Rape is the most inhuman form of sexual aggression, usually associates with brutal act of violence. Rape is an invasion of physical and bodily privacy of a woman that outrages the modesty and dignity of a woman. It is naked violation of a human right of a woman against her dignity and physical security. It is a serious blot on the very institution of womanhood itself. Rape is a manifestation of unnatural instinct of a man and his natural physical superiority over women. A murderer destroys only the physical body of a person but a rapist in addition to that defiles the soul of a female.
Justice Krishna Iyer has very rightly pointed out that ‘when a woman is ravished what is inflicted is not merely a physical injury but a deep sense of some deathless shame’. The rape is only crime, perhaps, where the victim, a helpless female instead of being sympathized is socially degraded with lifelong stigma attached to the character and dignity, for no fault of her. Mass Rapes of women has always been a part of human history. During the wars, often, the winning army ravaged women in masses as a symbol of victory and is accepted as the inescapable right of the conqueror.
If we turn back to all the pages of history, we find the record events of great battles between the kings, glorious wars waged by the Empires, victorious invasion of the conqueror’s march are all soaked with the tears of helpless women and bloodstains of victims of rape. Till the medieval period, rape was considered as a mere physical assault on woman and a rapist was not even publicly lookdown. With the advancement of civilization and rising consciousness among women and a constant struggle for equality, lead to accept publicly rape as a crime not only against the women but against women and society.
Even in twentieth century it become common during the armed conflicts in areas of insurgency and also a weapon in antagonist campaigns as a mean of ethnic cleansing. The recent Bosnia conflict (1992-95) witnessed a large scale of mass rapes carried out on Bosnian Muslim women by Serbian militiamen. Likewise, a quite happening during the communal riotous mobs and caste conflicts, where in women are targeted at the hands of rival groups as an act of retaliation or to intimidate or to humiliate one another.
In all the incidents the helpless women are victims like a grass between the bullfights. Such a plight of women due to the fact that men have glued for centuries as superior to women. Rape is, nowadays an every day happening, rape can occur and anywhere, even in a family it can take in the form of martial rape. Rape can takes place, even in crowded places such as market areas, public parks, hotels, resorts, where the woman has been publicly picked up and raped there itself. It happens also in a refugee camps or protection homes.
It can take place in centers of custody and care like police lockup or in prison, likewise a juvenile home or hospital. There is no exception even to the places of sanctity like school or temple. The victims ranges from little girls to grand mothers and age is not a criteria.. It is prevalent in every city, every town, and every village of India. It is happening in our neighbourhoods, the only difference is that we have turned a blind eye to the issue. Most of the cases of rape are not being reported in our country, may be for the absence of support from society as well as police.
In villages while they were about to move to the police station they were prevented from doing so by the community fellows of the accused not to lodge a report with the police and instead insist to settle the matter by convening a panchayat of the village people. However, the reported cases have been observed an increase trend of rape cases during the years 2003-2007 as fallows. According to National Crime Record Bureau Report, the total number of cases reported under Section 376 of I. P. C. , are 15,847 in 2003, 18,233 in 2004, 18,359 in 2005, 19,348 in 2006 and 20,737 cases in 2007.
These cases reveal that there is a substantial increase of 15% in 2004 over 2003 and increase of 7. 2% in 2005 over 2004, an increase of 5. 4% in 2006 over 2005 and an increase of 7. 2% in 2007 over 2006. There were 20,737 of reported cases of rape in 2007, where in 1972 cases (9. 5%) of total victims of rape were girls under the age of 15 years of age group, while 3152 cases (15. 2%) were teenaged girls of 15 to 18 of age group. Nearly two third 11,984 cases (57. 7%) were women in the age of 30 to 50 years age group, while 133 cases (0. 6%) were over 50 years of aged women.
Offenders were known to the victims is as many as 19,188 (92. 5%) cases and remain were unknown or unidentified persons by the victim. Parents or close family members involved in rape cases were 405 (2. 1%) out of 19,188 of these cases. The neighbors were involved in 6902 (36%) cases out of 19,188 and relatives were in 1448 (7. 5%) out of 19,188 cases. Thus the statistics reveals the fact that the offender is being known to the victim either a relative nor neighbour, so that the matter is hush up within the four walls for the sake of family honor otherwise.
In all most all cases in rural areas, when it comes to a trial before a court it is being settled amicably between the two parties because of prevailing social conditions which pressurize the victim to comprise in the interest of family honour and safety. By and large, due to the absence of corroboration of prosecution evidence leads to a large number of acquittals of the offenders, wherein the conviction rate of rape cases in below 20 percent among the lowest in the world.
In general, the grievances of victims of rape are true and genuine, seldom may be false complaints, because “no women of honour will accuse another of rape, since she sacrifices there by what is dearest to her”. The pitiable plight of the victim of rape starts from the time of approaching police station, usually such complaints are roughly handled by a police constable in the police station without due attention as is warranted and further investigations of the case are also not up to the expectations.
In some places, cases are not even registered if the accused is an influential person. The rising number of custodial rapes itself manifest the attitude of Indian police towards women. Usually, the victim has to answer the unsavory questions by police during the interrogation for the purpose of further investigation and subsequently; the victim has to undergo an unpleasant medical investigation by a medical officer for examination of her private parts in detail to collect the evidence; if she is not ready for that it becomes adverse evidence against her.
When the case reaches to the court the victims have to cross over endless hurdles in the court, while facing the trail, for which proper evidence and witnesses need to be produced, after that victim is being questioned by cross-examination for she may at least slightly harassed by the defence counsel in the normal course, even if the trail is being conducted in-camera. In continuous chain of these events, the physically bruised and mentally battered victim has to narrate her unfortunate story repeatedly, which may add agony and insult in addition to the injury of rape.
General Law of Rape: Definition and Punishment -_A bird’s-eye view Chapter XVI of Indian Penal Code (Act 45 of 1860) deals with the offences affecting human body, under this Chapter, there is a separate heading for ‘sexual offences’ in which Section 375 defines the offence of rape and Section 376 deals with punishment for the same. The law relating to rape has undergone substantial changes by enactment of The Criminal Law (Amendment) Act 1983, (Act 43 of 1983).
These amendments were of a result of wide criticism by all sections of society including women organizations and Parliamentarians against the judgment of Supreme Court in Tukaram v State of Maharashtra. To nullify the effect of Supreme Court judgment in the above case, extensive amendments were introduced in the I. P. C and Indian Evidence Act. The amendment introduced several new section i. e. clauses to 375,376A, 376B, 376C and 376D for punishing severely those who abuse their authority and commits the offence and Section 228A was inserted in the Penal Code to safeguard the identity of the victim of rape. In addition, the amendment also inserted a new provision sub-section (2) to section 327 of criminal procedure code to conduct a trail of rape in camera. Section 114-A of Indian Evidence Act 1872, added by the same amendment for drawing a conclusive presumption as to the absence of consent in a prosecution of rape under sub-section 376(2) of the I.
P. C. Again the Indian Evidence (Amendment) Act 2002, a Proviso to Section 146(3) was inserted and deleted Section 155(4) thus making it impermissible to question the moral character of the victim of rape. Section 375 of the I. P. C defines the offence of rape. This definition also enumerates six descriptions (clauses) when sexual intercourse with a woman will amount to tape. Accordingly, the offence ‘rape’ mean that ‘having a sexual inter course’ by a man with a women ‘against her will’ and ‘without her consent’. First and Second descriptions). According to the third description, a coerced consent obtained by means of putting a woman into fear of death or to another person whom she is interested also amount to rape. The fourth description includes that the consent given by a woman under the mistaken belief regarding the identity of the person, whom she believes as her husband also constitute the offence of rape because such a consent is obtained by fraud and is no consent because the man knows that he is not her husband.
The fifth description states that, at the time of giving consent by a woman, it is by reason of unsoundness of mind or intoxication, even if the intoxication is taken by her self or by another person also constitute the offence rape, because such consent is valid where the woman does not understand the nature and consequence of the act of sexual intercourse. The sixth description states that sexual intercourse with a girl below the age of sixteen years either with or without consent also a rape, because she is deemed to have no legal capacity to contact.
Further, the definition also provides two explanations; the first one states that the requirement of penetration (penile-vaginal) is necessary in order to constitute a rape. It fails to criminalize anal rape or forceful insertion of objects. As a result all such intrusive violations are fall under the category of ‘sexual assault’ of ‘outraging the modesty of women’, wherein a lesser punishment be imposed to the accused. The, another exception states that sexual intercourse by a man with his own life, the wife not being under fifteen years is not a rape.
This exception is based on the common law rule of marital exception; one leftover of the old notion that the wife is husbands property and is absence of any such recognition of right of a woman. This exception has been violently criticized by many feminists and human right activists, often called it ‘marital rape’ and nicknamed it as ‘statutory rape’. However, this concept has undergone a change and marital rape is now an offence in United Kingdom itself. The U. S. A, Denmark, Sweden, Norway, Poland and many countries abandon this right as recognition of right of woman against violence.
The Amendments of Child Marriage Act 1978, which prohibits child marriage, prescribed the age for marriage is 18 years and this definition of rape continues to view forcible intercourse with a wife who is 15 years of age as no offence at all. Thus the definition of rape is limited and it is still the same as it was in 1860. The narrow definition of rape has been criticized by the Indian women and children’s organization and insisted that oral sex, sodomy and penetration by foreign objects with in the meaning of rape.
A leading social organization ‘Sakshi’ approached the Supreme Court through Public Interest Litigation to include any type of ‘sexual assault’ on any part of the body to be construed as rape. In Sakshi v Union of India, the court did not interpret the provisions of Section 375 of the I. P. C to include all forms of penetration such as penile, vaginal penetration, penile-oral penetration, penile-anal penetration, finger-vagina penetration, object-vaginal penetration within its ambit.
Instead, the judges sought refuse behind strict interpretation of penal statutes and the doctrine of stare decisis meaning ‘stand by decisions and do not move, that which is quiet’ – a view that any alteration in this case, of the definition of the rape would result in chaos and confusion. The court observed: “In the present case, the respondent authorities have been trying to treat sexual violence other than penile vaginal penetration, as lesser offences falling under section 377or 354 of the Indian Penal Code and not as a sexual offence under 375/376 Indian Penal Code.
But it has been found that offences such as sexual abuse of minor children and woman by penetration other than penile vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is no manner less than the trauma of penile-vaginal penetration as traditionally understood under section 375/376, have been treated as offences tailing under section 354 of the IPC as outraging the modesty of a woman or under section 377 IPC as unnatural offences”.
The court suggested that the legislature should amend the laws, in order to reflect modern notions of crime and to safeguard society from wide range of sexual offences that go untouched by law presently. Thereafter the law commission in consultation with women’s organizations and the National Commission for women suggested a complete refurbishment of law relating to rape and sexual assault. This was brought forth in the 172 Report of the Law Commission on the Review of Rape Laws, suggesting requisite amendments to I. P.
C. , Cr. P. C as well as Indian Evidence Act. Section 376 of I. P. C provides punishment for the offence of rape and this section consists of two clauses. The first clause is in respect of rape generally and the second clause deals with instances of custodial rape and other aggrieved forms of rape. According to the first clause of this section a person who commits the offence of rape shall be punished with imprisonment for a term not less than seven years, which may extend to either 10 years or even life imprisonment.
If the woman raped is the own wife of a man who is not under the age of twelve year and below fifteen years, he shall be punished with imprisonment of either description for the term, which may extend to two years or with fine or with both. The proviso to Sec 376(2) provided that although a minimum punishment is prescribed for rape, the judiciary has discretion in the matter and can impose lesser punishment after recording the adequate and special reasons for awarding such punishment.
Clause 2 of Section 376(a) to (d) deals with the instances of custodial rape. Custodial rape means rape committed by a police officer within the limits of the police station, in a station house or perpetrated on a woman in his custody or in the custody of a police officer subordinate to him. It also includes rape committed by a public servant who takes advantage of his official position and commits rape on a woman subordinate to him in his custody. Rape committed by a person being on the management or staff of a ail, remand home, hospital who takes advantage of his official position comes within the purview of custodial rape. Clause 2(e)(f)(g) includes other forms of instances of rape are, if a man knows that a woman is pregnant and rapes her, if the rape is of a girl whose age is less than twelve years of age and also gang rape, where one or more persons join together in a group and commits rape of woman or women in furtherance of their common intention. In all these cases a minimum punishment of 10 years rigorous imprisonment is provided.
Similar to the earlier clause, the proviso to the section states that the court for adequate and special reasons to the mentioned in the judgment, may prescribe a lesser sentence. Section376 A to D deal with forms of sexual assault not amounting to rape against women. Section 376A deals with rape of a woman by her husband when she is judicially separated from him or separated under any custom or usage, the punishment provided is imprisonment of either description up to two years and fine.
Section 376B to D deal with inducing or seducing a woman to have a sexual intercourse by a public servant, superintendent or manager of jail, remand home or other places of custody or by management or staff of a hospital in whose custody or care the woman might be placed. In all these instances, the offender should have taken advantage of his official position to induce or seduce a woman to sexual intercourse. A punishment of imprisonment up to five years and fine has been provided for under all these sections.
The 172nd Law Commission of India has recommended changes in laws dealing with rape to include ‘Sexual assaults’ even without ‘Penetration’. The expression ‘rape’ should be replace by ‘sexual assault’ so that any kind of sexual violence even without actual ‘Penetration’ could be punished under punished under Indian Penal Code as it is seen in the majority cases, the accused escape as Penetration is difficult to prove. “Sexual intercourse’ as contained in Section 375 of the I. P. C should include all forms of Penetration.
The Commission said that the recommendations were in view of the Supreme Court judgment in Sakshi. Although the Victims are mainly girls and women, even boys and men are not spared and in view of the increasing incidence of crime the Commission also suggested that rape laws should be made ‘gender neutral’. This is principally to protect males, particularly young boys, who could be victims of homosexual crime. Further, sexual assault on boys in Police or Judicial custody will be taken up as rape cases so far ‘custodial rape of young boys’ has been neglected in law.
In regard to marital rape, it has been suggested that explanation (2) of Section 375, which states that sexual intercourse with his own wife, the wife not being under 15 years of age does not amount to rape, should be deleted. Forced sexual intercourse by a husband with should equally be treated as an offence just as any physical violence by husband against wife is treated as an offence. On the same reasoning 376A should also deleted and proposed insertion of Section 376E ‘unlawful sexual contact’ to the Indian Penal Code.
The above recommendations are seems to be found place in the proposed draft legislation relating to rape and sexual assault, which may shortly place before the Parliamentary tables for approval in the forth-coming sessions. This is a welcome step further to redefine law to protect basic human right of women. Rights of Victims of Crime and Criminal Justice Delivery System in India In our country the present criminal justice system, which fallows the Anglo-Saxon-adversarial system provides certain safeguards to the accused person. The victims of crime do not attract due attention, perhaps, over locked when compared to the accused.
Our criminal justice system proves a little beneficial to some extent to the victims of offences involving to property i. e. , putting the victims back into possession of his property, which was stolen or misappropriated, to the extent of recovery. When it comes to grievous offences like murder, what is left to the victim’s dependents is too deep tears and incases of heinous crimes against women like sexual assault or rape is left behind only a life long night marsh experience. The Constitution of India confers certain rights and privileges on accused nd guarantees certain safeguards such as Rights against ex-post Facto Law (Art 20(1)), Right against Double Jeo Pardy (Art 20(2)), Right against self-incrimination (Art 20(3)), Right to Protection of life and Personal Liberty (Art 21) which includes Right to speedy trail, Right to know the grounds of arrest, Right to consult advocate of his choice, Right to be produced before a Magistrate within 24 hours immediately after arrest, (Art 22) Right to legal aid (Art 29) and further, the Criminal Procedure Code 1973 and the Indian Evidence Act 1872 delves in to much more detail in elaborating the rights of accused, while Criminal Procedure Code sets out the manner of arrest, interrogation and investigation, production of accused before court, the inquiry, investigation, and the trial proceedings etc, but seems to be silent on the rights of victims, where as The Indian Evidence Act provides protection to the accused based on the principle of presumption of shoulders the burden of proof on the prosecution.
However, the victim was bridled with some in-built weakness and was not given a prominent place in criminal justice system. Generally, in the present system the victim can only set the law into motion by filing a complaint and then at the best co-operate with the investigating agency and is restricted to that of a prosecution witness in a trail. The victim has no right to actively participate in a trial and to protect his or her interests in the proceedings and the prosecution of the accused is supposed to be conduct on behalf of the victim by the State and its agencies. There is no scope under Cr. P. C 1973 for a victim or her lawyer to directly participate in a trial.
However, if any such case, the lawyer of the victim “shall act under the direction of the public prosecutor … and may with the permission of the court, submit written arguments after the evidence is closed in the case”, (Section 302 (2) Cr. P. C). Similarly, the views of the victim may be hardly heard while releasing the accused on bail and the notice of bail applications made by the accused given to the public prosecutor not the victim. Though the victim has substantial interest in the bail petition matter of the offender, he can intervene only (Sec 439(2) if it relates to cancellation of bail. Further, there is no provision of legal aid to the victims, he has to represent his case only through a public prosecutor, who may routinely attend the proceedings in a trail and do not ay much serious attention and interest as warranted when comparatively with a defence counsel for one or other reasons. In case of acquittal of the accused, the victim has a limited right of revision against such judgment only in exceptional circumstances. Further, the code allows the public prosecutor to withdraw a case from prosecution, however, with the permission of the court, at any time before the judgment is pronounced. Such instances humiliate the victim when the offender is scot-free and unpunished. With the lenient stand of the prosecution or the soft view of the court that leads to the sentencing of the offender relatively with a minor offence and lesser punishment, which frustrates maximum to the victim.
Further, the convicted offender is comfortably accommodated in a model prison with all provisions to food, cloth, medical care, recreation and also rehabilitation at the expenses of the State. But the victim and his helpless dependents were left to endure the suffering as their fate; neither the society nor the State may not turn to their rescue to over come the adversity which was a outcome of the crime and it is too pathetic in cases of victims of rape. The Victim has been marginalized in the present Criminal Justice delivery system and their feelings were ignored and injured by all the functionaries of the State. The indifference to the rights of the victim of crime is fast eroding the faith of society in general and particularly the victim. The Supreme Court In P.
Rama Chandra Rao v State of Karnataka the noted the concern for plight of victims of crime and express the view that if victims left without remedy, they might resort to taking revenge by unlawful means, which results further increase in crime and criminals. Compensation to the Victims of Crime and Criminal Law Legislation in India The major legislative frame work regarding compensation to victim of crime in India can be traced through the Code of Criminal Procedure 1973, by virtue of provisions of Section 357,421 and 431 contained there in, which empowers a criminal court, at its discretion to award compensation to a victim of crime as well as to recover it and pay it to him.
The restitution is a legal obligation as laid down under Sec 451,452 and 456 of putting the victims back into possession of his property that he was unlawfully deprived of it, after the conclusion of the trial. Similarly the provision of Section 250 provides compensation for accusation without reasonable cause, Sec 358 compensation payable to an illegally arrested person who causes a police officer to arrest him and Sec 359 order to pay cost in non-cognizable cases also relevant for consideration to pay compensation to victim but are negligible and merely proceedings. The Probation of Offenders Act 1958 under Sec 5 provides that while releasing the accused on probation, the Court may order the offender at its discretion to pay compensation for ‘loss or injury’ caused by him by commission of offence and also ‘cost’ of proceedings.
As far as Constitutional provision to pay compensation is concerned, it is to be noted that there is no express provision to pay compensation to victims but the out come of various decisions ruled by Supreme Court either by regarding part three of the Constitution which deals with Fundamental Rights (in some cases Directive principles as well) with Art 32,136 and 142 of the Constitution of India which is to be given either by The State or accused. Prior to the enactment of new amendments to the Cr. P. C (2008), the term victim has not been defined under any law and for the purpose of applicability the term ‘victim’ to mean ‘any person’ who entitled to receive compensation for their injuries under Section 357 of Cr. P. C 1973 and Sec 5 of the P.
O, Act 1958, The term ‘injuries’ denotes any harm whatever, illegally caused to any person in body, mind, reputation or property as given under Sec 44 of I. P. C. Section 357 of Cr. P. C empowers the Criminal court to order compensation as a part of ‘a sentence of fine or a sentence (including a sentence of death) of which fine forms a part’. An order of compensation is not mandatory under the code and it is entirely discretionary power of the court. This section applies only when the court impose a sentence of which fine forms a part’ interalia, to order payment of compensation, out of the ‘fine’ recovered, to a person for any ‘loss or injury’ caused to him by the offence. Under Section 357(1) of Cr. P.
C empowers the Criminal Court to award compensation to the victim in the fallowing four case, namely first, meeting proper expenses incurred in the prosecution; secondly, compensation to a person (or his heirs) for the loss or injury caused by the offence in the opinion of the Court, recoverable by such person in a Civil Court; thirdly, compensation to persons entitled to claim damage under Fatal Accident Act 1855; and fourthly, compensation to a bonafide purchaser of property which being the subject of theft, criminal misappropriation, cheating etc, is ordered to be restored to the possession of person entitled to it. Section 357(3) provides that in the event of ‘fine does not form part of the sentence’, the Court may use its discretion and order compensation to be paid ‘to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced’. By virtue of this provision, the court is empowered to order a specified amount of compensation irrespective of the fact that the offence is punishable with fine or not. The power to award compensation is not ancillary to other sentence, but it is in addition to that. There is no maximum limit to the amount of compensation.
It is left to the discretion of the court to decide in each case depending on its facts and circumstances. Further, it is not allowed to award imprisonment in case of the non-payment of compensation awarded under this section. In Hari Kishan and State of Haryana v Sukbir Singh, in this case, the accused assaulted the victim, who happened to be injured and the trial court sentenced the accused and other to undergo rigorous imprisonment for four years. On appeal to High court the convicts got the benefit of probation under Section 360 Cr. P. C and no fine was imposed on them. When case reached the Supreme Court, the Court directed to pay Rs. 50,000/- to the victim by way of compensation under Section 357(3) of Cr. P. C.
The Apex court taking note of the indifferent attitude of subordinate courts towards victims of crime in awarding compensation, pointed out that ‘section 357 is an important provision but Court have seldom invoked it. Perhaps due to the ignorance of the object of it’ and stated that this section empowers the courts to order compensation and this was in fact ‘a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes’. The Court, however, cautioned that such compensation must be reasonable by taking into consideration the nature of crime, the veracity of the claim and the ability of the accused to pay.
The Court directed to award adequate compensation to the victim, particularly when an accused is released on admonition, probation or when the parties enter into a compromise. and ‘recommended to all Court to exercise this power liberally so as to meet the ends of justice in a better way”. Apart from the provisions of Cr. P. C, the Probation of Offenders Act 1958 enables the Court, directing release of an offender under Section 3 and 4, at its discretion, to grant ‘reasonable compensation’ to any person for ‘loss or injury’ caused by him by commission of the offence and ‘costs’ of the proceedings as the court thinks reasonable. Section 5 provides for compensation to be ordered during the release of offender on probation of good conduct or after an admonition.
Compensation can be directed towards the loss and injury arising from the offence and for the cost of proceedings. But this power is circumscribed in the sense that in such cases there should be provision for grant of probation. Clause 2 of Section 5 makes it clear that ‘reasonable compensation’ for the loss or injury caused or ‘costs’ of the proceedings ordered under Sec 5(1) may be recovered as fine in accordance with the relevant provision of Cr. P. C i. e. Section 421 and 422. Section 421 of Cr. P. C. , provides for realization of fine and in turn, payment to the injured person of expenses or compensation out of the fine imposed under Section 357 of Cr. P. C. nd empowers the criminal court, passing a sentence of fine at its discretion, to recover the fine either by attaching and selling movable property of the offender or as arrears of land revenue from the movable and/or immovable property of the offender and thereby to make payment of the ordered ‘compensation’ to the victims of crime. Section 431 of Cr. P. C empowers a criminal court to recover ‘any money (other than fine)’ payable by virtue of any order made under the Cr. P. C as if it were a fine a ‘method’ for its ‘recovery’ is not expressly provided for in the Cr. P. C. Thus, section 421 and 431 of Cr. P. C are equally applicable to the recovery of ‘specified amount’ of compensation awarded under Section 357(3). Compensation to Victims of Rape: Some Reflections of Judicial Activism All human rights are derived from the inherent dignity of the person. When a woman is raped, it is actually her dignity, which is attacked and destroyed.
Rape not only results in bodily injury but also leaves be hind the ever-remaining scar on the soul and mind of victim, shame humiliation and social taboo. In Dinesh v State of Rajasthan, the Supreme Court unequivocally declared that rape is not only a crime against the person women, it is a crime against basic human right and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life under Art 21 of the Constitution. According to the court, it not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i. e. , her dignity, honour, reputation and not the least her, chastity.
In State of Madhya Pradesh v Babu Lal it was held that sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female and it is a serious blow to her supreme honour and offends her self-esteem and dignity. The Supreme Court granted compensation to the victims of through writ jurisdiction wherein the State and its functionaries failed to defend the violating of dignity of women and in cases where it’s servents involved themselves. In Gudalure M. J. Cherian v India, in the instant case, some miscreants entered the premises and committed rape on Sister Tara and Sister Roselit and also physically assaulted four other nuns and maid servants.
They also looted the cash which was kept for disbursing the salaries of staff. The case was reported to Gajraula Police Station on the next morning. The case was investigated in a per functionary manner and the charge sheet was filed by the local police against four accused persons. This case was brought to the notice of the Supreme Court by way of Public Interest litigation. The Supreme Court directed the C. B. I to hold the investigation. The C. B. I has pointed out that the evidence collected by local police does not justify filing of charge sheet against the four accused persons and there was hardly any chance to trace the real culprits. According to C. B.
I report there were serious lapses by police and a medical officer in dealing with the case, whose action or omission resulted in loss of crucial evidence in this case. The Supreme Court has directed the State of U. P. to pay compensation of Rs. 2,50,000 to each two nuns who were raped by miscreants and 1,00,000 each to four other nuns and one maid servant who were assaulted. Delhi Domestic Working Women’s Forum v Union of India, is an instance, where a non-governmental organization projected the problems of victims of sexual offences in accessing the criminal justice system and the court laid down parameters for conduct of investigation and trial in such cases.
In this case, the victims were four tribal women (domestic servants) belonging to the State of Bihar. While they were coming from Ranchi, their hometown to Delhi, while sleeping they were raped by seven army personnel’s on October 19th 1994 in running train. The Delhi Domestic working women’s Forum filed a writ petition in the Supreme Court under Art 32 of Constitution as public interest litigation. The Forum urged the Supreme Court to spell out the parameters on expeditious conduct and investigation of trail including compensation to victims of rape, with a view to assisting rape victims has laid down various broad guidelines. These guidelines include legal assistance, anonymity, compensation and rehabilitation to rape victims.
Taking note of seriousness of the matter, the Supreme Court suggested to the Government to setup a Criminal Injuries Compensation Board,(CICB) to Compensate victims of rape, whether or not a conviction has taken place. At the same time the court directed the trail courts to award compensation to the victims of sexual assault on conviction. In Delhi Domestic Working Women’s Forum case, a Division Bench comprising justices Kuldeep Singh and S. Sagir Ahmed observed: “If the court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation. The jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Court trying the offence of rape which is an offence against the basic human ights and also the fundamental right of personal life and liberty… unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been the victim of tyranny at the hands of men with whom they, fortunately under Constitution enjoy equal rights. ” Further, the court indicated the fallowing broad parameters for assisting rape victims.
The Supreme Court indicated the following broad parameters for assisting rape victims: 1. The complainants of case of sexual assault should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system so that she may be made aware of the proceedings of Section 366 that deal with their nature, that is, to prepare her case, to assist her in the police station and in the Courts and to provide her with guidance, e. g. ounseling or medical assistance; 2. Since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her; 3. The police should be bound by duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed; 4. A list of advocates well versed in dealing with such cases should be kept at the police station for victims who might not have a particular lawyer in mind or whose lawyer was not available; 5.
The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that the victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained; 6. In all trials related to rape cases, anonymity of the victim must be maintained; 7. It is necessary to set up a Criminal Injuries Compensation Board under the directive principles that are contained under Article 38(1) of the Constitution of India to compensate rape victims as they frequently incur substantial financial loss and are too traumatized to continue in employment; 8. Compensation should be awarded to victims by the Court on conviction of the offender or by the Criminal Injuries Compensation Board whether or not a conviction has taken place.
The Board should take into account pain, suffering and shock as well as loss of earnings due to pregnancy and expenses of childbirth if it is as a result of rape. The Supreme Court directed the National Commission for Women to evolve such a scheme so as to wipe the tears of such unfortunate victims. In Chairman Railway Board v Chandrima Das case, the Supreme Court went step ahead by endorsing the Calcutta High Court’s view, held that the foreign national is also entitled to fundamental right to life in India and directed the State even to pay Rs. 10 lakhs compensation for a foreign tourist who was raped by Railway Employees under public interest litigation. In the instant case, the victim a foreign tourist from Bangladesh had arrived Calcutta on Dec 26,1998 to catch train for Ajmeer.
She was taken by some of the employees of the Railway Station to Yatri Nivas. The room of Yathri Nivas was booked in the name of employees against Railway card pass. She was raped there by four Railway employees. Later she was taken out to a rented house by another railway employee and again raped. Fallowing the hue and cry she was rescued by the police. The Court said, “As a national of another country, Smt. Hanuffa Khatoon could not be subjected to Physical violence at the hands of Government employees who out raged her modesty. The right available to her under Article 21 was thus violated. Consequently, the State was under a Constitution liability to pay compensation to her. ”
The Court rejected the contention that the matter ought to have been raised through a civil suit rather than a writ petition with the fallowing observation: “…the contention that the victim should have approached the Civil Court for damages and the matter should not have been considered in a petition under Art 226 of the Constitution cannot be accepted. Where public functionaries are involved and the matter relates to the violation of the Fundamental Right or the enforcement of public duties, the remedy would be available under the Public Law not with standing that a suit could be filed for damages under Private Law. in the instant case, it is not a matter of violation of an ordinary right of a person but the violation of Fundamental Right which is involved…” The contention of the Railway that the act complained was performed in course of official duty; since the Government and the said act cannot be official act, hence the Government would not be liable was rejected.
The Court, however mentioned reasoned that the employees of Government of India, who run the railway, manage railway stations and Yatri Nivas constitute a component of Government machinery. If any of such employees commits atrocious act, the Central Government of which they are employees, can, subject to other legal requirements satisfied be held vicariously liable in damage to the persons wronged by those employees. The next in the line is the case of Bodhi Satta Gautham v Subhra Chakraborty case, where the Supreme Court invented a new concept of interim compensation in a criminal trial and enforced the right of life and liberty of Art 21 and also enunciated the principle that fundamental rights can be enforced even against private individuals. In this case.
Subhra a student of the Baptist College of Kohima filed a complaint in the court of First Class Judicial Magistrate, Kohima, Nagaland alleging that Bodhi Satta Gautham, a lecturer of the Baptist College used to visit her residence and that Gautam not only induced her to cohabit with him by given false assurance of marriage, but also virtually went through certain marriage ceremony knowing the same to be fake marriage, and that Gautham compelled her to undergo abortion twice against her free will. Subhra had to undergo abortion for the second time in a nursing home at Dimapur where Gautam signed the consent paper by Deliberately mentioning his name as Vikas instead of Bodhisatta Gautam.
Ultimately, Gautham resigned from his service as lecturer in the Baptist College, Kohima and joined as lecturer in Cachaar College in Assam. In this case, the Magistrate took congnizance of the offence u/s. 312/420/493/496/498A of I. P. C. and issued summons Bodhisatta Gautam for trial of the case, in the mean time the accused moved an application before the High Court for quashing the proceeding u/s. 482 of Cr. P. C. The High Court at Guwahati rejected the application and thereafter Gautam approached the Supreme Court by way of special leave petition in order to quash the criminal proceeding initiated against him and on consideration of the facts and circumstance of the entire case the Supreme Court not only dismissed the ppeal preferred by Gautam, but also issued suo motu notice to Gautam calling upon him to show cause as to why he should not be asked to pay reasonable amount of compensation for maintenance of Subhra during the pendency of the prosecution against him and there afterwards having heard both sides and on consideration of affidavit, the Supreme Court directed Gautam to pay Subhra Chakraborty a sum of Rs. 1000/- every month as interim compensation during the pendency of the criminal case in the court of first Class Judicial Magistrate at Kohima, Nagaland.
The logic behind the order of interim compensation to Subhra is that Bodhisatta Gautam violated Subhra’s most cherished fundamental right to live with human dignity. This is totally a new method of awarding compensation to the victim and the court observed: “This decision recognizes the right of the victim for compensation by providing that it shall be awarded by the court on conviction of the offender subject to the finalization of scheme by the central Government.
If the court trying an offence of rape has jurisdiction to award compensation at the final stage, there is no reason to deny to the court the right to award interim compensation, which should also be provided in the scheme on the basis of principle set out in the aforesaid decision in Delhi Domestic working women’s Forum, the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the court trying the offences of rape which, as pointed out above is an offence against basic human rights as also the fundamental Right of personal liberty and life. ” Rights of Victims: U. N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Every crime has a victim.
Ideally, all victims of all crimes should be entitled to get compensation. A balanced fair and justice demands that apart from punishing the offender, the victim need to be compensated, for the loss, injury, harm, suffering agony and torture sustained to him as result of crime. Mere punishment of the offender cannot give much solace to the victim. Monetary compensation for redressal by a court or otherwise is the only effective remedy as to apply balm to the wounds of victims and his dependents. Not providing the solace or proper redressal to a victim amounts to ignoring and degrading the victim, in a wide sense a new challenge to the protection of human rights. Perhaps, it may be worth considering as to that he State which fails to protect the life and property of citizen has to indemnity a victim against such loss, if not through a statutory provision to pay compensation to the victim of the offence either by offender or otherwise. The modern compensatory jurisprudence ensures due concern towards the victim right to adequate compensation. A new framework of restorative justice, which involved the offender, the victim and the community in creating a balanced approach to justice, is becoming popular. After the second world war, the plight of victims has attracted adequate attention of some progressive thinkers in various advanced countries like U. K, U. S.
A, Canada, Australia as a result a new dimension has been added to the criminological thought to study the victims problems and perspectives. Thereafter, the focus has marginally shifted towards victims in criminal justice delivery system. Perhaps, realizing the gravity of the problem on the basis of recommendations of the Sixth U. N. Congress on Preventions of Crime and Treatment of Offenders, the United Nations General Assembly in 1895, adopted a ‘Declaration on the Basic Principles of Justice for the Victim of Crime and Abuse of Power’. This Declaration lays down basic standards for the treatment of victims and urged its members to resort to appropriate measures to improve their access to justice and assistance to them. According to the U. N.
Declaration on Basic Principles, the victim is a ‘person who, individually or collectively have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violation of national criminal laws or internationally recognized norms relating to human rights’ and also includes ‘where the appropriate, the immediate family or dependants of the direct victims and persons who have suffered harm in intervening to assist victim in distress or to prevent victimization’. The Declaration urged that victims should be treated with compassion and respect for their dignity.
They are entitled to access to the mechanisms of justice and to prompt redress for the harm that they have suffered. The Declaration stressed the need that judicial and administrative mechanism should be established to enable the victims to obtain redress through formal or informal mechanisms that are expeditious, fair inexpensive and accessible informal mechanisms for the resolution of disputes to be utilized to facilitate conciliated redressal of victim’s grievances. The Victims need to be informed of their rights and concerns during the proceedings through such mechanisms and should be provided protection against intimidation and also ensure speedy justice.
Further, the Declaration recommended restitution as an additional ‘sentencing opinion’. Offenders should make fair restitution to victims, includes the return of the property and payment for the harm and loss they have suffered and reimbursement of expenses incurred as a result of victimization. The Declaration also suggested that where the governments, under whose authority the victimizing act or commission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims. When compensation is not fully available from the offender or otherwise, State should provide monetary compensation to the victims.
The Declaration urged its members States should setup a National Fund to provide financial compensation to the both victims who have suffered bodily injury or impairment of physical or mental health as a result of crime as well as the family of those who have died as a result of victimization. Though the Basic principles may not have the binding effect of a covenant its clauses serve as useful benchmarks. The Declaration gives victims a legitimate place in the universal agenda of human rights and left many issues concerning the rights of victims vague and unspecified. Subsequently to over come such problems and to directly address the specific intention of the Declaration and to guide the implementation practices ‘The Hand book on justice for victims’ was approved and published by the United Nations in April 1988.
The clear object of this book was to serve as tool to implement “victim service programmes and for developing victim-sensitive policies, procedures and protocols for criminal justice agencies and others who come into contact with victims”. At present many countries adopted such statutory provisions on the line of Basic principles to provide compensation to the victims of crime either by offender or the state and most of them provide emergency interim relief to the victims immediately. At present, the United Kingdom (which includes England, Scotland, Wales and Northern Ireland) has a crime victim compensation programme. The victim may compensate either by convict or under Criminal Justice Act 1988 or by the state through the criminal Injuries compensation Board.
In France, under the France Criminal Procedure Code 1957, victim as a right claim for restitution and is a prosecuting party and may participate in criminal trail. France has a crime victim compensation programme called ‘Fonds de Grantie’, a compensation fund with National Insurance Scheme. In U. S. A, each of the fifty States operates a crime victim compensation programme to victims of violent personal crime. Each State administers its own programme in accordance with its State Statute. For instance, California Penal Code 1966, Massachusets General Law 1968, New York Executive Law 1967. In Portugal there is an official programme for compensation and assistance to victims of crime.
It is managed by a committee, namely, Comissac De Protecco as Victims De Crime, coordinated by Portuguese Ministry of justice. In Denmark there is a crime victim compensation programme to provide compensation to victims who suffer injuries as a consequence of crime, through an authority called ‘Naevnet Vedrorenda erstating til ofre for forbydesser’. In Netherland, the Netherland Crime victim programme to provide financial assistance to victim of violent or personal crime. A victim can obtain compensation from concerned authority called ‘Schadefonds Gewelds misdrijven’. However, most of the countries funds for compensation to the victims of crime are provided by the State and in few countries funding is provided by Non-Government organization.
It is pertinent to note here that Rape is explicitly prohibited and condemned by the International community as a whole. The International instruments, the Universal Declaration on Human Rights,(1948) International Convention on Civil Political Rights (1996) International Convention on Economic Social and Cultural Rights (1996) the Convention Against Torture and Other Cruel In Human or Degrading Treatment or Punishment (1984), prohibits rape as violation of human right of women and confers the right of compensation to victims with in the scope of human rights perspective. Further, The Convention on the Political Rights of Women (1953) Declaration on Elimination of Discrimination Against Women 1967, Declaration on The
Elimination of Violence Against Women 1993 and relevantly The Fourth World Conference On Women held at Beijing, 1995, SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002) all are intended to promote dignity, prohibit discrimination and Physical integrity of women. New Amendments – A New Year Gift The Code of Criminal Procedure (Amendment) Bill 2008 was approved by the Lok Sabha on 23 December, 2008 and accorded the assent by the President of India in January 2010, but kept in abeyance for about a year. Of late, the Ministry of Home Affairs notified the amendments excluding Sections 41 and 309(b) and the new amendments came into effect from December 31,2009 with sweeping changes in criminal justice delivery system. This is a New Year’s special gift for victims of crime and is a ray of hope for the victims of rape.
The amendments incorporate the recommendations of Law commission in its 154 report (particularly those relating Chapter XV on Victim logy), the Justice Mallimath committee’s “Report on Reforms of criminal justice system”, (devoted part on ‘justice to victims’) and the celebrated judgment of Supreme Court in Delhi Domestic Women’s Forum case, (the guidelines to the formulation of scheme for compensation to the victims of rape) have found considerable space in the amendments. The statement of objects and reasons to the amendments exhibiting its sincere concern for ‘special protection in respect of women’ and asserts that ‘there is an urgent need to provide relief to women’. The amendment inserted a new clause to Section 2 of Cr. P.
C 1973, to mean victim, as ‘a person who suffered any loss or injury caused by reason of that act or omission for which the accused person has been charged’ and the expression victim includes his or her guardian or legal heir. This definition is similar to the definition of United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, though it does not include all the persons of victimization in pursuance of the act of crime. The newly amended provision of the code confers a new privilege (not as a right) to the victim is that with the permission of the Court the victim can engage an advocate of his choice to assist the prosecution. newly inserted proviso in sub-section (8) of Section 24 of Cr. P. C, 1973). This Proviso ensures the victim access to justice, in the sense, to have an active participation in the trail proceedings to safeguard her interest with the assistance of an advocate in addition to the prosecution agency appointed by the State. The advocate’s assistance will be of great help to the victim to strengthen her case, to get information about the progress of the case, and thereby without causing inconvenience to prosecution present her views before a court while granting of bail to the accused which may materially affect the interests and security of her person.
In addition, the advocate’s assistance so helpful to the prosecution to put forth any supplement of evidence adduced on behalf of the victim and also to file arguments before a court in a given case. The large number of acquittals of accused acknowledges the fact that the State agencies of prosecution have not shown keen interest for successful prosecution of the accused comparatively with defence counsel engaged by rich and influential accused persons. The advocate’s assistance of victim to the prosecution may also be act as a check measure against inactiveness of prosecution which usually done in a routine manner due to heavy workload or otherwise.
The wrongful attempts to withdraw or close or to mislead the persecution in favor of the accused due to extraneous factors can be resisted with the assistance of advocate of victim towards such, unscrupulous prosecutions. The newly inserted Proviso to sub-section (1) of Section 157 Cr. P. C of the amendment mandates that ‘in relation to the offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents and guardians or near relatives or social worker of the locality’. This primary safeguard provides greater help to victim of rape to report the commission of offence to the police.
In general, immediately after the occurrence the victim may in a position not even to speak as she was violently assaulted and injured by the offender and almost in a nervous shock condition. In cases of child rape, naturally the innocent victim girl due to fear could not speak or explain nature of the act of rape and often the helpless victim and her parents may hesitate to go to the police station to report the unfortunate incident of rape because it will be publicly known to all which may adversely affect their family honour and future of the victim and sometimes they may be prevented by the relatives of the accused or prevailing social conditions.
In all these conditions victim needs police help at her doorstep and assistance of her parents and her near relatives. Further, the new provision provides scope to ‘a social worker of the locality’ for assistance of victim. In this context the expression ‘social worker’ has not defined elsewhere, in general to mean a woman interested in or working for the cause of women and/or children, those who are familiar with issues of violence against women and children. It will be helpful and needed where in the parents and relatives may not be at the access of the victim of rape to assist her or in such circumstances not even courageous enough to assist her due to the fear of retaliation from accused and others.
This provision encourages such public-spirited citizen come forward to the rescue of victim and to assist the police during the investigation process of the case. The cases of rape, particularly of child rape are expected to deal with utmost sensivity. The new amendment therefore directs that recording of statements preferably by a woman police. Thus, the newly inserted provisions of law provides such help and assistance to restore confidence to victims and to maintain confidentiality while recording statements for further investigation. The police personnel are required to get a victim of rape medically examined as soon as such case is reported.
In order to avoid inconvenience and privacy of women the new Section 54 (substituted for Section 54 of the principal Act) provides that the medical examination of body of a female ‘shall be made only or under the supervision of female medical officer and in case the female medical officer is not available, by a registered medial practitioner’. The medical officer to whom the victim is forwarded shall prepare a report specifically mentioning there in any injuries or marks of violence upon the person and approximate time. When such injuries or marks may have been inflicted. In order to safeguard the dignity of the victim of rape the sub-section (2) of 327 Cr. P.
C (inserted by Act of 1983) provided that the inquiry into and trail of rape or offences under Section 376, Section 376A, 376B, 576C and Section 376D of I. P. C shall be conducted in camera. With a view to provide certain additional safeguards in cases of trial of offences of rape a Proviso to Section 26 of Cr. P. C inter alia a Proviso in sub-section (2) of 327 were inserted, which states that in camera trial shall be conducted as far as practicable by a women judge or Magistrate. The object of both provisos is that the presence of a woman judiciary in a trial of rape case would minimize the inconvenience and to protect the privacy and dignity of woman and to restore confidence to the victims of rape.
A woman can speak and understand another woman better so that where the case rape tried by a woman judiciary will be added advantage to victim women to explain her case without hesitation and particularly in cases of child rape the women judiciary can ascertain the truth where the innocent victim girl is not in a position to explain or unable to express her feelings before the court. In addition, in such a trial the unsavory, irrelevant, indecent questions to victim during the cross-examination by the defence counsel may be automatically curtailed at the vision of the women judiciary. Sec 173 of the Cr. P. C directs that every investigation shall be completed without unnecessary delay. The new amendment exhibits its sincere concern towards investigation process of rape cases, particularly the child rape cases.
The newly inserted sub-section (1A) to sub-section (1) of Section 173, mandates that ‘The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station”. According to newly inserted clause (g) to sub-section (2) of Section 173 Cr. P. C, the investigating officer soon after the completion of the investigation shall forward the to the Magistrate concerned stating ‘whether the report of medical examination of the woman has been attached where investigation relates to an offence under Section 376,376A, 376B, 376C or 376D of the I. P. C’ as a part of the documents referred to in clause (a) of sub-section (5) of Section 173.
The ascertain of fact whether the complainant was actually raped or not can be decided on basis of police and medical investigation reports. This enables to provide compensation to the victim. The State or District Legal Service Authority may order for immediate first-aid facility or medical benefits or other interim relief to be made available on the certificate of the police officer or the Magistrate concerned under the newly inserted Section 357A of Cr. P. C, In order to safeguard the identity and prevent stigmatization sub-section (2) of Section 327 of Cr. P. C mandates that without prior permission of the Court, print and publication of trial proceedings of a rape are unlawful and also punishable. Sec 228(A) of I. P.
C prohibits the printing or publishing of the name or any matter which may known the victim’s identity and contravention of this provision is punishable with imprisonment for up to two years and fine. According to new amendment print and publication of trail proceeding ban may be lifted subject to maintain confidentiality of name and address of the victim (newly inserted proviso (b) to sub-section (3) of Section 327 Cr. P. C) to mean that even with prior permission court, such printing and publication of trail proceedings should not disclose the identity of the victim and a strict confidentiality is to be maintained. The in ordinate delay of trail of cases for a long period, particularly in cases relating to offences of rape not only frustrates the victim, but often leads to miscarriage of justice.
As far as possible, the accused with the assistance of their counsel adopt such delay practice techniques. The important one from the practical point of view is seeking/getting adjournments after witness examination in chief and postpone the cross-examination repeatedly on flimsy grounds and thus creates a vexatious feeling in the mind of witness to attend the court, which in turn leads to willful absent or loss of interest on the part of witness, finally dilute the case in favor of the accused. Further, taking advantage of adjournment of the proceedings often the accused try to negotiate or adduce or threat the witness to speak half-truth in cross-examination in favour of accused or force the family members of the victim to compromise the case.
In order to curtail such practices, newly inserted proviso of amendment mandates that trail relates to offences of rape shall be completed as far as possible, with in a period of two months from the date of commencement of examination of witness (Amendment to Sec 309 Cr. P. C). The above provision principally objected to speedup the trail to do justice to the victim as early as possible. In cases of criminal trials, only the prosecutor, based on the directions from the State Government, can appeal the order of acquittal of the accused by the trial court. The victim has a limited right of revision under exceptional circumstances. The State authorities seldom exercise such power when there is a gross miscarriage of justice that too in sensational cases which attracted the public attention.
Under the new provision of law, victim is vested with a ‘right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation’ and such appeal shall be made in a court in a court where an appeal is ordinarily made against the order of conviction. (newly inserted Proviso to Section 372 of Cr. P. C). In this regard, the victim need not sought the permission of any law enforcement or prosecuting agency to prefer an appeal before an appellate court, where her interest is materially affected and enables to get a satisfactory verdict without prejudice to the accused.
Thus the right of victim of rape gets a priority attention in total response to the crime. Thus the right of victim of crime gets a priority attention in response to the crime. The long cherished ideal of victim’s compensation came to be true through the new amendments as a ray of hope to the victims of crime. The new amendment provisions making it mandatory that every State Government in co-ordination with the Central Government should prepare a scheme for providing funds for compensation to the victim or his/her dependents who have suffered loss or injury as a result of the crime and who require rehabilitation (newly inserted Section 375A).
In this regard, whenever a trial court at the conclusion of trial is satisfied that the compensation awarded under Section 357 of the Cr. P. C is not adequate for rehabilitation or where the cases end in acquittal or discharge and where victim need to be rehabilitated it recommend to the District or State Legal Services Authority to decide the quantum of compensation and rehabilitation measures to the victim. Further, the victims are also entitled to get compensation where the offender is not caught or identified and only the victim is identified, subsequently no trail take place, even in such instances either the victim or their dependents may apply for award of compensation to the State or District legal Service Authority.
There after, on such receipt of recommendation or application, the State or the District Legal Service Authority has to make and complete the enquiry within a period two months and award compensation to them. The State or District Legal Services Authority in appropriate cases on the basis of certificate of issued by a police officer or Magistrate of the area may also order for immediate medical assistance or other interim relief to the victim. Conclusion: Compensation to the victims is not an absolute remedial measure but only a poor substitute that has to be given in recompense for the loss sustained by the victim. A victim of rape cannot be reimbursed by allotting monetary compensation to her by the offender of crime or State. For, her price is far above rupees and cannot be translated into monetary terns.
It cannot back to her what she was lost is a dearest one to her and not possible to restore her dignity and honour in the society which was forcibly grumbled by the offender. It is submitted that after the incident of rape the members of society are doing the greater harm to the victims by attaching a stigma to her modesty and character as a ‘raped women’, consequently out casting her from the society. The right environment has to be created in this direction to get back her in to mainstream of society is the only proper rehabilitation and this is possible unless a change in the attitude people towards raped women and until then rehabilitation is a mere programme on paper as far as victims concerned. Sexual desire is natural to all human beings.
But where there is a basic sexual instinct sleeping in the minds of human beings, no law can put an end to that, but only curtail its practices to some extent. It can be possible to prevent only through the change in the mind setup towards aggressive perversions of thoughts and deeds to fulfill such desires. It is easier to stop such offences by generating adequate sexual awareness, social awareness towards gender sensitivity and human values. It may be submitted that mere codification of Statues carries no meaning, unless steps are taken to translate these newly amended provisions of law put it into practice at gross root level by law enforcement agencies, otherwise all Amendments will prove a farce.