Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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The cultural tapestry of Indian society owes its superlative cultural heritage to the fabric woven for over five thousand years of its cultural history. Love, peace, faith and respect are the chief ingredients which has distinguished our cultural heritage from the rest, in all stages of evolution of our civilisation from Pre-Vedic era to present modern era respect for women has remained an integral  and essential force. A civilisation is measured to be civilised, on the barometer of how far it has moved from the era of barbaric and how deep it has inculcated its ideals of human rights within itself. Although we have come a long way, in the march of time  eradicating various social evils by  establishment and implementation of laws, the glimpses of barbaricism  prevailing in us is displayed by the ever increasing crimes against women primarily lust of eyes and lust of flesh.

Sexual assault is an offence which tends to destroy not only the integrity of a women but also shatters the essence of civilisation into tatters and torns.  This offence indicates an attempt towards rupturing the modesty and respect for women. In a country like India where the scriptures as well as religious texts have always been preaching the importance for respect to women, their undisputable prestigious position in the society, the alarming increase in the cases of sexual assaults forced the country a thorough introspection in the existing laws. Not only does the law require a change, there has to be a significant change in the mindset of Indian society in their outlook towards women.

This report seeks to propose Amendments in the existing laws dealing with sexual assaults to establish a procedure for providing effective justice to the victim of such a heinous offence as well as acting as a deterrent so that the commission of such offences at such an alarming rate may be considerably reduced.

The report is divided into two parts i.e.

(1) The reasons for amendments and the legal sources to support the stance.,

(2) the existing laws and the inadequacies therein  and suggestions for amendments.

 

The Reason for the amendments with a legal outlook.

In the year 2103, the statistics had shown that there were three sexual assaults i.e. rapes being committed every day. The recent barbaric incident of the Delhi Gangrape[1]  case proved the inadequacies of the existing law to act as a deterrent.

Justice Arijit Parsayat had observed, “While a murderer destroys the physical frames of the victim, a rapist degrades and defiles the soul of a helpless female.” Also Justice Krishna Iyer had observed in a famous case of Rafiq v. State, “A murderer kills the Body but a rapist kills the soul.” The plethora of cases disposed off as well as pending in the Indian Judiciary would be sufficient to prove that that majority of reported cases where the offence of sexual assault is alleged to have been committed take years to be decided. The cases which are decided therein do not provide sufficient justice to the victim as, either the accused is acquitted or sentenced to a minimum term of imprisonment, which is unmatched with the atrocity of the crime committed.

In Mohd. Habib Vs State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered relevant by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

The Mathura Rape case where the trial court judge had acquitted the accused on the basis of absence of sufficient evidence, medical or any other to prove the guilt of the accused was the biggest example of the inefficiency of the judiciary. Though the decision of the session judge and high court was reversed by the Apex Court, this case marked an outcry for adequate reforms in the efficiency of the lower judiciary in such sensitive matters.

The tremendous increase in reporting of cases of sexual assaults has led the redrafting of the existing laws to deal with the offence of sexual assault stringently.

 

Part II- The Existing Laws and inadequacies therein and  suggestions for the Amendment Indian penal Code.

The law dealing with sexual assaults has been dealt with section 375 of the Indian Penal Code which provides the definition of Sexual Assault. The 172nd report of the Law commission of India was based on a Public Interest Litigation by Sakshi in the case of Sakshi v. Union of India wherein suggestions were made regarding amendments to the Code to provide stricter punishments for the Offenders. The term “Rape” was substituted by “sexual assault” to widen the scope of the offence. The report led to the passing of the Criminal Law (Amendment)Act, 2010.

Section 376 of the Indian Penal code provides punishment for the offence of sexual assault. The Criminal Law (Amendment) Bill, 2012 has proposed to enhance the punishment for sexual assault under section 376(1) with either a description of term ranging from seven years which may extend to life imprisonment. The proposed section 376(2) punishes the offenders with imprisonment with either a description of term ranging from ten years which may extend to life imprisonment.

A large number of cases of sexual assaults include custodial rapes which requires thorough reforms for stringent reforms. The faith bestowed in these government servants as well as in the staff of a hospital have often been misutilised by the dominant male to satisfy their sexual urge by indulging in the offence of sexual assault. In addition to the term of imprisonment, there should be measures such as termination from employment as well as measures to ensure that the offender is not appointed by the government which will act as a sufficient deterrent. 

Secondly, in view of the increasing number of cases wherein it has been observed that the accused after committing the offence of sexual assault has led the victim to suffer with permanent or temporary physical disability. The offenders of such a crime should be punished with life imprisonment and provisions should be made where adequate compensation is paid to the victim. Sexual assault leading to death of the victim should be punished with life imprisonment or death penalty. A close study of the sexual assaults committed by minors in the age group of sixteen to eighteen years requires the applicability of the provisions of the Indian Penal code on such offenders as well as consequent amendments to section 16 of the Juvenile Justice Act, 2000.

 

The Code of Criminal Procedure,1973.

The sections concerning reporting, taking evidence and trial in cases of sexual assaults are included in section 53A,160,164, 273,302 of Code of Criminal Procedure.

The law commission in its 84th report [2]had expressed grave concern on easing the technical formalities and procedures while reporting the alleged offence of sexual assault. The prosecutrix  has to undergo severe humiliation in the procedure involving reporting of crime, adducing evidence and cross examination by the defence. Therefore changes are proposed in sections 160 and 273 of the code which provide for ways in which the evidence of the victim shall be videotaped, the confrontation of the victim with the accused should be dispensed with. The statement of the victim should be recorded as far as possible by a female officer and the presence of a friend or relative of the victim should be provided for. These provisions shall provide an effective support to the victim and would lead to speedy and efficient justice. Provisions should be made for providing that the trial should be completed within six months.

These amendments if adopted will act as a deterrent to reduce the growing atrocities on women in the form of sexual assaults and would restore faith in justice and legal system of the country.

 

AMENDMENTS TO THE INDIAN PENAL CODE AND CODE OF CRIMINAL PROCEDURE.

 

I  Short title and extent: -

 

1. This act will be called the Criminal Law Amendment Act 2012.

2. It extents to the whole of India except the State of Jammu and Kashmir.

 

 Recasting of sub section (3) to section 376 which shall read as follows:

376.(1) Whoever, except in the cases provided

for sub-section (2) commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than seven years and may extend to life imprisonment,  and shall also be liable to fine.

Punishment for Sexual assault

(2) Whoever,-

(a) being a police officer commits sexual assault -

 

(i) within the limits of the police station to which he is appointed; or

(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 women 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 sexual assault on a woman or minor 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 women’s or children’s institution takes advantage of his official position and commits sexual assault on any women or minor 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 sexual assault on a woman in that hospital; or

(e) being relative of, or person in a position of trust or authority towards, the women assaulted commits sexual assault with such woman; or

(f) commits sexual assault on a woman knowing her to be pregnant; or

(g) commits sexual assault on a woman when such woman is under eighteen years of age; or

(h) commits gang sexual assault,

(i) being in a position of economic or social or political dominance commits sexual assault on a woman under such dominance, or

(j) commits sexual assault on a woman suffering from mental and physical disability, or

(i) commits sexual assault on a person suffering from mental and physical disability, or

(j) while committing sexual assault causes grievous bodily harm, maims disfigures or endangers the life of a woman or minor

(k) commits persistent sexual assault 

Shall be punished with imprisonment of either description for a term which shall not be less than ten years and may to life imprisonment, and shall also be liable to fine.

 

(3) Whoever commits sexual assault on a woman or a minor, which leads to  permanent partial or total physical disability of the victim,  shall be punished with rigorous imprisonment for life.

Provided that if the sexual assault is committed by a minor between the age of sixteen to eighteen years , he shall be punished with imprisonment with a term of either description of seven years and which  may extend to ten years.

 

Note :  A minor in the Age group  of  sixteen to eighteen years is dealt with the Juvenile Justice Act, 2000. However the recent resolution to lower down the age of Juvenile from 18 years to 16 years may exclude this category from the purview of the aforementioned Act. Thereafter, the provisions of Indian Penal Code may be applicable to this category in cases of sexual assault specifically.

 

Explanation 1. – “Minor ” in this sub-section, Section 376 C, and 376 D (2), (3) means a person below the age of sixteen years.”

Explanation 2 -Where a person is subjected to sexual assault 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 sexual assault within the meaning of this sub-section.

Explanation 3. – “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widows’ home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

Explanation 4. – “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.”

 

 New Section 376 E- a new section 376E would bring within its purview unlawful sexual offences which outrage the modesty of women not leading to sexual assault.

 

376E  Unlawful sexual Activities- (1) Whoever, with a sexual purpose touches, directly or indirectly,  touches  with a part of the body or an object, any part of the body of a woman, without her consent shall be punished with imprisonment  for either a description which shall extend to five years and shall also be liable to fine.

Provided, if the man is related to the woman or is in a position of trust or authority, he shall be punished with imprisonment of either description which may extend to seven years and shall also be liable to fine.

 

Amendments to the Criminal Procedure Code, 1973

 

1.Insertion of sub-section (3) to  section 160

“ (3)  where under this chapter, the statement of a female is to be recorded either as First Information Report of an offence or in the course of an investigation into an offence and she is a person against whom an offence under sections 375,376,376A,376B ,376C or 509of the Indian Penal Code is alleged to have been committed or attempted, the statement shall be recorded by a female police officer and in case a female police officer is not available in or in the adjoining police station, by a female government servant available in the vicinity and in case a female government  is not available in the vicinity then a female authorised or a member of an organisation for the welfare of the female welfare.

        

Provided that while recoding the statement , a relative or a friend  of the person whose statement is being recorded or a female authorised  by a recognised organisation for the welfare of woman and children, shall be allowed to remain present.

 

Note: The suggestions as to the abovementioned provisions were also made in the 84threport of the Law commission [3]

 

2. Amendment to  section 273- A new proviso to be inserted in section 273

 

“Provided that where the evidence of a woman or a child below eighteen years, who is alleged to have been subjected to sexual assault or any other sexual offence is to be recorded, where the confrontation with the accused is dispensed with. The evidence of the victim may be videotaped.

 

3. Consequential amendments in the First Schedule of the Criminal Procedure Code, 1973 recommended. Consequent upon the proposed amendments in the IPC in respect of section 376 will have to be substituted. Entry in respect of a new section 376E IPC will have to be inserted.

 

[1] Incident of Gang rape on 16th December,2012 of a 23 old year girl who succumbed to her injuries

[2] 84th Report on rape and allied offences,1980

[3] Para 3.25 of the 84th Law commission report .


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