a three-Judge Bench of this Court held that the socio-economic status, religion, race, caste or creed of the accused are irrelevant considerations in the sentencing policy. It was further held: " 15.The High Court however, differed with the reasoning of the Trial Court in the matter of sentence and as already noticed, the reasons given by the High
16

(2000) 4 SCC 75

Court are wholly unsatisfactory and even irrelevant. We are at a loss to understand how the High Court considered that the "discretion had not been properly exercised by the Trial Court". There is no warrant for such an observation. The High Court justified the reduction of sentence on the ground that the accused respondent was "unsophisticated and illiterate citizen belonging to a weaker section of the society" that he was "a chronic addict to drinking" and had committed rape on the girl while in state of "intoxication" and that his family comprising of "an old mother, wife and children" were dependent upon him. 16.These factors, in our opinion did not justify recourse to the proviso to Section 376(2) IPC to impose a sentence less than the prescribed minimum. These reasons are neither special nor adequate. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Socio-economic status religion race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. 17.The sentencing Courts are expected to consider all relevant facts and circumstance bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crimes of rape on innocent helpless girls of tender years as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are

no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum to the respondent. 18.To show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced. The High Court in the facts and circumstances of the case, was not justified in interfering with the discretion exercised by the Trial Court and our answer to the question posed in the earlier part of the judgment is an emphatic - No." 19.Similar view point was largely adopted in various cases, like in Bhupinder Sharma vs. State of Himachal Pradesh17; State of M.P. vs. Balu18; State of Madhya Pradesh vs. Bablu Natt19; and State of Rajasthan vs. Vinod Kumar20. 20.At this juncture, it is pertinent to refer two decisions on the very same Section, i.e., Section 376 IPC wherein while considering peculiar circumstances, this Court reduced the prescribed minimum sentence and confirmed the orders passed by the High Court. In Baldev Singh and Others vs. State of Punjab21, though courts below awarded a sentence of ten years, taking note of the facts that the occurrence was 14years old, the appellants therein had undergone about 3 1/2 years of imprisonment, the prosecutrix and the appellants married (not to each other) and entered into a compromise, this Court, while considering peculiar circumstances, reduced the sentence to the period already undergone, but enhanced the fine from Rs. 1,000/- to Rs. 50,000/-.
17 18

(2003) 8 SCC 551 (2005) 1 SCC 108 19 (2009) 2 SCC 272 20 (2012) 6 SCC 770 21 ( 2011) 13 SCC 705

21.In the light of series of decisions, taking contrary view, we hold that the said decision in Baldev Singh (supra) cannot be cited as a precedent and it should be confined to that case. 22.Similarly, in Mohd. Imran Khan vs. State Government (NCT of Delhi)22, this Court, after pointing out that as the High Court itself has awarded the sentence lesser than the minimum prescribed for the offence recording special reasons, viz., that the prosecutrix therein had willingly accompanied the appellants to Meerut and stayed with them in the hotel; she was more than 15 years of age when she eloped with the appellants and the appellants were young boys held that there is no case for further reduction of sentence and dismissed the appeals filed by the appellants-accused.

FINAL DECISION: 1. Inasmuch as the prosecutrix herself had consented and stayed along with the appellants-accused in the hotel, the High Court reduced the sentence to five years which was less than the minimum prescribed for the offence which in turn affirmed by this Court. This decision is also confined to the peculiar circumstances under the important aspect that the prosecutrix was a consenting party, hence, the same is also not applicable to the case on hand or any other case. 2. Thus, the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the
22

(2011) 10 SCC 192

victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. 3. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma under gone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC. 4. It is imperative to mention that the legislature through the Criminal Law (Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed.

5. This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases. 6. In the light of the above discussion, we reject the request of learned counsel for the appellants for reduction of sentence, consequently, the appeals fail and the same are dismissed.

DELHI GANG RAPE Case23

The most hyped and the most sort after case India has had! Dec 16, 2012: Nirbhaya, a 23-year-old paramedic student, gang-raped and assaulted by six men in a private bus and thrown out of the moving vehicle along with her male friend. "Death to all," additional sessions judge Yogesh Khanna said while delivering the verdict in the Delhi gang-rape case that had evoked nationwide outrage and led the government to bring in a stringent anti-rape law.

23

TOI, Sep 13, 2013, 03.22PM IST

"Court cannot turn a blind eye to such a gruesome act," the judge said, while handing down the maximum punishment to the four convicts in the Delhi gangrape case. He said, "When crime against women is rising on day-to-day basis, so, at this point in time court cannot keep its eye shut." "There should be exemplary punishment in view of the unparallelled brutality with which the victim was gang raped and murdered, as the case falls under the rarest of rare category. All be given death," the court said while reading out a portion of the order. "This is a time when serious crime against a woman has come to the fore and now its judiciary's responsibility to instil confidence among the women," it said.

Statistics: India reports about 22,000 rapes a year, about 1.9 rapes per 100,000 population. According to Indian government statistics, a woman is raped every 22 minutes on average.

Justice Verma Committee Background: On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The other members on the Committee were Justice Leila Seth, former

judge of the High Court and Gopal Subramanium, former Solicitor General of India.

The Committee submitted its report on January 23, 2013.

It made

recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms. Reforms in management of cases related to crime against women:

A Rape Crisis Cell should be set up. The Cell should be immediately notified when an FIR in relation to sexual assault is made. The Cell must provide legal assistance to the victim.

All police stations should have CCTVs at the entrance and in the questioning room.

A complainant should be able to file FIRs online. Police officers should be duty bound to assist victims of sexual offences irrespective of the crimes jurisdiction.

Members of the public who help the victims should not be treated as wrong doers.

The police should be trained to deal with sexual offences appropriately. Number of police personnel should be increased. Community policing should be developed by providing training to volunteers.

CRIMINAL LAW AMENDMENT ACT, 2013 Rape. '375. A man is said to commit "rape" if he- a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a

woman or makes her to do so with him or any other person; or b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or c. manipulates any part of the body of a woman so as to cause penetration into

the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First.Against her will. Secondly.Without her consent. Third/y.With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourth/y.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. Fifth/y.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or

through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.With or without her consent, when she is under eighteen years of age. Seventhly.When she is unable to communicate consent. Explanation I.For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception I.A medical procedure or intervention shall not onstitute rape. Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'.

Punishment for Gang rape. 376D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.

What India has learned from the Delhi gang rape? 24

1. Awareness inside and outside India. After this rape and the many other stories that followed, the world, and the media, were horrified that these tragic events seemed commonplace in the country that was once dubbed as one of the worlds greatest emerging markets and democracy. When India was discussed, people conveyed severe caution, and friends, family members, and strangers proclaimed fears of visiting the country. The thing is, violence toward women isnt a new trend in India. For years, women have faced harassment, heckling, and assaults. Factors like a lopsided men-women ratio (more men than women, especially in cities, due to factors like infanticide) and women becoming more career-oriented have propelled this problem, but its nothing new. What has changed is an open discussion of the treatment of women, and a public shame over rape. It took media attention, and mass protests for the country to realize how bad of a problem it was, and that it could no longer be tolerated.

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WASHINGTON POST BY Swati Sharma September 13 at 4:43 pm

2. The power of the people. The reaction to the Delhi gang rape was Indias Arab Spring. People banded together students, housewives, men, women, all stood together and loudly voiced their disdain. Mass demonstrations to this extent, with the world watching, arent new to India. (Hi, Gandhi!) But a protest with virtually every person from every segment of society joining? That was new. And it seems the momentum has continued from continued protests against gender inequality to the anti-corruption movement, the people of India have found their voice. 3. Change can happen. As a direct result to the mass protests, the government changed its age-old definition of rape and passed strict anti-rape laws. These reforms probably came as a surprise for many Indians, where the government is viewed as corrupt, and real change doesnt seem feasible. 4. The government isnt always to blame. Its usually a default reaction to blame the government for any mishaps in India (and usually, theyre right). But the heckling of women riding the bus or walking the street isnt completely the governments fault. Of course, the government is far from clean on this matter. Officials should and are being held accountable. But so should the society as a whole. A popular poster during the demonstrations read Dont tell your daughter not to go out, tell your son to behave properly. The conversation is changing, and silent factions of society have found their voice. 5. More equality at home. that has come since December 16 starts at homes across India. It comes from fathers and mothers who are learning to treat their children equally, who are realizing the adverse effects of educating a son over a daughter. It comes from teaching sons that women deserve respect. Never before

has there been a universal outcry to stop catcalls of women walking down the street, and to stop the slaughter of baby girls. But the incident made CEOs and rickshaw drivers join together, and a national conversation sparked. It also made the government slowly realize that complacency may be the way of the past.

CONCLUSION AND SUGGESTION I would like to conclude by saying that gang rape in all is a horrifying and inhumane crime done to a woman and even rape for that matter. Men committing gang rapes should surely be without any relief given to them must be given life imprisonment or even death penalty depending on the brutality done to the victim. The physical torture is not the only basis that the women has to suffer through, the emotional and the psychological effect is even more harmful for a woman to get it vanish or submerged and re start a new life. Our Indian society is such, that whenever a rape happens the women in some or the other sense has to be blamed and due to these restrictions and the stigma that the girl has to live with all her life especially in the rural areas, the cases dont come up and those who turn are tried to put an end to through settlements as the girls reputation is at stake. If gang rapes are still to continue, then the government laws should tighten up and more of police force must be alerted and more street lights should be there and the

police should have a quick response system made available for the late working hours women. Courts can obviously not turn a blind eye against the crimes against women but by atleast giving stringent punishments can control the crime and set an example for all the men out there. The rural areas must also have good and clear panchayat system where as soon as the rape or gangrape is committed, the FIR is lodged and the panchayat must support that family rather than ridiculing the girl. Once the harm is done, it cannot be restored, true, but the life after rape does not end and the laws of the country must support a woman in leading her life with due respect and courage afterwards.

BIBLIOGRAPHY BOOKS K.D. GAUR, Commentary on The Indian Penal Code, Second Edition 2013 TAXMANN PUBLICATIONS, Criminal Major Acts (with

Anti Rape Law), 2013 RATANLAL AND DHIRAJLAL, Indian Penal Code, thirty-second edition, 2013

WEBSITES
www.scconline.com www.indiankanoon.com http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committeereport-summary-2628/ http://www.advocatekhoj.com/library/bareacts/criminallawamendment/9.php?Title=Crim inal%20Law%20(Amendment)%20Act,%202013&STitle=For%20sections%20375,376,3 76A,%20376B,%20376Cand%20376D%20of%20the%20Penal%20Code,%20the%20foll owing%20sections%20shall%20be%20substituted,%20namely

ARTICLES
http://timesofindia.indiatimes.com/india/Delhi-gang-rape-Casediary/articleshow/22455125.cms http://www.theaustralian.com.au/news/world/judge-delays-sentence-decision-for-delhigang-rape-four/story-e6frg6so-1226717175402 http://www.washingtonpost.com/blogs/post-partisan/wp/2013/09/13/what-india-haslearned-from-the-delhi-gang-rape/

http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-reportsummary-2628/ http://www.advocatekhoj.com/library/bareacts/criminallawamendment/9.php?Title=Criminal%20Law% 20(Amendment)%20Act,%202013&STitle=For%20sections%20375,376,376A,%20376B,%20376Cand%20 376D%20of%20the%20Penal%20Code,%20the%20following%20sections%20shall%20be%20substituted, %20namely http://timesofindia.indiatimes.com/india/Delhi-gang-rape-Case-diary/articleshow/22455125.cms http://www.theaustralian.com.au/news/world/judge-delays-sentence-decision-for-delhi-gang-rapefour/story-e6frg6so-1226717175402 http://www.washingtonpost.com/blogs/post-partisan/wp/2013/09/13/what-india-has-learned-fromthe-delhi-gang-rape/