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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Identification of person arrested : Section 54-A Cr PC

Section 54-A of the Code of Criminal Procedure, 1973 empowers the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.

Section 54-A of the Code of Criminal Procedure ( in short Cr PC ) reads as follows: 

Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

Further, Section 53-A of the Code of  Criminal Procedure talks about examination of person accused of rape by medical practitioner which reads as follows:

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i)  the name and address of the accused and of the person by whom he was brought,
(ii)  the age of the accused,
(iii)  marks of injury, if any, on the person of the accused,
(iv)  the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

Explanation of the term 'examination' and 'registered medical practitioner' as it appeared in the Section 53 of the Code of Criminal Procedure are as follows: 

(a) 'examination' shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

(b) 'registered medical practitioner' means a medical practitioner who possess any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a Medical Register.

Relevancy of 'identification' is given under Section 9 of the Indian Evidence Act, 1872.

The object of conducting a 'test identification parade' is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

Test identification parade must be held at earliest possible opportunity with necessary safeguards and precaution. At the parade people with similar height and features should be mixed up with the accused in proportion of not less than 1 to 9. Magistrate should also take care that there is no occasion for any police officer to be present at the parade to prompt the witness.

The identification parades belong to the stage of investigation and are essentially governed by the Section 162 of the Code of Criminal Procedure. Where an accused himself refuses to participate in a test identification parade, in such case, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of crime should not be relied upon ( Munna vs. State AIR 2003 SC 3805 ).

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Attempts to commit Offences : Section 511, IPC.

The word 'attempt' is not defined in the Indian Penal Code. According to Oxford Dictionary 'attempt' means 'earnest and conscientious activity intended to do' or 'accomplish something'.

Every commission of a crime has three stages

1. Intention to commit it;
2. Preparation for its commission; and
3. A successful attempt.

If the attempt to commit a crime is successful, then the crime itself is committed; but where the attempt is not followed by the intended consequences, Section 511 of the Indian Penal Code ( in short IPC ) applies which is read as follows:

Section 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.- Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. 

Ingredient of Section 511  

The ingredient of Section 511 are

1. Offence punishable with imprisonment for life or imprisonment;
2. Does any act towards the commission of the offence;
3. No express provision is made by the Code for the punishment of such attempt.

Attempt is the direct movement towards the commission after the preparation are made. Mere intention to commit a crime, not followed by any act, does not constitute an offence. Only such attempts are punishable under Section 511 for which no express provision is made by the Code.

Section 511 of the Indian Penal Code is a general section that makes punishable all attempts to commit offences punishable with imprisonment for life or imprisonment excepting those punishable with death or with fine only. Section 511, IPC provides for punishment for an attempt to commit an offence under the Penal Code. The very policy underlying in Section 511, IPC seems to be for providing it as a residuary provision. It does not apply to offence under special or local laws.

In Satvir Singh vs. State of Punjab AIR 2001 SC 2828, it was observed that Section 511 of the Indian Penal Code makes attempt to commit an offence punishable. The offence attempted should be one punishable by the Code with imprisonment. The conditions stipulated in the provision for completion of the said offence are- (i) the offender should have done some act towards commission of the main offence; (ii) such attempt is not expressly covered as a penal provision elsewhere in the Code. Thus attempt on the part of the accused is sine qua non for the offence under Section 511, IPC. If the act of the accused asking his wife/victim to go and commit suicide had driven her to proceed to the railway track for ending her life then it is expressly made punishable under Section 498A of the IPC. Section 498A, IPC makes cruelty as a punishable offence. One of the categories included in the Explanation to the said Section (by which the word cruelty is defined) is thus: (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; when it is so expressly made punishable the act involved therein stands lifted out of the purview of Section 511, IPC.

In Abhayanand Mishra vs. State of Bihar AIR 1961 SC 1698, the appellant applied to the Patna University for permission to appear at the 1954 M.A. Examination in the English as a private candidate representing that he was a graduate having obtained his B.A. degree in 1951 and that he had been teaching in a certain school. He attached bogus certificates in this regard. The University gave the permission and issued admit-card. In the meantime, however, the University came to know about the forged application of the applicant.

The issue before the Court was whether appellant was guilty of an 'attempt to cheat' the University, under Section 415, IPC, in as much as he, by making false representation, deceived the University and induced the authorities to issue admit-card. The arguments on behalf of the appellant was that what he did was just a preparation and not an attempt to cheat; further, admit-card was not property and had no pecuniary value in itself.

The Apex Court observed that a personal commits the offence of 'attempt to commit a particular offence' when (i) he, intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.

The Court held that appellant did deceived the University, as a dishonest concealment of facts is a deception and thus cheating under Section 415, IPC. Admit-card is a 'property' as it has immense value to a candidate. It is not true that appellant did not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of cheating. He did succeed in deceiving the University and inducing it to issue the admit-card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher.

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Anticipatory Bail : Section 438, Cr.P.C., 1973.

The term anticipatory bail implies a direction to release a person on bail issued even before the person is arrested. The necessity of introduction of Section 438 of the Criminal Procedure Code was arises mainly because sometimes influential person try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

A direction under Section 438 of Criminal Procedure Code was intended to confer conditional immunity from actual touch or confinement of body implicit in the mode of arrest contemplated under Section 46(1) of the Cr.P.C. Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non-bailable offence".

The provisions of Section 438 in the Cr.P.C. are in the nature of an exception and while construing such a provision the Court ought not to stretch it beyond the plain meaning of the words employed in the said Section.

Section 438- Direction for grant of bail to person apprehending arrest-
(1) where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely 
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

In Gurbaksh Singh Sibbia and others vs. State of Punjab (AIR 1980 SC 1632), the Supreme Court has laid down some guidelines regarding discretion in granting anticipatory bail some of which are as follows-

(i) The use of the expression 'reason to believe' in section 438(1) indicates that Court grants relief only being satisfied on objective material's examination;

(ii) Filing of FIR is not a condition precedent. The provisions for the anticipatory bail in section 438 of the Code applies even when there is no 'first information report' and no case for commission of 'a non-bailable offence' has been registered against a person. If a person has 'reason to believe' that he may be arrested on an accusation having committed 'a non-bailable offence', although no first information report was filed against him he may appear before the Court and apply for an order for his release on bail in the event of his arrest.

(iii) Bail to be effective till the conclusion of trial. Where order granting anticipatory bail is confirmed by concerned Court (High Court or Court of Session), such benefit would generally be enjoyed by applicant until his trial is not concluded.

(iv) Legally it is possible to pass an ex parte order to anticipatory bail but ordinarily an order of anticipatory bail should not be passed without issuing notice to the prosecution and giving it an opportunity to oppose the application for anticipatory bail.

Further rejection of an application for grant of anticipatory bail by Court of Session, not dis-entitled person to move High Court.



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