Saturday, January 2, 2010

Is Supreme Court unnecessarily setting legal precedent in rape cases

Is our Supreme Court spending court time on laying down legal gyan and more seriously, legal precedents, where none of the two were required in the first place. On first reading of the news item below about a recent SC judgment, that seems to be the case.

Mumbai: In an observation that could have far-reaching implications in the prosecution of rape cases, the Supreme Court recently observed that an Indian woman would never make a false allegation of rape, given the social stigma attached to it. This is likely to bolster the cases of rape victims and may have a bearing on recent cases involving actor Shiney Ahuja and Shree Ram Mills scion Abhishek Kasliwal.

“In Indian society, any girl or woman would not make such allegations (of rape) against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false (sic), she would be looked at by society with contempt throughout her life,” the apex court observed.

Upholding the seven-year imprisonment handed out to an auto-rickshaw driver who raped a 12-year-old in 1988, a bench of justices JM Panchal and Deepak Verma stated: “For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity (sic). She would also be conscious of the danger of being ostracised by society.”

Comments: 7 years is the maximum sentence for rape, and well deserved by the accused for raping a minor. However, if you read the IPC 375 which defines rape, there is no need to go into details of case like whether the minor gave consent or not. The fact that a girl is below 16 years of age makes it as rape in any case.

Section 375. Rape
1[Sexual offences]

1. Subs. by Act 43 of 1983, sec. 3, for the heading "Of rape".

1[375. Rape.
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: -
Sixthly: - With or without her consent, when she is under sixteen years of age.

Mincing no words to describe the social stigma faced by rape victims in India, the judges said, “It would be difficult for her to survive in Indian society which is not as forward-looking as the western countries are.”

If the observations of the apex court are applied by the prosecution in the cases of Ahuja and Kasliwal, they may have to brace themselves for a tough trial ahead.

While Ahuja’s trial against rape allegations made by his 20-year-old maid in June this year is yet to begin before the Sewri fast track court, charges have been framed against Kasliwal for raping a 52-year-old woman in March, 2006.

“The judgment can be relied on by the prosecution or the defence in any of these trials but how the sessions court will interpret it cannot be predicted as the facts of each case will vary,” criminal advocate Rohini Salian said. Since this precedent has been laid down by the Supreme Court, it is likely to be cited in rape trials before subordinate courts, she added.

“The court conducting the rape trial can certainly take these observations into account while appreciating the rest of the evidence before it,” said senior advocate Amit Desai. He, however, added that the Supreme Court’s observations alone cannot lead to conviction. “Their weightage may differ according to the totality of the facts and the defence taken by the accused,” Desai said.

Twenty-one years after the incident, the appeal of Wahid Khan, who was caught ‘red-handed’ by the police in Bhopal, was dismissed by the apex court. Under the guise of rescuing the girl from eve-teasers, Khan gave her a ride in his auto-rickshaw and took her to a deserted location where he raped her.

The apex court also took note of the fact that the girl’s statement had been consistent in her FIR as well as before the court. Moreover, the sub-inspector of police, BB Subba Rao, had told the court that when the accused was caught he and the girl were both naked waist-down.

The court held that the consistent statement of the victim and the testimony of the police officer who caught him red-handed had established the guilt of the accused.

Comments: So what was the need for Supreme court in giving so much gyan, or worse, giving scope for precedent setting in rape trials given that SC judgment has "binding precedent" effect on lower courts? It is already clear from the evidence etc that rape was committed. Now you are trying to tell the world why or under what circumstances a rape victim will or will not tell lies? Is this not an injustice to the victim in this case itself, when the law of the land clearly says it falls under rape, then where is the need to bolster the case on behalf of victim ? Or is it about some kind of fantasy where law can be created by the stroke of a judgment given by Supreme Court?

1 comment:

  1. Hi ,it is so weird that a entire family who knew all about a women and her daughter but gave the wrong impression to her in that way that any person can judge and accept as true the intention was so dangerous that till now that women who had not a soul next to her excluding her daughter is in mental trauma and terror of the threats and she was the only earning person and was looking after her daughter and the family was only with her for there own desires and took good advantage by giving her false promises of marriage and familiarizing each person as his other half and daughter as his own and concerning to marriage until the end the excuses were his career as he wasn’t satisfied with the job and was changing it frequently as he gets satisfying and stable job with good wages he without delay would marry her so that he can take care of both mother and daughter and he never wanted his future wife to work as she was a working women and entire family took her in confidence this carried on till 3years .The guy used her mentally, physically and the main purpose was financially. Now when the purpose got solved the entire family dragged her out from there house and was embarrassed to recognize her women was out of breath watching this behaviour and she got case registered as rape. The guy was behind the bar from last 3months but she says when she has all the evidence to prove he promised her for marriage and she had been getting threats from the family so why the judge MANMOHAN Singh of Delhi high court was taking favour of the accused and why is accused called as innocent in the courtyard when giving the proof of there threats why did he release the guy and for what ?that is a big torture for her when she is asking for protection till her statement gets recorded in the courtyard why Judge MANMOHAN SINGH of DELHI HIGH COURT was pointing him as innocent . Why the Judge could not wait? Why he ignored the things? Why was he feeling sorry for the guy? Why was he not paying attention towards the women victim what she wanted to say? And why was he not taking her words seriously? And the judge mind was already set before the hearing to grant him a bail. This can put her and her daughter in danger. She is been listening to the abusive words and getting insulted every second in the court room from the accused defender, and from the judge .Honourable judge MANMOHAN SINGH DELHI HIGH COURT was showing sympathy towards the accused, you all have no idea what that women must be going through this is not justified every 2nd day the date was getting extended that was itself a torture and then she is disrespected so much, and in mental trauma, ,Is this case to give women victim more pain and make her suffer more. If JUDGES will show sympathy in favour of accused what will victim go through? Putting mother and daughter life on risk the accused is granted bail just because he is been punished enough as he was in the jail from last 3months was JUDGE MANMOHAN SINGH comparing 3months with her 3years . For entire family 3years were a purpose to misuse her and now ashamed to accept her. But Why?? Is she not from our society and no one is there to stand by her, but think about the women and her daughter. Should we salute the JUDGES LIKE MANMOHAN SINGH and police had a big hand too. Women victim is totally shattered she is not able to take that Injustice the hope she had is destroyed but she finds no one to help her she had faced a lot of torture from the day one of her complaint from POLICE,NGO, COURT she says she doesn’t deserve to live now she has no courage to stand against powerful people she wants to raise voice but have no idea what and where to go. Make yourself an honest man, and then you may be sure there is one less rascal in the world but when one honest person gets against 100 of corrupt people then honesty gets no place.