Certainty in sentencing rapists could reduce incident of rapes in Manipur

N Brajakanta Singh *

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One sex crime is reported every 20 minutes in India and crime against women are on increase. Rape has been treated as the most heinous and inhuman act of sexual assault and violence against a hapless women. It not only amounts to a brutal attack on integrity and dignity of a woman but also unjustifiably disregards her legitimate control over her body.

It can certainly shatters the values and foundations of the lives of rape victims. It is opined by some that rape of a woman is more heinous crime than murder because rape reduces a woman to a state of living corpse.

The recent sentencing of rapists involved in gang-rape of a student of T.G. Higher Secondary School by the learned Sessions Judge, Manipur East can seen as a good precedent for a real change in rape incidents in our state. The present article endeavours to examine the judgment of the learned Sessions Judge who unmistakably sets a precedent for quick disposal of rape cases as well how Judiciary can play a significant role in arresting rape cases in Manipur.

The crime of rape is committed by a person who has non-consensus or unwilling sexual intercourse with a woman. It is the ravishment of a woman, without her consent, by force, fear, fraud or against her will. The provisions relating to the offence of rape as provided in our penal code has witnessed a number of changes and the latest being death penalty to gang rapists when the victim succumbs as a result of the crime. It was felt that surety and severity of the punishment combined with a message of zero tolerance for rape are the only ways to control the prospective rapists.

In the case of T.G School case, two accused were charged for gang rape covered by section 375(5) of the Indian Penal Code which deals with the offence of rape with consent given by the victim by reason of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance administered by the rapists thereby making mentally incapable of exercising her will or giving consent for the sexual act which is punishable with rigorous imprisonment for a term not less than 10 years which may extend to life imprisonment under section 376(2)(g) of the IPC.

The two accused are also charged with criminal conspiracy to commit gang rape within the meaning of section 120B of the penal code which is a substantive offence punishable with death, imprisonment for life or rigorous punishment for a term of 2 years or upwards. The learned Sessions Judge has rightly convicted both the accused on both the counts.

The law is very clear that penetration is sine quo non for the offence of rape. It was not disproved by the defense counsels, in the case, that the accused persons did not penetrate. Another point that needs to be dealt with elaborately is whether the victim had consented or not in the act because a non- consensual sexual intercourse is the crux of the offence of rape. The victim's voluntary or free consent to the act nullifies the charge of rape and the accused would be acquitted.

It was certain that the victim was administered some intoxicant mixed with 'Appy' juice drink and the victim felt unconsciousness after consuming it making her mentally incapable of exercising her will or giving consent for the sexual act. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in, cannot be deemed to be consent.

Consent means active will in the mind of a person the doing of the act of and knowledge of what is to be done. Under Indian law, it is for the accused, not for the victim of rape, to prove that the alleged sexual act was consensual which could not be done by the defense in the present case. A judge will not accept the plea that the victim has consented to the act if the same was committed under influence of an intoxicated substance, that too administered by the accused persons.

In rape cases, it is obvious that victim's testimony is vital and if it is found to be natural, trustworthy and worth being relied upon, conviction can be done on the sole testimony of her without any corroboration. It is now well settled that the testimony of a girl or a woman who complains of rape should not be viewed with doubt, disbelief or suspicion. In fact, the very nature of the offence of rape negatives the possibility of finding direct witnesses and courts can seek for corroborating only when it finds difficult to implicit reliance on her testimony.

Generally, a woman would not expose her chastity or her reputation by making false allegations against and accused that she was raped; but there may be very few instances, as found in our state, where such attempts are made in cases where there is discord between the families of the boy and the girl after elopement regarding marriage. It is also settled law that testimony of the victim of rape can be treated without corroboration in material particulars.

A rape victim has already undergone a traumatic experience and if she is made to repeat again and again in unfamiliar surroundings, what she been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted a discrepancies and contradictions in her evidence.

In the instant case, the victim was ashamed to divulge to the police that the accused no. 2 had also raped her in the restaurant in presence of the accused no. 1. There is also a statutory provision in the form of section 114-A of the Indian Evidence Act that where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

The victim voluntarily deposed before the learned Sessions Judge that she did not consent to the sexual assault done on her by the accused persons. The learned Judge explained that there is a presumption as to absence of consent in case of gang rape and it will be presumed that the victim did not give consent, as this presumption is based on the reasoning that nobody can be a consenting party to several persons simultaneously in rape.

In respect of criminal conspiracy of the accused persons, the learned Judge hold that if it were a genuine date between the accused no.1 and the victim, there should be no occasion and reason for picking up accused no.2 on the way by calling through mobile phone. It was also confirmed that from the deposition of the prosecution witness no. 3 that accused no.1 told him that accused no. 2 had planed the crime, which was not disproved.

Presence of accused no.2 in the restaurant was not disputed rather he commits the crime of rape in presence of accused no.1. He was instrumental in bringing the juice mixed with intoxicated substance to be involuntarily consumed by the victim. The learned Judge observed that all these circumstances and conduct of both the accused persons shows criminal mindset of them of committing the offence of rape within the meaning of section 120 B of the penal code.

A conspiracy is always hatched in secrecy, direct evidence in proof of a conspiracy is seldom available and therefore, the circumstances proved before, during and after the occurrence become relevant in determining complicity of the accused persons. The circumstances and conduct of the accused persons are relevant considerations.

Another significant aspect in the instant case is whether a person can be convicted of an offence when the same is not included in the charge? The learned Judge referring a number of decided cases of the Supreme Court of India held that a accused can be convicted of an offence even though the same was not included in the charge, where no prejudice has been caused to the accused and there were enough materials on the evidence of such offence.

The present case also witnessed the evidentiary value of expert opinion of medical doctor who examined the victim. It was rightly held that the medical expert is not a witness of fact but is called to assist the court to form an opinion on the basis of symptom found on examination. The doctor has, in rape cases, to state only whether there was recent sexual intercourse with the victim and whether there was any injury especially on her private part. It is indeed difficult for any doctor to say with precision and exactitude as to when a particular injury was caused and as to the exact time when the accused may have had sexual intercourse with the victim.

A judge does not preside over a criminal trial merely to see that no innocent man is punished. He also presides to see that a guilty man does not escape. Both are public duties which the judge has to perform. Sentencing courts are required to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence proportionate with the crime committed.

In view of the rising crime rate, particularly violent crime against women in the state, the learned Sessions Judge held that the sentence to be awarded in the present case should be deterrent one and also commensurate one. He awarded the convicts 15 years rigorous imprisonment with Rs. 25000/- as fine and in default of payment additional 3 years rigorous imprisonment for the offence of gang rape and 10 years rigorous imprisonment with fine amount of Rs. 10000/- and in default of payment of fine they are required to undergo another rigorous imprisonment for 2 years. To me it was a loud and appropriate punishment, for gang raping of innocent student which will definitely set a precedent in the state. This judgment shall discourage potential criminals as well as repose faith in the judiciary.