Delhi high court's notice to police in rape case

THE TIMES OF INDIA
Feb 27, 2014, 01.42 AM IST

NEW DELHI: Delhi high court on Wednesday issued notice to the central government and Delhi Police on the plea of a woman who has accused a police official of raping her and video-graphing it after a promise of marriage.

Justice Veena Birbal asked Delhi Police to file a status report on the issue and posted the matter for March 12. The court also issued notice to the SHO of Ambedkar Nagar and Assistant Commissioner of Police of southeast district. "Issue notice to all respondents. Let status report be filed by the police before next date of hearing," the court said.

A trial court on February 9 this year ordered a first information report be registered against Varun Kumar, a sub-inspector at Ambedkar Nagar police station in Delhi, on charges of raping and criminally intimidating the woman.

During the hearing, advocate Gaurav Kumar Bansal appearing for the woman told the court that instead of investigating the FIR independently and without any bias, Delhi Police officials are pressuring her to compromise with the sub inspector. Filing the plea, the victim alleged that Assistant Commissioner of Police (Southeast) J.S. Malik and Ambedkar Nagar police station chief Abhay Yadav are making every possible effort to protect Kumar, and making calls to her to compromise.

"The petitioner (victim) has recorded the mobile calls made by Abhay Yadav to her where the SHO said that he is personally interested in the present case because of the instructions of an ACP..." the plea said. The SHO (police Station House Officer) insisted various times that the woman should compromise with Kumar and also offered her Rs.10 lakh as inducement, the petition said.

Saying she has no hope of having a "free, fair and independent investigation" by Delhi Police, the woman pleaded to the court to transfer her case to the Central Bureau of Investigation. The plea also sought direction to the police commissioner and the home ministry to initiate the criminal proceedings against the ACP and the SHO.

In her complaint before the metropolitan magistrate, the woman alleged that she met Kumar about three years back and the two became friendly. She said on the promise of marrying her, the police official established a physical relationship with her, forcibly and despite her objection. She said Kumar made a video clip of their relationship on a mobile phone. He threatened to show the recording to her family if she tried to force him into marriage.

Important one to read

In April 2013, Additional Sessions Judge Virender Bhat noted that the legal principle of reliance on the sole testimony of the victim had become "an easy weapon" to implicate anyone in a case of rape. Justice Kailash Ghambhir of the Delhi High Court stated that penal provisions for rape are often being misused by women as a "weapon for vengeance and vendetta" to harass and blackmail their male friends by filing false cases to extort money and to force them get married.

Legal position

In April 2013 the Indian Parliament introduced amendments to the Indian Penal Code making various changes to the anti-rape laws in India. The offence of rape under Section 375, have made both penile and non-penile insertion into bodily orifices of a woman by a man an offence. The definition is broadly defined in some aspect, with acts like penetration bypenis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.

The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death. In the case of "gang rape", persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

Certain changes has been introduced in the Criminal Procedure Code, 1973 and Indian Evidence Act, like the recording of statement of the victim has been made more friendly and easy, character of the victim is irrelevant for consideration, presumption of no consent where sexual intercourse is proved and the victim states in the court that there has been no consent, etc.

The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape. Although, the decision of death penalty for the most extreme rape cases was approved by the Indian parliament, marital rape is still not accepted as a criminal offense within Indian legal framework, except during the period of judicial separation of the partners. In the 1980, women's rights groups lobbied for marital rape to be declared unlawful, as until 1983, the criminal law (amendment) act stated that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape".The government officials argued that the contract of marriage presumes consent to sex and that criminalising marital rape in turn would weaken family values in India.

The Protection of Women from Domestic Violence Act 2005 (PWDVA) which came into force in 2006, provides protection against marital rape or other forms of sexual perversions and domestic violence. However, it offers only a civil remedy for the offence.

Section 375 of Indian Penal Code, 1860

A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

1. Against her will.
2. Secondly.-Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age.

Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Delhi

Delhi

National Crime Records Bureau (NCRB) presented that Delhi had about 568 cases of rape in 2011, high compared to 218 in Mumbai. In the period of 2007-2011 period, Delhi topped the chart, followed by Mumbai, Bhopal, Pune and Jaipur. Due to the frequency of rape incidents in Delhi, it was called the "rape capital" of India by the Times of India.

A report from September 2013 included that 1,121 rapes were recorded in last 8 months. Police regarded the rise to be 'good sign', noting that more rape cases that more cases are now being acknowledged.

INTRODUCED RAPE IN INDIA

Rape in India has been described by Radha Kumar as one ofIndia's most common crimes against women^[1] and by the UN’s human-rights chief as a “national problem”.^[2] Marital rape is not a criminal offence