Rape & Murder - Speedy Justice: Challenges Before Judiciary & Society

Supreme Court of India has reiterated time and again that "Rape is a crime against basic human rights of a woman and is violative of the most cherished fundamental right in the Constitution of India i.e. right to life and personal liberty contained in Article 21". It is unfortunate that we as a society are witnessing the incidents of rape/ gang rape/ rape and murder crossing all bounds of brutality, so much so, that the frequency of occurrence of such incidents does not permit us as the society to get over the shock of one incident over the other.

The data retrieved from the official website of Government of India (data.gov.in), shows alarming number of rape cases reported each year. In the last 15 years there have been 3,41,400 (Three lakh forty one thousand and four hundred) Rape cases reported. As against the rape cases reported each year, the conviction rate each year is very minimal, and that should be a matter of serious concern for a civilized society committed to give equal treatment to its women population. There are only 6,636 convictions in the year 2014 as against 36,735 cases of rape reported. Similarly in 2015, total 7135 convictions while the cases of rape reported are 35,651. In the year 2016, total 6289 convictions while the cases of rape reported are 38,947. These figures may not be exhaustive and only refers to the cases reported while as a matter of fact, the unreported cases each year may be of the same number or more.

It has unfortunately become a routine to find mention of few rape incidents on a daily basis in the news reports. In this year (2019) itself, several horrifying rape cases have been reported, to mention a few are: (i) a 16-year-old girl was gang-raped for 5 days in Andhra Pradesh; (ii) a 19-year-old girl from Bihar was gang-raped by 6 men in front of her father; (iii) a11-year-old girl was raped and murdered in Unnao and her body was found lying in an orchard; (iv) a 3-year-old girl was allegedly raped by her 11-year-old neighbour in Dehradun when the girl's parents were not at home; (v) a 9-month-old girl was raped in Telangana after the man took her to a secluded place in the wee hours; (vi) a 3-year-old girl was raped in Bandipora, J&K during the holy month of Ramzan after the accused lured her with a candy; (vii) a married woman was gang-raped by 3 men in Bikaner when she went to collect firewood; (viii) a woman was repeatedly gang-raped at a farm house in Ludhiana after she and her husband were abducted, looted and beaten up, (ix) a 16-year-old girl was raped at gunpoint In UP's Shamli district when she went out to relieve herself & (x) a 5-year-old girl was raped & murdered by her neighbour after he took the girl with him for a puja.

The most recent incident of brutal rape and murder, is the Hyderabad incident where a young female doctor had been gang-raped and murdered by her perpetrators, which shook the conscience of the nation and we all have witnessed mass protest from all corners of the country.

The rise of crime against women and rape cases in India is alarming. We really need to give a serious thought as what exactly we as a nation and civic society should do to ensure that the women and girl child of this country can live freely and without any fear. We, as a society have so far failed to handle this problem and perhaps we all are in a search for the solution of this problem created by mankind itself and thus the solution lies within us only. There must be several facets of this problem to be addressed, but here in this session we would be concentrating on the Legal aspect of this problem and the possible solutions to make the society a much better place for its entire womankind.

When it comes to law, few questions come to mind- as to whether the existing laws are sufficient to deal with the menace of rape; whether the existing legal framework offers enough deterrence and whether strengthening the society by educating all about the protections available to women in law and the penal provisions for all kind of offence of rape, can offer some solution to deal with this issue/ problem.

1. Police - Investigating Agency:

The failure begins at the end of the society, when a person rapes a women/ girl child. The second leg of failure takes place (invariably) when the victim or her family decides to lodge a complaint. Though not only it is a mandatory requirement under section 154 Code of Criminal Procedure for a police officer to immediately take the complaint of rape, record the information and register the FIR, take the victim for medical examination and her statement to be recorded under 164 CRPC at the earliest and without any delay, by the nearby Metropolitan or Judicial Magistrate irrespective of the fact whether he has jurisdiction over the case or not. Still it is invariably heard that the Police played the jurisdiction game and refused or avoided to register the FIR on one pretext or another (as is happened in Hyderabad case. Such an approach on part of the police officers plays a negative role in the victims who have already suffered a violence on their person and are in place of a very sympathetic and protective environment faces a situation of non-cooperation of the police and which unfortunately continues in good number of cases till the completion of the process at their end. This is a serious concern which has to be addressed and a major reform action has to be taken to make the investigating agency -victim friendly - so as to offer the victim a protective and consoling atmosphere, generating a belief in the society that the victim who had already suffered a worse kind of trauma and violation would not be harassed any further and that the police would leave no stone unturned to get her perpetrator punished.

In rape cases the number of witnesses is usually very less barring exceptions and therefore an extremely quick exercise at the end of the police from registering the FIR to catching hold of the accused to complete the investigation in a scientific manner and to file the charge sheet, should be a routine and an exception.

In State of Karnataka v/s Shivanna @ Tarkari Shivanna (2014 (8) SCC 913), the Supreme Court of India noted the disturbing feature of consistent recurrence of the heinous crime of rape and gang rape all over the country and issued certain guidelines for fast track procedure for investigation without causing unnecessary delay.

Fair and effective investigation in a fast track mode in each case of rape with media reporting at all appropriate stages would play a major role in achieving one limb of speedy justice. This shall be followed by expeditious judicial process in its entirety.

2. Role of Courts-

Delay in justice delivery system or the judicial process is a very well-known problem in India, which is yet to overcome. It is a harsh but a well-known fact that when we discuss about delay in the judicial process, we talk too much about speedy trial, but what is missed is the necessity of getting the final verdict and imposition of the sentence upon the accused in the shortest possible time. One must understand that for a law or a penal provision to play a role of deterrence the outcome of a criminal trial in the shape of its final verdict and actual implementation of punishment on the accused is equally important as that of the gravity of the punishment and all this should be done before the public memory fades.

^[1], Hussainara Khatoon (I) v. Home Secretary, State of Bihar^[2]]. Right to speedy trial was again asserted in A. R. Antulay^[3] and by the seven judge bench in P. Ramachandra Rao^[4] where this Hon'ble Court has held that though our constitution does not declare right to speedy trial as a fundamental right but it is implicit in the broad sweep and content of Article 21 and that reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. The Seven Judges Bench while referring to Hussainara Khatoon [1] reiterated that "it is the constitutional obligation of the State to dispense speedy justice more so in the field of criminal law and paucity of funds or resources is no defense for denial of right to justice emanating from Article 21,19 and 14 and the preamble of the Constitution as also from the directive principles of State Policy". This principle has been reiterated in Ranjan Dwivedi^[5]. Ironically most of the cases were the cases where the rights of the accused were being discussed or dealt with by the Hon'ble Supreme Court and the adverse effect of delay on the rights of the accused was being discussed. There are unfortunately very few cases where the Hon'ble Supreme Court dealt with the issue of speedy trial from the point of view of the victim, especially about the effect of delay on the principle of deterrence and the society at large as a sufferer. But that does not mean that there are no such instances.

^[6], the Hon'ble Supreme Court directed speedy trial on day to day basis by taking note of the fact that the nation and the people of this country are seriously concerned with the outcome of the case. It further observed that prolonged litigation undermines the public confidence and weakens the democracy and the rule of law, In Asian Resurfacing^[7] -, The Supreme Court of India, observed that delay in trial effects the faith in rule of law and efficacy of legal system. It effects social welfare and development and has deleterious effect on the administration of Justice in which the society has a vital interest. This was the case where the Supreme Court ruled that no stay by the HC/ Revision Court beyond a period of six months would continue on its own unless extended by reasoned order. The Court also held that in criminal cases, matters to be decided on day to day basis, normally not exceeding 2-3 months. This direction for trial on day to day basis has been passed by the Supreme Court of India in various cases to ensure speedy conclusion of the trial including that of 2G Scam case^[8], PIL against Honour Killing case^[9], West Bengal Kangaroo Court^[10] (where the village court order to rape a woman was followed and executed by 13 persons of the village), Unnao Rape Case (Order dated 01.08.2019 in suo moto writ petition crl. no 1/2019), Kathua Rape Cade (Mohd. Akhtar - writ petition No 85/2018).

BUT, in none of these cases the court has even whispered that it is the mandatory requirement of law – S. 309, Code of Criminal Procedure, that in every enquiry or trial the proceedings shall be continued from day to day unless the adjournment beyond the following day is found necessary by the courts for reasons to be recorded in writing. The Supreme Court of India has rather issued directions for day to day hearing in peculiar facts of those cases to ensure speedy trial on day to day basis. In Shambhunath Singh (2001 (4) SCC 667), the Supreme Court of India has noted with great amount of dissatisfaction that the mandate of section 309 CrPC has been ignored by the trial courts and this has been a common practice in regular occurrence that the trial courts flout the said command with impunity. The Supreme Court of India held that the presiding officers of the each court need to chalk out methods to comply with legislative mandate of Section 309 of Cr.P.C.

Thus, as a matter of fact, due to the overall negligence in noticing the mandatory provisions of law by the lawyers as well as by the courts, the day to day trial which is a mandatory requirement of law (S. 309 CrPC) and thus should have been followed without exception in each and every trial, has rather become an exception. A conscious effort to follow the mandate of law by all concerned and may be by bringing this to notice of all by way of in-house circulars, a major error in the criminal trial system could be redressed and a much desired goal of criminal trials to be concluded in the shortest possible time could have be easily achieved. What seems to be missing is the will and conviction in the mindset of the entire judicial system to adhere to the mandate of section 309 CrPC in letter and spirit.

It is an unfortunate truth that not all the rape victims come out and report the incident and it is even more unfortunate that the delay in the entire justice delivery system plays a vital role in causing an irreversible damage to the theory of deterrence. It has also been noticed that even in the cases of rape which have been heavily reported in media, the Fast track courts have been constituted and trial had been finished in a shorter period but the subsequent judicial process i.e. the appeal before the High Court and Supreme Court took an enormously long time to be completed and between this period i.e. date of conclusion of trial and verdict of the last court, thousands and thousands incidents of rape take place. For example, Pune BPO employee gang rape, where the BPO employee was kidnapped, raped and murdered by the cab driver and his friend in a night of November 2007, raised huge public uproar and agitation and it was debated for several days in the media. The accused were convicted and sentenced to death in 2012 (5 years lapsed), the death penalty was upheld by High Court and Supreme Court and their Mercy petition was rejected by the Governor of Maharashtra in 2016 and President of India in 2017. In this manner the incident that took place in 2007, took 9 years to get a final verdict from the Last Court and the mercy petition process took another year. The accused citing delay in the sentence finally got benefit from the Bombay High Court and the sentence has been commuted to Life Imprisonment from death now in July 2019 – This frustrates and rather fails the deterrence theory completely.

^[11] has noted that the delay in conclusion of trial has direct nexus with the collective cry of their society and anguish and agony of an accused (quaere a victim). That it is a sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful.

It is astonishing to note that Dhanonjoy Chatterjee (West Bengal Case) where the accused was a guard was found guilty of rape and murder of a minor girl, is the one and only case in India where accused has been executed till death for an offence of rape and murder. His execution took place in 2004 (15 years since then). As per the site of Ministry of Home Affairs, 3,41,400 Rape cases have been reported since then, death penalties have been awarded in several cases, but not a single case of execution since then. The theory of deterrence gets a huge blow with this tolerant approach.

A very good example of expedited trial is of Jodhpur where the fast track court within 16 days completed the trial and convicted the accused for life imprisonment for raping a German Tourist. Though in this case also there was a direction by the High Court to complete the trial within one month. We need to make such fast track trial a regular norm as against exceptions.

Among the five theories of the criminal jurisprudence namely, deterrent, retributive, preventive, reformative and expiatory, the deterrence theory sets the dreadful consequences i.e. punitive actions against the wrongdoer in order to curb the menaces of the would be evildoers and it also deters the criminals to commit the crime for the next time. The deterrence facet of the criminal penal jurisprudence has been completely frustrated in the cases of Rape and rape & Murder because of this constant feature of enormous delay in the final verdict and actual implementation of the verdict. By the time the final verdict comes and is implemented, the incident in the public memory is not only virtually forgotten but in the meanwhile many-many such incidents of far more horrendous brutality have already taken place.

Few measures have been advised by the Justice Verma Commission in its report dated 23.01.2013, including that of speedy justice as not merely an aspect of right to life with dignity, but is essential for efficacy of the law and it's desired impact as well as for prevention of its violation. Major amendments were brought in IPC and CrPC, pursuant to the recommendations of the Justice Verma Commission wherein various categories of the offence of rape were inserted by way of section 376A - 376E and the offence of sexual harassment was further defined and categorized in separate offences by way of inserting 354 A and 354-D, S. 166-A in IPC, effective procedural changes were brought in section 154, 164, 164-A, and 309 in CrPC by way of Amendment in 2013 post Nirbhaya incident and now in 2018 post Kathua gang rape case. The mandate of the whole scheme is very clear, not only the penal provisions have been made much more harsh (though still space for improvement) but much more specification has been brought in crucial procedural provisions namely section 154, 164, 309 CrPC, etc. Though, even the un-amended section 309 CrPC would require trial of a rape cases to be completed on day to day basis within 2 months from the date of commencement of the examination of witness, as far as possible, but the amendment post Nirbhaya case in 2013 has made section 309 mandatory which says that the trial shall be completed on day to day basis within a period of two months from the date of filing of the charge sheet.

There is unfortunately no time bound provision for appeals/ revisions to be decided in a time bound manner by High Court and thereafter by Supreme Court in all cases of crime against women specially the rape cases. The Indian law making body (Parliament) and the Judiciary is therefore required to pay their concerted attention towards this grey area and as the Supreme Court has done in cases of Environment, by constituting special forest bench to sit virtually on each Monday and Friday, or to have constituted Social Justice bench to sit on weekly or fortnightly basis, should either by way of in-house circulars or by amending Supreme Court Rules and on the same lines the High Courts should designate one or two benches to sit in a regular manner and decide the appeals in rape cases in a time bound manner, the trial court should also avoid unnecessarily lengthy list of witnesses to avoid unwarranted delay and any deliberate attempt to prolong the trial. An overall mission oriented approach is required both at the end of the law making authorities and the Judiciary.

SENSITIZATION OF ALL STAKE HOLDERS IS NEEDED-

It is a saddening truth that whenever horrifying rape takes place, good amount of hue and cry is made, we all discuss the issues at length on all forum, but then the life goes on, nothing changes in the society by and large except adding few more ifs and buts in the life of the women to be followed by few more self-imposed restrictions. As stated above though post Nirbhaya case, major amendments have been brought in Cr.P.C. and I.P.C., but even these amendments are not followed and implemented strictly by the respective agencies. I doubt that even any lawyer is pointing out in court the legislative mandate of completing the trial on day to day basis within two months from the date of the charge sheet. This shows that there is the need of sensitization of all stake holders of the justice delivery system right from the stage of registering the FIR till the last court of the country.

A COMPREHENSIVE AND SUBSTANTIAL AND SEPARATE LEGISLATION FOR CRIME AGAINST WOMEN MUST BE ENACTED-

^[12]. Section 4(1) of Prevention of Corruption Act requires Special Judge to conduct the trial, Section 4 (4) requires the trial to be conducted on day to day basis, Section 19 (3) (c) mandates that there shall be no stay and no revision against the interlocutory orders.

Though in IPC, there were provisions of section 161-165-A dealing with the offences relating to corruption and bribery by the public servants, but the same were repealed in view of enactment of Prevention of Corruption Act. Similarly, to deal with the frequent offences of bouncing of cheques in commercial transactions, the legislators have come out with a special act called Negotiable Instruments Act, 1881. For Juveniles found on the wrong side of law, a separate legislation in the name of Juvenile Justice (Cure and Protection of Children) Act has been enacted. To address the menace of atrocities caused to the Schedule Castes and Schedule Tribes, a special legislation in the name of SC and ST (Prevention of Atrocities) Act, 1989 has been brought which requires the cases under this Act to be tried by a special court (section 14), special PP to be appointed (section 15), and trial to be concluded within 2 months on day to day basic (section 14(3)). Similarly the Narcotics Drugs and Psychotropic Substances Act 1985 has been enacted to deal with the increasing problem of transit trafficking of drugs etc. This special legislation again requires special courts to be constituted for trial of cases under this Act (section 36 and 36 A) and section 37 says that the offences under the Act are non bailable. The Protection of Children from Sexual Act, 2012 was enacted for trial of offences against children. This special legislation, also requires special courts (section 28) special PP (section 32) and mandates that evidence to be recorded within a period of 30 days of taking cognizance (section 35) and trial to be completed within a period of 1 year from the date of taking cognizance (section 35(2)). While dealing with the menace of honour killing, the Supreme Court of India in Shakti Vahini^[13] framed guidelines for all states to follow which includes trial on day to day basis, to be concluded within 6 months, designated fast track courts, special cell to be created in each district, etc.

The above examples show that so far the menace of rape and crime against women has apparently not been taken as seriously as the offences (above referred) are taken note of by the Legislators. It is high time that a self-contained comprehensive legislation is enacted in respect to crime against women to be tried by special designated courts for which special public prosecutors are appointed and the whole exercise is completed in a time bound manner as a mandate. This would certainly help in addressing the issue of prolonged trials and appeals. Enactment of a separate Legislation would also send a strong message to all.

Direction by Supreme Court or High Court for constitution of Fast track courts for individual cases like in Kathua, Unnao, and now in Hyderabad case, are helpful only in those individual cases whereas such should be case for all cases invariably.  

AGE OF TREATING JUVENILES SHOULD BE REDUCED FOR OFFENCES OF RAPE-

Right from Nirbhaya Case (1 juvenile) to Shakti Mills (2 juveniles) to Kathua (1 juvenile) to Hathigaon rape case (where a group of 5 boys (12-16 years) raped a 12 year old girl by dragging her to an abandoned place and raping her throughout the night), to Mayur Vihar murder case, where a group of juveniles robbed and murdered a family, there are several incidents where the offender or the co-accused was below the age of 18 years but have played a significant role in not only the act of rape but brutally causing harm to the body of the victim, including inserting objects etc. In Nirbhaya's case, the perpetrator who got away being under 18 years of age, had played one of the gruesome role in the entire incident. Similarly in Hathigaon rape case, the 5 boys between 12 to 16 years of age raped the minor girl throughout the night. Involvement in rape cases of boys below the age of 18 is no more an exception these days. Though the 2015 amendment in Juvenile Justice Act has carved out an exception for the children between 16-18 years of age in heinous crimes, but it is high time when for the offence of gruesome act of rape the accused should not be let go for being below 16 years of age. The lower bar of age for the purpose of treating the person as juvenile needs to be further lowered down when trying gruesome cases like rape where there is no influencing the mind of the person and there is complete use of his body to commit the offence. Studies on Development Psychology have shown that children of the age group of 7 years to 12 years start showing signs of privacy and understanding of their sexuality. They start changing in private rooms, understanding jokes about the opposite gender, reading and watching content that is available to them in the form of books, magazines and websites. So therefore, when we talk about persons of 12 years and older, it can be inferred that their understanding enhances with age and they are taught about the same in their schools in class 8 itself. The defense of unawareness or innocence should not be applicable to cases where the crime of such nature is committed like the Hathigaon case. The discretion of the court has to be put in use case-wise to decide whether the defense of innocence is applicable or not.

SPREADING PUBLIC AWARENESS ABOUT THE PROVISIONS OF LAW AVAILABLE TO THE VICTIM AS WELL AS THE PENAL PROVISIONS IN CASE ANYBODY COMMITS SUCH OFFENCE WOULD HELP IN ADDRESSING THIS ISSUE-

In the 2019 Budget, the budget of Ministry of women and Child Development has been increased by 17% and the total amount of Rs. 29,000 Cr has been set aside for women and child development. An amount of Rs 1148 Cr has been earmarked for Protection and Empowerment of Women. What is required is that these funds and if required additional funds are allocated for awareness programs to be conducted in schools, colleges, villages, blocks, by way of periodic monthly programs. Small documentary adds should be shown in the beginning and during interval in all movie halls and on all National and Regional News as well as Entertainment Channels as a compulsory feature for those channels to function and to air their programme, in every one hours interval. These advertisements and the awareness programs should inform the public the following:

1. we all must respect our womankind;
2. it is the rapist who has to be looked down and not the woman/ girl who had been victimized;
3. in case a woman or her family reaches to the police to lodge a complaint, it is the duty of the police officer to take the complaint of rape/ sexual harassment of any nature and register an FIR without any delay. The police cannot say No on the ground of territorial jurisdiction – S. 154 CrPC + Constitutional Bench decision in Lalita Kumari 2014 (2) SCC 1);
4. Medical of the victim has to be done immediately within 24 hours from the time of receiving the information - S. 164A CrPC;
5. The police should get the Statement of the Victim recorded by a Judicial Magistrate at the earliest possible. (S. 154 r/w 164 CRPC).
6. In case the police officer refuses to register the complaint, the complainant can make a complaint by post to the Superintendent of Police;
7. A police officer guilty of failing to register a complaint of Rape or sexual offence against women, is liable to be punished with rigorous imprisonment for a period not less than 6 months up to 2 years ( 166A IPC).
8. The public should also be made aware that as per the amended section of CrPC the trial will be done on a day-to -day basis to be completed within 2 months, that there is witness protection scheme, that the witnesses are entitled to be paid for their to and fro and for missing their work for the day.
9. Awareness should also be created about the penal provisions for all offences of crime against women including sexual harassment covered by section 354 to354-D, S. 376 to 376 E, etc.