Wednesday, December 26, 2012

Gang Rape, Punishment & Rules of Evidence in the Context of The Criminal Law (Amendment) Act, 2013






When a woman is raped by one or more of a group of persons, acting in furtherance of their common intention, each of such person is deemed to have committed gang rape (Section 376 D, IPC).

Punishment for rape: Section 376 of Indian Penal Code (in short IPC) talks about the punishment for rape. The minimum punishment for rape is rigorous imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine(Section 376 (1), IPC) and that for custodial rape, rape on a pregnant woman, rape on a woman under 16 years of age is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine(Section 376(2), IPC ).

Further Section 376A, IPC says that whoever, commits an offence punishable under sub-section (1) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.

Punishment for gang rape under Section 376D, IPC is rigorous imprisonment for a term which shall not be less than 20 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.

Punishment for repeat offenders is given under Section 376E, IPC which reads as whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or Section 376D and is subsequently convicted of an offence punishable under any of the said Sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.    

Rules of evidence:- Under the Indian Evidence Act,1872, ‘Evidence’ means and include all statements which the Court permit or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59, all facts, except the contents of documents, may be proved by oral evidence. Section 134 says- no particular number of witnesses shall in any case be required for the proof of any fact. Section 118 then tells us who may give oral evidence. According to that Section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in case of an accomplice Section 133 provides that he shall be competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However illustration (b) to Section 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Section 133 and 114, illustration (b).

A woman who has been raped is not an accomplice and therefore she cannot be put on par with an accomplice. Thus, for a conviction for rape, corroboration of the testimony of the raped woman is not necessary. In Bharwada Bhogibhai Hirjibhai vs. State of Gujarat, 1983 Cr LJ 1096, the Gujarat High Court observed- corroboration is not the sine qua non for a conviction in a rape case.  As a rule of prudence, the Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape has not been falsely implicated. 

Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence; unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. 

The circumstances in which the corroboration of the testimony of the victim of a rape would be necessary have been explained in State of Maharashtra vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658. The Supreme Court observed: to insist on corroboration except in rarest of rare cases is to equate a woman who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated.

In State of Punjab vs. Gurmit Singh and others, 1996 Cr LJ 1728, the Apex Court observed: the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases, amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, is viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration, notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape.

The importance of medical evidence has been explained by the Supreme Court in Prithi Chand vs. State of H.P, AIR 1989 SC 702. If the evidence of victim does not suffer any basic infirmity, and, the probability-factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected, to be forthcoming. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the probability-factor is found to be out of tune. 




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