Review of Rape Related Cases/Laws

1. AIDS Awareness Group (AAG) started working in the Central Jails, Tihar on 8th June 1995, providing assistance and guidance on AIDS related issues, as well as free legal aid to prisoners in need.

2. AAG's Programme for the prisoners includes educating the prisoners on the problem of AIDS and the precautions that can be taken to protect oneself from HIV infection.

3. AAG's major Programme is on Human Rights. AAG provides legal options as well as free legal aid to the needy under trial prisoners. AAG's legal assistance has resulted in bails being granted, and the release of very many prisoners. There have also been many acquittals through AAG.

4. During these legal interventions in Tihar Jail, AAG's team interacts with the inmates, and through these, we have come to know that many prisoners appear to be innocent. They are locked up, under what appear to be fabricated charges, or wrongly caught for certain offences, they do not seem to have committed. While interacting with the prisoners, AAG's team realised how helpless those prisoners were, who had not committed any offence but are / were still incarcerated in the jail. The conditions get worse when the prisoners are inside the jail under the charges of rape, dowry harassment, or under the various sections of NDPS Act, etc. These laws are so rigid, and harsh that, if anyone gets charged under these laws they have to languish in jail for many years because these laws are cognisable in nature. Bail is seldom granted in such cases. We give a few examples showing how the alleged victim's parents, and the police, take advantage of the provisions of the rape laws. There are examples where the girl herself, makes wrongful use of these sections to earn easy money.

Why the topic of Rape

5. Not a single right-minded person can be opposed to just punishment to an offender who indulges in the crime of rape. Rape leaves the victim with a permanent scar and the trauma haunts her throughout her life. She remains affected by the psychological trauma for most of her life and not just immediately after being subjected to it.

The Human Rights' concept includes the rights of women. When the law is ineffective, or there are loopholes in the law, they often lead to miscarriage of justice. There can be no hesitation in fighting for better laws and better procedures so that the rapist is punished and the laws act as a deterrent against rape. Throughout History

women have been discriminated against, and they have been suppressed. There is a bias against women, and unfair treatment is meted out to them. It therefore became imperative to take steps through appropriate changes in the law to correct this. The august bodies of the legislature and the judiciary took strong action to remedy the injustice to them. The laws were made stringent against the rapist. They even tilted in favour of the women, and rightly so.

6. At the time of amending the laws to protect the women, who had been victimised for so long, nobody could have imagined that the women could become so empowered that some of them would actually dare to abuse the very laws, meant for suppression of the crime of rape. Some women have caused unmitigated hardship to innocent persons, by falsely accusing them of having raped them. They have done this for a variety of reasons: to secure unfair advantage for personal gain, or for manipulating the alleged rapist to act according to their wishes.

7. It is therefore imperative that the same authorities take corrective steps to prevent abuse of a good law. These corrective steps would introduce such safeguards and penal clauses into both, the rape related laws and the procedural laws, to prevent innocent people from being imprisoned for long periods while the trial is in progress. We uphold the view that rape is one of the worst crimes and the actual rapist must be punished severely. At the same time we uphold the view that false accusation of rape is equally reprehensible and should be punished very severely. The reason is that the innocent man loses his position and status in society, his job, and faces total disruption of his family. There is always a nagging doubt, among the family members, about what really happened. He cannot do anything to remove this suspicion and so suffers in silence. By strict enforcement of the rape law, in its present form, grave injustice to the innocent victims (the accused) often takes place. Abuse of the rape related laws is also a heinous crime. Steps need to be taken to prevent misuse of the law. Clauses need to be inserted in the law to mete out deterrent punishment against the complainant who makes a false complaint. There needs to be adequate compensation to the victim (innocent accused) provided for in the Act and the Indian Penal Code through legislative action.

Some of the reasons, for taking up this topic, are:

(a) During the past 3 years the field-workers of AIDS Awareness Group¹, have come across a number of instances where false or unjust accusations of rape were levelled against some under-trial prisoners. Such accusations, given the nature of the law, and changes made recently, led to prolonged and protracted pre-trial detention of the under-trials and caused grave hardship to their families. Even being acquitted cannot compensate, the innocent, accused for the defamation of character, loss of job, status and reputation. After repeated interactions with under-trial prisoners, including examination of their case documents and

1 The AIDS Awareness Group is a registered voluntary organisation. The objectives of the Organisation include research and advocacy work on social injustice. The staff and volunteers including advocates of the Organisation visit Tihar Jail, Delhi regularly to provide free legal aid, AIDS awareness information and communication skills to the inmates, the Jail officials and staff. The Organisation is also assisting in drug rehabilitation programme that is conducted amongst the inmates.

subsequent developments in the courts in their criminal cases, AAG's staff felt that it was essential to review the working of the rape related laws through the cases in hand. In many of the cases the accused were discharged at the stage of framing charges. These under-trials spent a minimum of a year or two in jail, before they were set at liberty. They lost their employment and earned a very unsavoury reputation in society, and suffered defamation of their character. Hence the ultimate Court verdict of not guilty did not compensate them for their loss of liberty and position in society, prospects of marriage and job.

(b) In many cases the prosecutrix, or the so-called "victim", resorted to bargaining with the alleged accused, before the crucial stage of evidence. The manner and mode of bargaining carried out by the prosecutrix left no doubt as to what had actually transpired. The motive was clear _ to make a fast buck and when the men refused to succumb to blackmail, she filed a criminal complaint of rape. The police lodged an FIR and the accused were placed in judicial custody. The Court proceedings, obviously, could not have reflected the blackmail factor of such bargaining.

The case, which was closely followed by AAG, is - BPS/OR.C.P. (F.I.R.
No. 564/99 Police Station-Hauz Khas) - The accused and his two accomplices hired a call girl. After the work of the girl was over, she was paid the price that was fixed by them before. The girl tried to make easy money by blackmailing and threatening them that unless her demand for a large sum of money (Rupees fifty thousand per person) was met, she would lodge a complaint of rape. The three persons refused to give in to blackmail. So she filed a false complaint in the police station at Hauz-Khas. The three accused were arrested and placed in judicial custody. She again approached them in the jail and started negotiating with the accused. At first she demanded Rs 50,000 per head in exchange for withdrawing her complaint. Finally an agreement was reached in front of counsels from both sides that the three of them would pay Rs 15,000.each to the girl. Both parties then went for an out of court settlement.

(c) With the current trend of making laws and procedures more stringent, it has become virtually impossible to obtain bail for such under trials. At present there appears to be no remedy under the law to stop this unwarranted trend.

(d) These disturbing aspects of rape-related laws have not received the attention
they deserve. During the past two decades, the development of the law relating to rape has resulted in causing grave difficulty to an innocent accused. The accused is imprisoned merely on the basis of a complaint by a woman, as rape is a cognisable, non-bailable offence. The innocent accused (victims), have to establish / prove their innocence, before their detention in jail can end. This may and does take years.

8. Some of the assertions made above, would be substantiated during the following general observations about criminal investigation, inquiry and trial relating to rape and other connected offences.

9. The Supreme Court substantiated the above assertions in a judgement by a contrast comparison of Indian conditions with Western conditions Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat (Annexure 8). In the Western World it is rare that the police would recommend prosecution without adequate investigation or evidence. Unfortunately, this cannot be said of our own investigating agencies. Almost all of the eight reasons given in the judgement as to why a false accusation of rape may be levelled by a woman in the Western World can be found to exist in India also. This is shown by the cases discussed and reported below. In the West, if a case of rape is found to be false, on prosecution, it can be presumed that
serious deterrent consequences would follow against the person making such an accusation. It is correct that this pronouncement by the Supreme Court was in
the setting of an observation that there is a rise in crime against women in India. But rape, is not the only offence that can be seen as causing a rise in the statistical compilation of crimes.

10. Ideally, criminal laws, and their accompanying procedures, were meant to punish those who were guilty, at the same time ensuring that innocents did not suffer.

11. However, today's guiding philosophy, while dealing with rape cases, is that, "Indian women will not lie in this matter". Hence, with the aim of reducing the crime of rape, the principle, that innocents must not be punished (as described in the above paragraph), is often forgotten or sidelined, since the Supreme Court judges are of the view that, "Indian women will not lie in this matter".

How women became powerful

12. After independence more and more women were given the opportunity to get educated. On getting emancipated, they started thinking about their rights. They started to compare their rights with those of the men. They came to realize that men had been dominating the women for centuries. Women were given no rights to property. There were other inequalities also.

13. In the post independence period, the women started to consolidate their strength, and started very active pressure groups. They started to fight for political, social, and legal rights and equality with men.

14. By the Criminal Law Amendment Act, 1983, Sec. 375 was modified and the word `rape' was substituted by the words "sexual offences".

Another important modification is the explanation part added to sec. 375, which says, "Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." (For details please see Annexure 2)

15. These changes have given a certain amount of power to the women. It has tempted some of them to misuse the law, either for money, or for social status, or to satisfy their desire for vengeance.

16. Like in the case of N. B. v/s State of Orissa _ where Supreme Court had given a verdict that the rape victim should be given an appropriate amount of compensation (Rs. 10 Lakhs in her case).

17. Similarly in Vishaka case (Vishaka Vs. The State of Rajasthan, August 1997) [AIR 1997 Supreme Court 3011] the court pointed out a few guidelines about what amounts to sexual harassment in the work place.

18. All these judgments, and the section itself, have given the women, especially the urban women, an opportunity to abuse the amended rape law, if they want to do so. Any public protest or media publicity puts pressure, on the police, to conduct the investigation, speedily. Whether or not, there will be a conviction will depend upon the way the police investigate the matter. Once the investigations are completed, and the charge sheet is filed, the fate of the case is more or less sealed. Therefore any interventions regarding investigations have to be done before the charge sheet is filed and at this level the evidence is often tampered.

19. These laws are grossly abused because it empowers the women immensely. The Indian Express of 27 March 2001 quotes an Additional Sessions Judge, Shri BS Mathur, " The legislation should devise some mechanism to ensure against misuse and abuse." He further stated, "The misuse of Section 376 IPC has become rampant for ulterior motives and for illegal gains or for compelling some one to come to (accept) the unreasonable terms (demands made by the prosecutrix).

Note: The words in brackets are added by the writer

20. The Centre for Feminist Legal Research has proposed certain amendments to be introduced in Sections 161, 164, (Statements made before the I.O. and the magistrate respectively) 53 (medical examination of the accused at the request of the police officer), 54 (Medical examination of the arrested person by the medical practitioner at the request of the arrested person) of Cr.P.C., and Sections 114A, (presumption that the rape victim is telling the truth) 146 (questions lawful in cross-examination), 155 (Impeaching the credit of the witness), of Indian Evidence Act. Apart from these suggestions they are further proposing that before Section 166 a new section should be included. The Centre has demanded that all the offences relating to sexual harassment of women should be listed under one section of sexual offence (Section 354, 375, 376 and 509 of IPC) and that too before section 166 CrPC. The most important suggestion they asked for was that child rape should be inserted in the section related to sexual offences.

21. We uphold the view that any injustice, whether to women or to men is inhuman. We are depriving him/her of her/his basic fundamental right and/or birthright. "Power corrupts, and absolute power corrupts absolutely." The very power given to women for their defence is now being abused, or misused by some women. The learned judges in the Supreme Court gave this power to the women because they felt that women, who were raped, were so traumatised by the horrible experience that they were killed mentally. This is possibly true of most of the women who are actually raped. However there are cases where the woman is not raped, but cries "RAPE", for a variety of reasons. Since Rape is a cognizable and non-bailable offence, many innocent people who are charged u/s 376 (Rape) get arrested and put in judicial custody and languish in jail for years, before their innocence can be established. The

State is violating the human rights of all persons who are charged falsely and placed in judicial custody without preliminary investigations about their guilt or innocence. This is a breach of his human /fundamental rights. In the normal course the statement given by the accused is held against him. But according to Article 20, Clause 3, of the Indian Constitution, "No person accused of any offence shall be compelled to be a witness against himself" the corresponding provision is article 11 Clause 2 of the Universal Declaration of Human Rights. Basically all the confessions made by the accused in the police station are made, either under duress or under third degree.

22. The law regarding Rape is grossly misused for different reasons. For example, in a complaint of abduction or kidnapping, i.e. U/s 363 and 366, the Investigation officer also includes Sec. 376 IPC, (even when rape has not been mentioned in the complaint) to make the offence cognizable and non-bailable. He sometimes persuades the complainants to add the complaint for rape also so that the accused is put in judicial custody. The accused is arrested then and there. He is not examined during the investigation. This state continues till the judgement is passed. If the accused is innocent it becomes a gross violation of his human and fundamental rights as he is wrongly confined in judicial custody. Before making an arrest, there is no attempt to determine whether the person is innocent or guilty. Thus when a woman cries Rape, a man or men named by her, in her complaint, is/are arrested.

23. Although every rape is the criminal violation of the woman - physically and mentally. To protect the women from these atrocities, the Government has been introducing certain amendments to Section 376. This section has existed since 1860 when the IPC came into force. In 1983 an amendment was made to this law. (Please see Annexures 2 and 3 for further details). The Criminal Code lays down procedures to balance the scale so that there is no abuse of power or miscarriage of justice in a criminal trial. During our work in the jail, while providing free legal aid to the disadvantaged prisoners, we came across several cases where we felt that there were some cases where miscarriage of justice was taking place. Our research examines the various kinds of injustice meted out to the accused. In the succeeding pages, we have described some of the ways, the laws are being misapplied and abused.

The Major Loopholes responsible for mis-use of Law

* Age

22. Clause 6 of Section 375 IPC states that if a man and woman consent to have sexual intercourse, and if the woman is below 16 years of age, then the offence of rape is made out because a girl of 16 or below the age of 16 yrs. is not considered mature enough to understand the implications of this act. Falsifying the age of the girl is one major way that the law can be manipulated to convict a person, wrongly under the charge of rape. Therefore, the determination of correct age decides the result in several cases.

The courts determine the age of the prosecutrix on the following bases: -

1 M.C.D birth certificate

2. School leaving certificate

3. Ossification test

1. M.C.D. Certificate

This feature needs to be considered because it often shows the real age of the (victim), prosecutrix. Sometimes the parents get tempted into making a false age certificate to ease the problems faced during admission of their children. These false certificates are grossly misused in rape cases, because in reality the age of the prosecutrix might be 18 years; however due to the false declaration of the age of the prosecutrix, the accused is not able to prove his innocence "M.C. Prasannan Vs State Of West Bengal, 1999 Cr.L.J. 998. (Calcutta HC)

As the Supreme Court observed in the case of Brij Mohan Singh Vs Priya Brat Narain Singh (AIR 1965 SC 285)

"In actual life it often happens that persons give false age of the boy/girl at the time of his / her admission to a school so that in later life he/she would have an advantage while seeking public services for which a minimum age for eligibility is often prescribed. The court cannot ignore this fact while assessing the value of the entry and it
would be improper for the court to base any conclusion on the basis of the entry,
when it is alleged that the entry was made upon false information supplied with
the above motive. So, quite often, the documentary evidence regarding the age is not genuine."

2. School leaving certificate

In urban areas, mostly, the school-leaving certificate is a genuine document but in the rural areas the school leaving certificate as well as the Admission Register are not genuine because the parents, while admitting a candidate, are often ignorant about the age of their wards. Thus, a false age may be submitted, innocently or deliberately, to an educational institution. Often, a lower age is given to the schools, in order to gain an advantage when seeking public service through competitive exams later on in life. Similar discrepancies may exist in municipal records. Many times, the documentary evidence, regarding the age is not genuine. So prosecution may claim whatever age they like, e.g. in the case of "Kabir Mali Vs State of Bihar Crl Appeal No.79 of 1990 (R)"

"Appellant was known to her before and she voluntarily went with the accused and they are married. They had sexual intercourse also.

"In this particular case the school register came in for rescue of the appellant _ the register showed that the prosecutrix was about 19 years at the time of occurrence. Doctor's report indicates the age of victim girl as 17 years (but could not be relied upon as the Dr. was not examined)".

3. Ossification Test

When the prosecution fails to prove it's case on the basis of MCD Birth Certificate
and the school-leaving certificate, then only the prosecution can rely on the
ossification test of the prosecutrix. In the ossification tests, the Doctor examines
the teeth, development of the joints of bones of the prosecutrix and then opines
her age.

Moola Ram Vs State of Rajasthan 2000 Crl. L.J.2506

This is a case of child rape, but the ossification test showed the prosecutrix to be 12 years old. However, the parents of the girl stated that the girl was 16 years of age at the time of the crime. The girl became hostile; she retracted all the statements, she had made, earlier, to the police. As a result the accused was acquitted.

Peeru Vs State of Madhya Pradesh (1996) 2 Crimes 42

The age of the prosecutrix was about 14 years at the time of the incident, there can always be a margin of two to three years on either side. The judgement in the case of "Jaya Mala Vs Home Secy Govt of J&K AIR 1982 SC 1297" was cited where The Supreme Court had observed that one should take judicial notice of the fact that the margin of error in the determination of the age by radiological examination was two years on either side.

Based on this judgement, the court observed that the prosecutrix was a consenting
party. This observation was based on the fact that she had travelled along with the
accused, willingly, to two different villages and spent a fair amount of time in the public places, without making any hue and cry for help. This showed that the girl was a consenting party.

This benefited the accused. The other circumstances pointed out that there was a voluntary consent. In "S. Varadarajan's" case, the judge of the Madras (Chennai) court, maintained that now a days a girl is very much aware of what she is doing, and this should be kept in mind while pronouncing a verdict."

The ossification test can be a major help to the accused when he does not have any other evidence to prove his innocence. The age factor is a major loophole. It is continuously used by the parents for manipulating the accused in to submitting to their demands for money, or some other favour. It can also be used to take revenge for marrying their daughter against their wishes.

* Corroboration

There are cases where statement of the prosecutrix recorded in the FIR often differs from what she later states in the court (Statements u/s 161 & 164 Cr.P.C.)

Fota & Damra vs. State Of Rajasthan 1999 Cr.L.J.1677 (Raj.HC)

Criminal appeal no _ 239 of 1998.

In this case, it was accepted by the court that the prosecutrix was not a reliable witness. Her statement was not corroborated by medical evidence as: not a single injury was found on her person though she had claimed that she had been injured.

Suresh N. Bhusare & Others vs. State Of Maharashtra 1998 (3)
Crimes 187 (SC).

"The accused was charged for rape. The prosecutrix stated that the accused had dragged her inside his shop, and then raped her. No injury was found on her person. The victim's evidence was inconsistent with the FIR lodged by her on the material aspect. In this case it was also stated by the prosecutrix that she was at the advance stage of pregnancy and because of the rape, she had aborted on the third day. Medical Evidence belied evidence. It was held that because of infirmities in evidence of the victim implicit faith could not have been placed upon her evidence."

In Bharwada Bhodinbhai Hirjibhai vs. State of Gujarat (AIR 1983 SC 753) Supreme Court held that "corroboration is not essential for conviction of rape"

It has been stated by the apex court in this case " in India it is rare for a woman to make false accusation of rape because in reporting the crime, she has to suffer several types of embarrassment and humiliation especially from society, during cross examinations, medical examination and also because of the publicity given to the case by the newspapers".

Sheikh Zakir vs. State (Air 1983 sc 911) It was held that "In the case of a grown up and married woman, allegedly raped, corroboration must be insisted upon".

As a rule of prudence the court must normally seek some corroboration of her testimony so as to justify that she is telling the truth, and the accused is not falsely implicated. This judgement of the Supreme Court contradicts the judgement quoted above.

State of Orissa vs. Dhirendra Naik1986(2) Crimes 151 (SC).

It was held by the Orissa H.C. that "there is no reason to insist on corroboration of the victim's evidence as a general rule, except from the medical evidence, where having regard for the circumstances of the case, medical evidence may be for the coming corroboration may, however be insisted upon when a victim having attained majority is found in a compromising position and there is a likelihood of her having levelled an accusation of rape on account of the instinct of self-preservation or when the probabilities factor is found to be out of tune".

Vasant Sukhdeo Sandanshiv & Ors.vs. Maharashtra & Another's 1996 (3) Crimes 348 (HC).

"Rule of prudence requires that in every case of rape of married woman the advisability of corroboration should be present in the mind of the Judge and must be indicated in the judgment. The Rule of prudence requires that the advisability of corroboration should be present in the mind of Judge, and must be indicated in the judgment."

It may be seen that the new Amendments made in the Cr.P.C., IPC and the Indian Evidence Act, have made women more powerful. Thus as a result of the inclusion of these provisions, many cases of false accusation are taking place. One cannot deny the fact that the
graph of false accusation is increasing sharply, and many innocent persons are being charged u/s 376.

* Penetration

In the 1983 amendment act, the word penetration was inserted in s.376 of IPC. It is now held that even the slightest penetration in the vagina amounts to the offence of rape. It is very difficult to prove, the penetration in the cases of married women but in the cases of child rape it is evident whether the case is fabricated or not. In cases of child rape, the injury is visible. According to the law, even a partial penetration, leading to the rupture of the hymen, is sufficient to constitute rape, even though there might not be deep penetration into the vaginal canal. From the mere fact that there was no dilation of the vaginal canal it cannot be assumed that the offence was not committed, when the injury to the hymen showed clearly that there was a penetration by the male organ. The prosecutrix and her family very rarely misuse this provision. However, in some child rape cases it is evident from this procedure of medico legal factor that the said section is misused. Like in the cases of:

Sahajan Khan Vs State of Orissa 1994(2) crimes 203 at p.204, 205 (Orissa)

When it is an alleged rape, with full penetration by a well-developed male organ into the vaginal passage of a girl, of six years of age. According to the doctor, it would be difficult to admit even the tip of the finger. In case there is any penetration, there would definitely be marks of injury on the penis of the person committing rape and also on the vagina of the prosecutrix. If there were no sign of injury on the penis of the accused, it would indicate that the accused is innocent of the alleged crime of rape.

Pawan Kumar Vs State of Haryana 1985(1) crimes 201 at p.203 (P&H) and Vipin Kr. Vs State of Haryana (1985)(1) Crimes 105 at pp.106, 107 (P&H)

The doctor in this particular case opined that the hymen of the prosecutrix was intact and her vagina admitted a tip of a finger with difficulty. There was no injury or mark of violence over the external genitals and thighs. Further, in her evidence she deposed that she caused injuries to the appellant's face and arms with her nails. The doctor, however, did not find any injury on the person of the appellant. It was held by the hon"ble court that the prosecutrix had concocted a story to implicate the appellant. He was acquitted. "Zahoor Ali Vs State of U.P.1990 (2) Cr.L.J.124 at p.127 (ALLAHABAD)".

* Rupture of Hymen

There are cases no doubt, in which it has been held that the rupture of the hymen is not a necessary result of rape, since it does not result from a mere partial penetration. The rupture is not necessary for rape. Legally, it is questioned whether there could have been sufficient penetration of vulva, which was not near the surface, and the hymen remains intact. Pawan Kumar Vs State of Haryana 1985(i) crimes 201 at p.203 (P&H).

* Potency of the male

This is normally not considered. However, there are certain cases of misuse where the prosecutrix had fabricated the case against the accused. In the trial when the medical examination was conducted, it came to light that the person was impotent. Like in Gopala Bin Rama (1896) unreported Cr.C.865 _ This is only possible if the male organ had the power of erection that again, postulates that the woman was potent. (Ibid, at p.866) In Bombay it appears to have been laid down that potency of the accused must be proved in each case.

* Medical

In cases involving rape, or attempted rape, the medical examination of the prosecutrix as well as that of the accused is essential. It could provide evidence of rape, if the medical examination is conducted immediately. Prompt examination has ruled out the charges of rape in some cases.

Medical Jurisprudence and Toxicology of Dr. Modi is considered to be an authority on the subject. The following are some examples from his book:

"A 20 year old woman, alleged to be the victim of rape, was brought to Modi- a renowned medical jurist of his time- for examination. Marks of scratches on forearm and chest of the lady were found by Modi to have been stimulated with a pebble. These marks could be wiped of by rubbing them with wet cotton. The book describes from the Annual Report of the Chemical Examiner, Bengal, 1935, the case where an alleged victim's clothes were covered with several stains of blood of a bird. On the basis of a medical examination by a competent doctor in 1946, the police had to report the alleged case of rape as false. Dr. Modi also came across a false allegation of child rape and the creation of medical evidence to implicate his neighbour by the father because of enmity." Such cases are difficult to detect from the reported judgments. In a few of the cases, reported recently, it was found that the prosecutrix had claimed falsely that she had been injured during the alleged rape. During the trial it was brought out clearly that her statement was false.

In another case, decided by the Supreme Court, where the prosecutrix had stated that she was in an advanced stage of pregnancy and that, as a result of the rape, she had aborted three days later. This was discovered to be false from the medical evidence. If there is a delay in medical examination, the evidence of rape gets wiped out. Frequently, the signs of rape are not detectable after 24 hours. In rural areas, this is almost always the case before the complaint is lodged, and the victim is taken for medical examination at a government hospital.

During the medical examination, the rape victim and the alleged accused are both treated very insensitively. The rape victim is frequently treated very insensitively and roughly by the police officials or subsequently during court proceedings.

We had intended to present more examples of abuse of rape law from trial court records, as in our opinion most of the cases where unjustified claims of rape are made, can be found in trial court records, which have ended in acquittals before the trial court itself. AAG had

sought permission to inspect Sessions court records from the Honourable High Court of Delhi. The permission was not granted. Having failed to get such permission, we had to confine ourselves to citing cases from judgements of High Courts and the Supreme Court. In addition we have cited cases handled by AAG.

Section 376 of the Penal Code is often invoked in cases of elopement. These are the cases where a girl decides to marry the boy against the parent's wishes. Some examples of such misuse have been given in the preceding pages of this Report. Many similar examples can be found from reported judgements but these are not the only cases where misuse takes place. There could be a variety of reasons for alleging rape. Some of the recent examples from the reported Judgements are given below.

Chintu alias Chintram vs. State of HP 1997 (4) Crimes 343

Pressure by the family, or the society, forced the girl to lodge a false case of rape.

Yunus Turab Shaikh Vs State of Maharashtra 1993 (3) Crimes 444

The accused refused to marry the girl after an affair, which included sexual relations with her. The girl filed a case of rape in retaliation.

Mujia alias Mauji lal & others vs. State of M.P. 1998 (2) Crimes 418

The man had won the panchayat election. His opponent made his wife file a false case of rape in retaliation. The Honourable High Court acquitted the accused holding that "rape may have been alleged" falsely.

Sita Ram @ Sushant Kumar Vs State of Himachal Pradesh 1998
(3) Crimes 345

It was held that the allegation of rape was made against the accused after due deliberation and consultation as a counter blast to cases registered against the prosecutrix on the basis of report of the accused Raj Kumar.

Madan Lal Vs State of MP 1997 (3) Crimes 210

When the appellant, an employee of Railway Department, disclosed to the prosecutrix that he was going to Allahabad for training, the prosecutrix expressed her desire to accompany him. On 8 January 1995 at about 6.30 p.m. the prosecutrix left her house on the excuse of easing herself and taking a suitcase secretly, left her house. Her mother lodged a report with the police on the basis of which a formal F.I.R. under Sections 363/366 IPC was registered. Section 376 IPC was added later. As per the ossification test, her age was determined to be between 15 _1/2 and 16-1/2 years. The accused was acquitted based on the precedence established in the case of S. Varadarajan.

Tapan Ghosh Vs State 1987 (3) Crimes 108

The accused started a signature campaign asking the prosecutrix and her family to vacate the premises in a railway quarter, where they were staying unauthorisedly. The prosecutrix

filed a rape case against the accused and he was convicted. In the appeal in the High Court the defence lawyer contended that this was the reason for the charge of rape against the accused. A division bench of the Calcutta High Court, while acquitting the accused on his appeal against the conviction, observed, "no finding can be arrived at on the basis of an isolated fact or proposition regarding a particular course of conduct or behaviour pattern."

The laws regarding Rape have been modified and made more stringent and comprehensive. The Government of India amended the law on rape for ensuring that the women, who were victims of rape, got justice and their welfare was looked after. The rigid nature of these modified Rape related laws, made the laws more susceptible to misuse. These amendments to the law lay down severe punishment to the person/s who commit the crime. Since the onus of proving innocence now lies with the accused, the women and their respective family members get a major advantage over the former; there is a greater tendency to misuse the new provisions in the law.

The team from AAG, which visits the jails, meets the prisoners in need of help, provides free legal aid to the disadvantaged prisoners. In the course of taking up cases on behalf of the prisoners we came across many cases where it was evident that the laws on Rape were being misused. After an analysis of the cases we found that these laws were manipulated for the following reasons:

Reasons Responsible for Mis-Use of Law

1. The girl had consensual sex, but subsequently, claimed that she was raped, under parental pressure.

2. When she was caught red handed in a compromising position

3. When the girl got pregnant, but the boy refused to marry her.

4. When the girl eloped and married the boy of her choice against her parents' wishes. The parents coerced her into claiming she was raped, and filing a complaint in the police station. The parents did not approve of the boy because of differences in caste, creed, religion or status. They used the loopholes in the law to take revenge.

1. She had consensual sex, but subsequently, under pressure, claimed that she was raped.

Jindu Vs State of Punjab (1979) XXXI Punjab L.R.194, 195

The prosecutrix was taken to a room upstairs in the appellant's house. There, they had sexual intercourse. To save her reputation, she lodged a false case of rape,
against the appellant. But the appellant was acquitted on the ground of voluntarily consent.

* It was found that the door was not bolted from inside.

* The prosecutrix did not give any bites to the appellant and she did not push him aside, preventing him from committing sexual intercourse. The sexual inter course took place with the consent of the prosecutrix.

Bethala Samaya Vs State of A.P.1996 (3) Crimes 221 (HC).

The appellant accused, accosted the victim (a married woman), in a garden at about 2.00 p.m. on 23 Aug 1989. He dragged her to a place under a mango tree and raped her in the presence of the victim's cousin sister, a child aged about 8 years. The accused was acquitted because the court held that this was a case of voluntary consent:

(a) The circumstances that lent support to the suggestion by the defence that either the prosecutrix, knew the appellant from before and had consented to the act, or that the act had not taken place;

(b) If the accused were a stranger to the victim, it would not be possible for her to take her father in law to meet him and confront him with the offence.

It was observed in the judgment that "Evidence of rape victims should normally be believed, but if there is an inherent contradiction in the evidence and credibility of the identification of accused was in question, conviction could not be sustained".

Surinder Kumar Vs State 1996 (3) Crimes 367 (Delhi HC)

Pushpa disclosed in her statement that she had visited the market, along with Surinder Kumar. The appellant, (Surinder Kumar) had purchased some gifts for her. She had accepted the gifts. It was therefore difficult to believe that Pushpa was being detained against her wishes at Ghaziabad. Rather, her statement, read as a whole, leaves no doubt that force or compulsion was not applied. Pushpa was not a minor and thus her consenting behaviour assumed importance. The accused was acquitted.

Madan Lal Vs The State of Punjab 1997 (3) Crimes 210

On 15 January 1995 Madan Lal of Railway Department told the prosecutrix that he was going, to Allahabad for training. The prosecutrix expressed her desire to accompany him. On 8 Jan 1995, at about 6.30 p.m., the prosecutrix left her house giving the excuse that she was going out to ease herself. She secretly took out her suitcase. When she did not return, her mother, Surinder Kaur, lodged a report with the police on 14 Jan 1995 on the basis of which a formal F.I.R .was lodged u/s 363/366 IPC. During the process of trial, Section 376 IPC also added. The accused was acquitted u/s 376 as the evidence of prosecutrix revealed that she had left her house of her own without
any invitation from the appellant. The Hon"ble judge relied on the precedence
set in the case of S. Vardarajan, "where the minor left her father's protection voluntarily, honouring, and having the capacity to know the full impact of what she was doing. She joined Madan Lal, the accused. The accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by
the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian".

The fact of the prosecutrix accompanying the appellant and living with him in one room was enough to infer that she was a consenting party to the sexual intercourse.

Chinta alias Chint Ram Vs State of H.P. 1997 (4) Crimes 343

The prosecutrix went to see the Dushera festival along with her friend. After attending the festival, while returning, she entered the nearby forest to ease herself. According to her statement, at that time, the appellant forcibly dragged her to a nearby cave. He then had sexual intercourse with her twice in the night. He further detained her for almost a month, taking her to different places, sometime at his aunt's place. The accused was acquitted on the following grounds:

The circumstances show that she was a consenting party. This fact, coupled with other circumstances which were on the record, it was clear that the prosecutrix was a consenting party. She had not only accompanied him from place to place but she had had sexual intercourse with mutual consent.

2. To save her reputation when caught red handed,

The Rape law is most commonly misused when the boy and the girl, are found in a compromising position by a third party (which may be her mother or relative, or anyone known to the girl). The girls often allege that they were raped in order to protect their reputation. The following cases would illustrate this observation. The following cases
are taken from the recorded judgments from different High Courts and also the
Supreme Court.

Arun kumar Vs State of U.P. 1992 UP G R 190 at 191

It was alleged by Meena Kumari that she had been raped in the waiting rooms of Lucknow and Delhi. Meena Kumari, on the prosecution's own showing, had returned back within 6-days. The Medical Officer had not found any injury on the private or any part of Meena Kumari's body. In the medical report she was shown to have been used to sexual intercourse. If the accused had indulged in sexual intercourse with Meena Kumari against her wishes, during the six days she was in the waiting rooms, the Medical Officer would have found evidence of it on her person. The defence counsel's argument that it was not possible for the accused to have sexual intercourse in the public waiting rooms of Lucknow and Delhi carried weight. The rape alleged by the prosecution between 15th July 1984 and 21st July 1984, could not be established, if the two at all indulged in sex, it must have been continuing with the consent of Meena Kumari. She was more than 17 years of age at the time of the alleged rape; it could not be held that her consent was immaterial. The accused was acquitted of the charge of rape under Section 376 of the Indian Penal Code.

Biram Soren Vs State of West Bengal. 1992 Calcutta Crl. 378
at pp 384, 385 (Cal)

There was an interesting football match. Most of the villager's were away to see the football match. Some of the girl's relatives residing in her house also went to see the match. Her parents had gone to the market. She was alone with the boy she was in love with. It gave them an opportunity to have sex, which they both wanted. So they had sex. She was afraid of her mother discovering that she had had sexual intercourse, so she alleged that she had been raped. A complaint was filed in the police station.

The fresh tear of hymen and the extensive laceration of the vagina were due to the fact that this was her first sexual intercourse. An absence of any other injury on any part of the prosecutrix gave a lie to her statement that there was a scuffle as a result of which the blouse, she was wearing, was torn. Non-disclosure of the incident of sexual intercourses and the name of the appellant at the earliest opportunity, even though she was found conscious and talking to her parents on the way to the hospital and the absence of any injury, such as nail marks on her breasts, or scratches and abrasions on her thighs, buttocks, back etc suggest consent.

The High Court was aware of the note of caution sounded by the apex court in the case of "State of Maharashtra Vs. Chandra Prakash". On the same basis, the court evaluated her evidence, the Calcutta High Court shuddered at the injuries sustained by the prosecutrix in her private parts and yet was constrained to hold that it was not a case of rape and acquitted the accused.

Sudharmay Nath alias Bachhu Vs State of W.B 1999 Cr.L.J. 4482 (Cal.HC)

The appellant was a private tutor of the prosecutrix, and secretly became physically close to her on assuring her that he would marry her. She indulged in a sexual relationship with the appellant. The girl became pregnant. When her pregnancy was running into the third month, the girl's pregnancy could no longer be kept a secret. On enquiry, she revealed the aforesaid facts. On medical examination it was discovered that she was 17 to 19 years old. It was held that it was not a case of rape, as there was consent. The girl had full knowledge of the nature and the implications of such an act. She was fully aware that the person (accused) concerned was not yet her husband, even, if he had proposed to marry her.

3. When the girl gets pregnant but the boy refuses to marry her.

If a girl gets pregnant as a result of a sexual relationship, to save her reputation either she herself, or her family allege that she was a victim of rape.

There are certain cases, where there is a sexual relationship between the accused and the prosecutrix. If the prosecutrix conceives and the accused refuses to marry her, the family members, as well as, the prosecutrix, rope him u/s 376, as this section gives ultimate power to the women over the man. This is quite evident in following cases.

M.C. Prasanan App. Vs State Respondent 1999 Cr.L.J. 998 (Cal.HC)

The prosecutrix was a student of the appellant. Consequently they became close to each other. They used to have sexual intercourse. The prosecutrix believing that he would marry her, continued her sexual relationship with the accused. Later the accused refused to marry the prosecutrix. As a result the family and the prosecutrix filed a case u/s 376. The case was filed 3 months after the alleged incident, when the pregnancy of the prosecutrix was visible. The girl was a minor and her consent cannot normally be accepted. Since neither definite corroboration, nor evidence, was available about the correct age of the girl, an acquittal was granted because there was consent.

Jayanti Rani Panda Vs State 1984 (Crl.L.J. 1535 Calcutta)

"Where a full-grown girl consents to the act of sexual intercourse on the promise of marriage and continues to indulge in such an activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact.

"This is a gross misuse of the Section 376 as it was not approved by the parents of the girl. In the particular situation of India the parents never digest that their daughter is having a sexual relationship or love affair with a boy of the girls choice so when they
come to know about the alleged alliance between the two, they force the girl to fabricate a case of Section 376. As according to this section the statement of the prosecutrix under Sections 161 and 164 of evidence act is enough for conviction of the accused, whether he is innocent or not."

A woman may have consented to have sex with some ulterior motives in her mind. It is quite often to blackmail, and to extort money. One cannot deny this fact that modernized, well educated women or women with loose morals are perfectly capable of crying rape falsely. Some times these women use the rape related laws to take revenge. This is evident in cases of women who have been seduced and later abandoned.

Mujia alias Mauji lal & others vs. State of M.P. 1998 2 Crimes 418

The man had won the Panchayat election. His opponent made his wife file a false case of rape in retaliation. The Honourable High Court acquitted the accused holding that "rape may have been alleged" falsely.

Tapan Ghosh Vs State 1987 3 Crimes 108

The accused started a signature campaign asking the prosecutrix and her family to vacate the premises in a railway quarter, where they were staying unauthorisedly. The prosecutrix filed a rape case against the accused and he was convicted. In the appeal in the High Court the defence lawyer contended that this was the reason for the charge of rape against the accused. A division bench of the Calcutta High Court, while acquitting the accused on his appeal against the conviction, observed, "no finding can be arrived at on the basis of an isolated fact or proposition regarding a particular course of conduct or behaviour pattern."

State Vs H s/o S (Handled by AAG) F.I.R. No.414/2000 u/s 376, 377, 382, 452, 506 IPC

4. When the girl elopes and marries the boy of her choice against her parents' wishes

The parents coerce her into claiming she was raped, and filing a complaint in the police station. The parents do not approve of the boy because of differences in caste, creed and religion or status. They use the loopholes in the law to take revenge.

Oroos Fatima alias Nisha and Another Vs Senior Superintendent Of Police 1992 (3)
Crimes 97 (SC).

In this case a Muslim girl married to a Jain boy. The girl's family objected to this
and they alleged rape. The boy was acquitted on the grounds that the girl was a
consenting party.

State Vs A R s/o I (Handled by AAG) F.I.R. No.323/99 u/s 366, 376, 34 IPC P.S. Pahar Ganj

Please see page 23, first para for details.

State Vs. V S/O A. Singh.(Handled by AAG) F.I.R NO. 8/98 u/s 363,366, 376 IPC P.S. Nangloi

A Muslim girl aged about 20 years and a Hindu boy decided to get married in spite of the objection from the girl's father. The father, it appears, used to maltreat the girl. A year after registration of FIR by the father, the girl went back to meet him. He promptly complained to the police at the police station at Nangloi. He coerced his daughter into making a false complaint of rape On the basis of investigations and the same statement made by her under Section 164 before a Magistrate, the prosecution laid charges of Kidnapping (363), Kidnapping with intention to marry (366) and rape (376). The ossification test of the prosecutrix showed her age to be 20 years. After the charge
sheet was filed for prosecution and the case was committed to the court of sessions, charges under relevant Sections of the Penal Code were framed against the accused. The marriage between the couple was performed under civil law and the prosecutrix was in communication with her accused husband during his incarceration in jail. After almost one year, the trial court acquitted the accused holding that "the prosecution has miserably failed to bring home guilt of the accused". The accused had to remain in jail without
bail during this time. His wife had to fend for herself alone till her Husband was let off from the Case. The couple is facing difficult times to adjust in the society because of
the stigma attached due to the husband's yearlong stay in jail.

Cases of Alleged Rape taken up by AAG

Our findings from the cases from the jails, handled by us support the view that when there is misuse of the rape related laws, the reasons are usually the same as mentioned in the previous paragraphs

Of the cases handled by AAG, some of the accused have been bailed out. Some have been acquitted. In some cases, trials are still in progress. On examining the details of these cases, (Challan, statements made before the police and later before the Judge etc. and the evidence of the witnesses), it becomes evident that the accused were innocent. The anecdotal accounts of the cases are given below:

1. State Vs. R S/O R. FIR No. 582/97 u/s 363/366/376 IPC Police Stn.
Pahar Ganj. Judicial Custody-17th October 1997

Ram Kewal eloped with Sudha to his native village in Uttar Pradesh. There, the
prosecutrix and the accused got married in the Court in front of the Registrar. On

11th September 1997; the father of the girl lodged a report that the accused kidnapped his daughter Sudha. In her statement to the IO, The girl stated that the accused had kidnapped her, and had sexual intercourse with her. In her statement before the Magistrate u/s 164 Cr.P.C., she retracted her statement made before the police, and stated that she had gone willingly with the accused, with the intention of marrying him. The ossification test showed her age between 16-18 years, the court considered the age of the prosecutrix as 18 years and acquitted the accused.

2. State Vs R. Singh, F.I.R No.52/2000, U/S 363/376 IPC, Police Station _ Narela, Judicial Custody-19th January 1997

On 22nd May 2000, the accused was arrested from village Raipur, District Badanyun, U.P.

As alleged by the prosecution, the father of the prosecutrix, Devenath lodged a missing person's report with the police. Ramshila was working in Samarth Sanstha, Shahbad, Delhi. He further stated that one madam Rajesh might have enticed and taken her somewhere. The prosecutrix was recovered from the accused's house at Badanyun. When the prosecutrix was medically examined she stated her age was 19 years. According to
the Doctor's opinion the prosecutrix was in the habit of having sexual intercourse
and the hymen had been torn, long ago. In the statement of the prosecutrix made
u/s 164 of Cr.P.C. in front of the MM she specifically stated that she was in love
with the accused and wanted to marry him. That was why she went with him willingly and that the accused was innocent.

The statement made u/s 164 Cr.P.C. and the MLC report of the prosecutrix proves that she was in love with the accused and she wanted to marry him and had eloped with him willingly. This proves that she was a consenting party. It was evident from the facts of the case that the father of the girl falsely implicated the accused in this case.

3. State vs. V., FIR No. 70/2000 P.S. Anand Parbat U/S 363/376. IPC. Judicial Custody-25th July 2000

On 17th March 2000 the complainant, the father of the prosecutrix lodged an FIR stating that his daughter aged about 16 yrs. was missing since 16th March 2000. The complainant suspected that the accused was responsible for the disappearance of his daughter. On 25th July 2000 the prosecutrix was recovered and the accused was arrested. In her statement u/s 164 of the Cr.P.C the prosecutrix stated that she knew the accused for the last four years and she was in love with him. She further stated that when she told her family about her relationship with the accused and that she wanted to marry him, her mother got agitated and refused to give approval for this marriage. The prosecutrix told her mother that she could not live without the accused and one day she would run away from the house. On 16th March 2000, she followed the accused but the accused refused to take her along with him and suggested her to go back to her house. She refused this and said that she would commit suicide. He then took the prosecutrix to his home, where his brother also stated the same thing to her but she refused to go back to her family. They got married in the court and at the time of the arrest, she was expecting their first baby. The police just ignored the statement she had made and arrested Vijay u/s 376/363.

4. State vs. R. Kumar, FIR. No 401/2000 P.S. Adarsh Nagar. U/S. 363/376 IPC. in Judicial Custody

On 7th August 2000, the complainant, the father of the prosecutrix, lodged a missing report that his daughter aged about 17 years was missing since 3rd August 2000. On the 15th of August 2000 the FIR was registered stating that the accused had kidnapped the girl. On 19th August 2000 the prosecutrix was recovered and the accused was arrested. The statement of the prosecutrix U/S 164 of the Cr.P.C stated clearly that she had gone with the accused on her own, and that she had married him. The ossification test of the prosecutrix showed that the prosecutrix age was between
18-years to 20-years. The accused was discharged from the court of Additional Session Judge on 20th February 2001.

5. State Vs P. P., F.I.R No.333/1999, U/S 363/366/376 IPC, Police Station _ Sarai Rohilla Judicial Custody-10th May 2000

On 13th August 1999 the prosecutrix, aged about 17 years, accompanied the accused
to Ghaziabad and from there to Baroni.

In her statement u/s 161 of Cr.P.C. in the presence of the Investigating Officer, she alleged that she was allured by the accused on the pretext of marriage and raped by him at Baroni. In her statement u/s 164 of Cr.P.C., in the presence of the Metropolitan Magistrate, she stated that she left the house on her own and accompanied the
accused so that they could get married. However, this did not happen because the boy was arrested before they could get married. Considering her age and her statement
in the court the learned session Judge acquitted the accused after a protracted trial of 2 years.

6. State vs. D. S., F.I.R. No. 698/1997, U/S 363/366/376 IPC, Police Station _ Rajouri Garden, Judicial Custody-7th September-15th May 2001

On 6th Aug. 1997,a DD No. 20 a missing person's report about Ms. Anita Chauhan aged about 16 yrs was registered in the Police Station of Rajouri Garden, by her mother Mrs. Parveen Chauhan. On 7th Sept. 1997, the girl was recovered from Janak Puri. She made her statement U/S 161 and 164 of the Cr.P.C. that she was raped. Between 5th August and 7th Sep. 1997 the girl went to various places by public transport with the accused, and she had sex with him. As per MLC Report there was no external injury on the body of the prosecutrix. The hymen was torn much earlier, and the vagina admitted two fingers easily. The ossification test of the prosecutrix could not be performed because the prosecutrix was pregnant. After about 3 years 8 months
of protracted trial the accused was acquitted and released from the custody on 15th May 2001.

During this period of the trial, not a single prosecution witness, including the prosecutrix, ever came to the witness box, despite several warrants issued to them through the concerned police station.

7. State Vs A. R., F.I.R No.323/99, U/S 366/376/34 IPC, Police Station - Paharganj

On 8th August 1999, the accused was arrested from Rajdhani Palace Hotel at Paharganj. As per the prosecution the accused kidnapped the girl and kept her in confinement in the Hotel and raped her there. In her statement the prosecutrix had stated that
she was in love with the accused and had lodged the case against the petitioner, due to the arrogant nature of the accused. She wanted to marry the petitioner but he
had refused to marry her. So she had filed an F.I.R alleging Rape. In her affidavit
she stated that whatever was stated by her in the F.I.R was false. She added that
she was making the affidavit without any pressure and coercion from anybody. The parents of the prosecutrix have also given their free consent for her marriage with
the accused (petitioner). The prosecutrix did not want to continue the case against the accused any further.

8. State vs. H., F.I.R.No. 414/2000 P.S.-Samai Pur Badli U/S 452/376/377/
382/506. Court of Urmila Rani. Judicial Custody- 3rd July 2000

On 1st July 2000,the prosecutrix lodged an FIR against the accused that at about 3.30 the accused, who was her neighbour, came and knocked at the door of her house. At that time, the prosecutrix was sleeping with her children. She opened the door and the accused took her to another room of her house there he undressed her and started having sex with her. While leaving the house the accused took Rs.18000/- and a gold chain along with him, and threatened the prosecutrix that if she disclosed any thing regarding the incident, then he will kill her. After her statement, the prosecutrix was medically examined. The accused was arrested. On 8th May 2001 the prosecutrix was examined in the court where she turned hostile. She was ready to give the correct information on condition that the accused would marry her after getting bail. The prosecutrix had already taken an affidavit from the accused, which stated that if the accused did not marry her then the accused would have to pay Rs. 2 Lakhs to her as compensation. The Defence counsel alleged that the prosecutrix was having an extra marital affair with
the accused and that she had visited many places outside Delhi with the accused, for 12-15 days. The accused had, in his possession, about 50 Love letters written by the prosecutrix to him.

After the accused was released, he has neither met the prosecutrix, nor fulfilled any of the conditions that were stated in the affidavit. The prosecutrix is now threatening
the family members of the accused. She has also approached the police for registering
an FIR under section 420 IPC against the accused. However the police have so far
declined to do so.

9. State vs. G. S. S/o B. M., F.I.R.No.175/98. U/S363/376 IPC Police Station-Vikas Puri, Judicial Custody- 20th March 1998

On 4th March 98, the accused eloped with a girl named Anju, aged about 15 years. The prosecutrix went to Sita Puri along with the accused. From Sita Puri, she went to Ghaziabad in a bus. She reached Ghaziabad at about 5 to 6 p.m. It was alleged in the FIR that she was there for about 10-12 days in a room where the accused had sexual intercourse with

her. The prosecution did not place any Birth Certificate of the prosecutrix issued by MCD or by any other authority. No ossification test report has been placed on record, although the doctor asked for the same. The journey of the prosecutrix along with the accused to different public places and the silence on the part of the prosecutrix without, any evidence of threat, or coercion proves the consent of the prosecutrix for the sexual intercourse. The trial is still in progress.

If the court considers the age of the prosecutrix as less than 16 yrs. on the basis of an oral statement, then the accused will be convicted. However if the court will consider the age of the prosecutrix more than 16-yrs, the accused will be acquitted. The fate of the accused depends on the consideration of facts by the Court.

10. State Vs J. S/o B. D., F.I.R No.579/96, U/S 376/34 IPC, Police Station _ Samaipur Badly, Court Urmila Rani, TH Judicial Custody- 2nd August 1996

The prosecution case has alleged that on the night of 30th, 31st July 1996 at about 1 am., the accused, Jagdish along with Mewa Lal and Somnath knocked at the door of the Khokha (Kiosk). They asked the prosecutrix to open the door. The prosecutrix, who was sleeping in the Khokha, along with her three children opened the door for the accused. Jagdish asked her to let him do "something bad" with her. She refused to do so. Then the accused Somnath caught hold of her legs and Mewa Lal gagged her mouth and Jagdish raped her, against her will.

The prosecutrix and the accused Jagdish were medically examined. There was no mark of injury on the body of the prosecutrix. On examination of the accused Jagdish, it was found that there was hyper pigment of the penis and he was suffering from phemosis, because of which, the prepuce cannot retract. The Doctor opined that the phemosis appears to be evidence of a chronic infection and as per medical jurisprudence a person suffering from chronic phemosis is unable to have sexual intercourse for the simple reason that the person will experience great pain. In this case the Doctor had not opined that the accused Jagdish was able to do the sexual intercourse. In the absence of such opinion, and considering the diagnosis of phemosis given by the doctor in respect of the accused, the oral testimony of the prosecutrix alleging that overt act had been committed by the accused cannot stand. (Trial in progress).

11. State Vs G., F.I.R No.224/2000 U/S 363/366/368/376/120B IPC,
Police Station _ Rajouri Garden. Court of Deepa Sharma, Judicial Custody-
12th October1999

On 6th March 2000 the prosecutrix aged about 14 years had gone to market in the evening and met the accused Gopal in the market. It was alleged in the complaint that the accused Gopal lured her, and took her to Old Delhi Railway Station. In the
night they boarded a train for Darbhanga. It was further alleged that after two days journey in the train she reached Darbhanga and got married to the accused in a
temple as well as in the Court, it was also alleged that the Bhabhi of the accused
abetted the crime.

As per the ossification test, the age of the prosecutrix was opined between 15 years to 17 years the MLC of the prosecutrix shows no sign of any external injury considering the facts and circumstances of the case. The prosecutrix was a consenting party and as per medical jurisprudence, the age of the prosecutrix can be taken one or two years up or down. The trial is still in progress

12. State Vs J. G. S/o B.N. G., F.I.R 258/2000, U/S 363/366/376 IPC,
Police Station _ Karol Bagh, Court Urmila Rani, Judicial Custody_
10th September 2000

On 25th July 2000, the prosecutrix accompanied the accused to Bombay to marry him as she was in love with him. In Bombay the accused met his friend Saiful for help, but after knowing that his friend Saiful wanted to sell the prosecutrix, the accused, wanting to save the girl, brought her to Delhi. In her statement under section 164, she asserted that she was in love with the accused and had eloped with the accused. Earlier, before eloping, when the accused informed the girl's mother about their relationship, and asked permission to marry the girl, she (the mother) did not give her approval for their marriage. As a result they ran away from the house. As per the MLC report the prosecutrix was 17 years old and she confessed to the Doctor that she ran away with the accused (boyfriend), voluntarily, on 25th July 2000. She returned home on 10th September 2000 She also told the Doctor that the accused had never used force in their sexual relationship.

The accused was granted bail but he could not get out on bail, as he had no one in Delhi to stand surety for him. The charges are yet to be framed. On 17th July 2001 the accused was discharged.

13. State vs. R., F.I.R 221/99 P.S. Vikas Puri U/S 376 / 511 IPC, Judicial
Custody_ 20th May 1999_4th May 2001

The prosecution alleged that on 19th May 99 after filing a report vide DD No.3A; the police went to the house No.A-26, New Krishna Park where 3 persons produced the accused. It was alleged that the accused had tried to do "the wrong act" with the prosecutrix. The prosecutrix was medically examined and her statement was also recorded under section 164 Cr.P.C.

In the last two years there is only one witness Dr. Sonia Kaur, whose statement discloses that there was no evidence of any sexual assault on the body of the prosecutrix. Dr. Sonia Kaur has categorically stated that there was no external injury on the body of the prosecutrix, she further stated that the vulva and vagina of the prosecutrix were found healthy and on separation of vulva / labia minor, the hymen was seen to be intact and there was no bleeding per vaginum seen. There was no discharge per vaginum, and no other injury on the whole body was found. No Gynaecological intervention was required in the case of the patient. The prosecutrix did not complain of any offence U/S 376 / 511 IPC. In her statement before the magistrate under section 164 Cr.P.C. Nor was it alleged that the accused had done any thing to outrage the modesty of the prosecutrix. In her statement the prosecutrix did not utter a word about sexual intercourse. The matter is still pending in the court.

Conclusion

This research has been carried out with the sole intention of examining facts and seeing whether there is any scope of misuse of the laws. If misuse is possible, what are the reasons for the misuse? Also, who misuses the law and why? What are the advantages to the
police to insert section 376 in the FIR or in the Charge sheet especially when there is no complaint of rape, but only of kidnapping for the purpose of marrying the girl?

We are not presenting this paper to "lobby" for one cause against the other but to invite attention towards those problem areas in our legal system that are difficult to tackle and often get caught in controversy. By means of open, meaningful and honest discussions alone, progress for betterment is possible. Through such means, we invite you to look at the grave problem areas in our legal system.

We invite you to see whether it is possible to accept whether misuse of the rape related laws, including procedural laws is taking place. If we accept that it is taking place, we invite your recommendations to prevent this. We invite your recommendations on what provisions can be inserted in the existing law, which help the genuine victim without harming an innocent person who is being falsely accused.

We request your recommendations for some deterrent provisions against wrongful complaints. Should some penal clauses be added? If so what? Then there is the question of compensation to the innocent accused for his loss of position in society, defamation of his character, loss of his job and the number of years spent in wrongful confinement. Should it not be included in the same law so that the poor, ignorant segments of society who have suffered are compensated to the extent possible without having to run for help to the lawyers?

If the police inserts a charge of rape in the FIR without adequate evidence, should it also need to be accountable and be liable to pay damages to the accused whose case has been discharged or who has been acquitted?

ANNEXURE 1

Amendments

1. Indian Criminal Law Amendment Act (X of 1891): The age limit was raised from ten to twelve years by the Indian Criminal Law Amendment Act (X of 1891) for the following reasons: "The limit at which the age of consent is now fixed (i.e. ten years) favours the premature consumption by adult husbands of marriages with children who have not reached the age of puberty, and is thus, in the unanimous opinion of medical authorities, productive of grievous sufferings and permanent injury to child-wives and of physical deterioration in the community to which they belong"

(Statement of Objects and Reasons to bill No. 3 of 1891, Gazette of India, 1891,
Part V, p 5).

2. Indian Penal Code (Amendments) Act (XXIX of 1925), s.2: It was raised from twelve to fourteen years in clause (5) and to thirteen in the Exception to the section by the Indian Penal Code (Amendments) Act (XXIX of 1925), s.2 for the following reasons: "Books of medical jurisprudence establish the fact that the age of puberty in India is attained by a girl upon her reaching the age of fourteen. Even though puberty may be reached at the age, it is obvious that girls are unfit for sexual cohabitation
till they are older and more developed in physique and strength. The appalling infant mortality in the country is partially ascribed to early marriages and the consummation, which follows with immature girls. It is, therefore, not only for the protection of
minor girls as also of their progeny that the age of consent should be raised to at least fourteen years."

(Statement of Objects and Reasons to bill No. 12 of 1924, Gazette of India)

I. By raising this limit female children are protected (a) from premature cohabitation, and (b) from immature prostitution.

(Vide Hurree Mohun Mythee [1890] 18 Cal 49).

II. Code of Criminal Procedure (Amendment) Act, 1949 (Act XLII of 1949): The age limit has now been raised to sixteen years in clause (5) and to fifteen years in the exception by the Code of Criminal Procedure (Amendment) Act, 1949 (Act XLII of 1949).

III. Criminal Law (Amendment) Act, 1983 (43 of 1983): Section 375 and 376 were substituted in their present form by the Criminal Law (Amendment) Act, 1983
(43 of 1983) i.e. 25th December 1983.

ANNEXURE 2

The Definition of Rape

Rape: The following is the description as given in Section 375 of the Penal Code, which defines the offence of rape. The Section is reproduced below: A man is said to commit "rape" who except in the cases hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six:

First - Against her will.

Secondly - Without her consent

Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in the fear of death or of hurt.

Fourthly - 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.

Fifthly - 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.

Sixthly - 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. Clearly as defined above, `rape' involves sexual intercourse, done by man with a woman. When a woman is below 16 years of age, the offence, as a rule, is complete irrespective of her consent.

ANNEXURE 3

SECTION 376 _ Punishment for Rape

1. Whoever, except in the case provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years.

2. Whoever _

(a) Being a police officer commits rape _

i. Within the limit of the police station to which he is appointed; or

ii. In the premises of any station house whether or not situated in the police station in which he is appointed; or

iii. On a woman in his custody or in the custody of a police officer subordinate to him; or

(b) Being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position
and commits rape on any inmate of such jail, remand home, place or
institution; or

(d) Being on the management or on the staff of a hospital takes advantage of his official position and commits rape on a woman in that hospital; or

(e) Commits rape on a woman knowing her to be pregnant; or

(f) Commits rape on a woman when she is under twelve years of age; or

(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1: Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2: "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3: "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

Section - 376A Intercourse by a man with his wife during separation

Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term that may extend to two years and shall also be liable to fine.

Section - 376B Intercourse by public servant with woman in his custody

Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Section - 376C Intercourse by Superintendent of Jail, Remand Home etc.

Whoever, being the superintendent or manager of a jail, remand home or other place or custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Section - 376D Intercourse by any member of the management or staff of a Hospital with any woman in that Hospital

Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital,

such sexual intercourse not amounting to offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation: The expression "hospital" shall have the same meaning as in Explanation 3 to sub- section (2) of section 376

ANNEXURE 4

What Constitutes Sexual Intercourse?

Some penetration, however, slight, is sufficient to constitute the Sexual Intercourse necessary to the offence of rape. The degree of penetration is immaterial. It is essential that the hymen should be ruptured, or that there should be emission of semen. Without some penetration there can be no rape, though the act may amount to an attempt to rape. Penetration is very difficult to prove in the case of a married woman. A woman may get injured in her private parts and can allege that she has been raped. This makes false accusation easy because it is very hard for the so-called accused to prove that he never had sexual contact with the prosecutrix.

Against her Will

Will is that faculty or power of the mind by which we determine either to do or not to do something. It implies consciousness, cognition & mental determination. Sexual intercourse done with a woman against her wishes when she has full capability to give her consent and is aware of the nature and consequences of the act being done to

her resist or objects this amounts to `sexual intercourse against her will' and is rape
u/s 375 IPC.
Without her Consent

The question of consent is the most important aspect to establish the offence of rape. Consent may be expressed or implied. These are where circumstantial sexual intercourse amounts to rape when she is insensible and incapable of rational consent, due to fear, shock or intoxication or any other cause. If a woman does not resist sexual intercourse due to her misapprehension, it cannot be concluded that she has given consent. An act of helpless resignation and submission of her body under the influence of fear or terror is no consent. From the point of view of consent the following points are taken into consideration in a rape case:

* Consent given by a girl below the statutory age limit is not considered as a valid consent,

* Consent of the woman should have been obtained before the sexual intercourse and not after,

* Sexual intercourse with a woman of unsound mind is also rape because she is incapable of giving consent,

* Consent obtained by threat of death or hurt to herself or any other person in whom she is interested, or by deception is not a valid consent,

* A sleeping woman is not capable of giving her consent, so any sexual intercourse by a man with a sleeping woman, who is not his wife is considered as rape,

* Consent given by an intoxicated woman is not a valid consent,

* Consent obtained by fraud is not a valid consent; like in the case of R v/s Cox (D.C.223) in this case a girl of 14 years consulted a physician for suppressed menstruation. He had intercourse with her stating that it was a part of treatment. He was convicted for the offence of rape.

There is a difference between submission and consent. Every consent, involves a submission but a mere act of submission does not involve consent.

So, a woman after having consented to sex can allege that that person has raped her and that she was not a consenting party for the alleged act.

U/S 228A IPC amended by Cr. Law Amendment Act, 1983: Disclosure of identity of the victim of rape is prohibited.

Clause-1: whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence u/s 375, 376A, B, C and D is alleged or found to have been committed shall be punished with imprisonment of either description for a term which may extend to 2 years and shall also be liable to fine.

ANNEXURE 5

Related Provisions of Law Dealt along with Rape Laws

The Section 161 of the Criminal Procedure Code defines the statement before the Investigation Officer.

Section 161 - Examination of witnesses by police.

1. Any Police Officer making an investigation under this Chapter, or any Police Officer not below such rank as the state govt. may, by general or special order prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

2. Such person shall be bound to answer truthfully, all questions relating to such

a case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
3. The Police Officer may reduce into writing any statement made to him in the

course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement
he records.

ANNEXURE 6

Section 164 _ Recording of confessions and Statements

1. Any Metropolitan Magistrate may, whether or not he has jurisdiction in

the case, record any confession or statement made to him in the course
of an investigation under this Chapter or under any other law for the time
being in force, or at any time afterwards before the commencement of the
inquiry or trial:
Provided that no confession shall be recorded by a Police Officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

2. The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and the Magistrate shall not record such a confession unless, upon requesting the person making it, has he reason to believe that it is being made voluntarily.

3. If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession the Magistrate shall not authorize the detention of such a person in police custody.

4. Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such records to the following effect: "have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

5. Any statement (other than confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer the oath to the person whose statement is so recorded.

6. The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required

for being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released on bail
and gives an undertaking that he shall comply with such directions as may be
given by the Court.

ANNEXURE 7

Section 114A _ Indian Evidence Act

Presumption as to the absence of consent in certain prosecutions for rape: In a prosecution for rape under clause (a) or clause (b) or clause (c) (d) (e) (g) of sub-section (2) of section 376 of the Indian Penal Code, 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.

ANNEXURE 8

The Supreme Court in its judgement in

Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat (SC) Crime (2) VII 1983

Cited 8 reasons why a woman might misuse the rape related laws against a man in western society. The 8 reasons are _

"1. The female may be a `gold digger' and may well have an economic motive- to extract money by holding out the gun of prosecution or public exposure.

2. She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.

3. She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.

4. She may have been induced to do so in consideration of economic rewards, by a interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.

5. She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.

6. She may do so on account of jealousy.

7. She may do so to win sympathy of others.

8. She may do so upon being repulsed."

The Names of the Participants at the

Rape Workshop

1. Mr. Jes Boye Moller (Chief Guest)

Charge-de-Affairs
Royal Danish Embassy
11, Aurangzeb Road
New Delhi-110001
2. Mr. Peter Ellehoj

Secretary Development
Royal Danish Embassy
11, Aurangzeb Road
New Delhi-110001
3. Ms. Gita

12/15(FF),Tilak Ngr.
New Delhi-110018
Phone: 5104157
4. Ms. Sinchita V. Bhattacharya (Con.Clinical Psychologist)

Samvedna Psychiatric Clinic
S-325 GK-2, New Delhi-110048 Phone : 6471990, 6943121
5. ACP Jai Singh

CAW Cell,Nanak Pura
Phone: 6880393
6. Insp. Parmar

CAW Cell,Nanak Pura
Phone: 6883767
7. Dr. Indu Prakash Singh

Dirctor, AAA
Phone: 6011072
8. Mr. Thomas Palakudiyal

Chiristian Aid
Phone: 6153651

9. Mr. Puneet Bhatnagar (Advocate)

Delhi High Court

Phone : 98100-89224
10. Mr. Rakesh Sinha (Advocate)
Delhi High Cour

Phone: 5911291
11. Ms. Lalitha S.A.
Asst. Dir.JWP

14-Jangpura-B
New Delhi-110014
Phone: 4319821
12. Mr. Gupta
R.K.Instt. Def. Coly.

New Delhi-1100
Phone: 4623945
13. Mr. Raj Mangal Prasad
Prog. Incharge, APD

Shakar Pur (police Station)
New Delhi-1100
Phone: 2227259
14. Ms. Suneel Sodhi
B-3/4, Vasant Vihar

New Delhi-110057
Phone:
15. Mr. Anurag Sain
AAG

Phone: 2150613
16. Ms.Veena Sareen
Social Worker

Caw Cell, Nanak Pura
Phone: 5744276

17. Ms. Ira Singh

CAF-India

Phone: 6522206
18. Mr. Rono Mohanty
(Advocate)

Delhi High Court
Phone: 4350393
19. Mr. Ajay Pande
WARLAW

86-A, Shahpur Jat
New Delhi-110049
Phone: 6494886

20. Ms. Sujata Madhok
473 Shanti Niketan

New Delhi-110021
Phone: 4106266
21. Ms. Vibha
Defence Colony

New Delhi-110049
Phone:
22. Mr. D.K. Roy
Phone: 9810369650

23. Mr. Romesh Sapra
Phone: 9810287882

Report on the Workshop to Review Rape Related Laws to See Whether they are being ABUSED

Introduction

AIDS Awareness Group (AAG) started working in Tihar Jail with effect from 8th June 1996. We began with sessions on AIDS Awareness in the wards in various jails. However, when many prisoners began requesting for legal help, AAG added Free Legal aid to its agenda. We started providing free legal aid in 1996 after finding some lawyers who were willing to volunteer time for this work.

During the course of free legal aid, we discovered that many persons, who were in judicial custody on a charge for rape, were actually legally married to the girl with mutual consent, but against the wishes of the girl's parents. There were others who had had consensual sex with a woman after paying her a mutually agreed sum of money. In some cases the woman tried to make extra money by blackmailing them, demanding a large sum of money. When the men refused to pay, the woman filed a complaint of rape.

There were also some cases where the girl went with the boy of her own volition, eloping with him and having consensual sex, When she returned home, her parents filed a complaint with the Police of kidnapping and rape of their daughter (under sections 363 and 376 of the Indian Penal Code), and got the boy arrested and placed in judicial custody on a rape and kidnapping charge.

Coming across such cases made AAG's field workers realised that all was not right with the way the laws were being applied, if so many persons were behind bars for a crime they had not committed.

With this realisation AAG took up a project for research and investigation of rape and dowry related laws to investigate what was happening, and if they were being misapplied or abused. After three years research we were able to document 35 of our own cases

where it was clear that the laws had been misapplied or abused. In addition we

researched all Supreme Court and High Court judgements and found 3 Supreme Court and 30 High Court cases where these courts had acquitted the appellants having found them not guilty.
Since most of the cases Under Section 376 (rape), end at the Sessions courts, and since these are not reported in the law journals, AAG had requested the Delhi High Court for permission to access the files of the concluded rape cases so that a larger number. of cases could be studied. Unfortunately permission was not given and so we had to restrict the study to the reported cases plus the cases dealt with by AAG.

Proceedings at the Workshop

Initially there were some apprehensions among some of the participants that AAG's objective was to get the law amended and major changes in the law brought in, which would mean difficulties for the genuine rape victim. We reassured the participants that we are very strongly of the view that a real rapist should be punished after the due process of law. But we are equally interested in ensuring that an innocent person is not charged for rape and incarcerated in jail for a crime he has not committed. This research was undertaken to see whether the rape related laws were actually being abused; and if they were, then what could be done to prevent abuse of these laws without harming the interest of the actual victims of rape.

After understanding AAG's terms of reference for the workshop, these participants calmed down and participated actively, and constructively, and made some very good recommendations

Some Reasons Why the Rape laws are abused or misapplied:

During the discussions some of the reasons why the rape law (Section 376) is invoked inappropriately, were brought out. These are given below:

1. By the girl/prosecutrix

a. When she is discovered in the act of consensual sex trying to save herself and her reputation.

b. Filing a complaint of rape with the police when the man/men refuse to pay additional blackmail money after making prior payment and then having consensual sex.

c. When the girl gets pregnant after having sex with the man but he refuses to

marry her,

d. When the girl has sex with the man only on the explicit condition that he agrees to marry her, but he refuses to do so after having had sex.
2. By the parents

a. The girl elopes and marries a boy against the parent's wishes. The parents had objected because of

* Different caste or religion

* Different economic status

* They think he is not suitable _not of good character, or that they think that he will treat her badly.

* The reason that they don't like him.

b. The girl has been kidnapped for ransom. The police or the lawyer advises them to add the complaint of rape which is a cognisable non-bailable offence and so that the man can be put behind bars in judicial custody.

3. By the Police

When the police was not able to prove a case of murder of a girl, in one case, they

planted the semen of the man and then filed a case of rape and murder (u/s 376

and 302)
4. By a conniving family or persons
a. When somebody who had loaned some money, when he comes to demand the return of the loan.

b. As a means for blackmail by the person (sometimes a builder) who wants to buy somebody's property but the latter refuses to sell.

c. When a couple thinks that they will be evicted by the landlord as his relations have come and may need the jhuggi/house.

d. When a labourer who has not been paid for some months, demands his money from the employer and there are some unpleasant words exchanged.

There could be very many more reasons for abuse of the rape law but the reasons enumerated above were sufficient for the participants to agree that the rape related

laws could be and are being misapplied or abused/misused by the common man,

the police and perhaps the prosecutor for some gain or for revenge or out of anger
or fear.
The Discussions
During the discussions some of the difficulties faced by the police, the accused and the judiciary were discussed briefly. Some of these are:

1. Loopholes

The age of the prosecutrix cannot be determined accurately because

* The school leaving certificates are unreliable, particularly in the rural areas. Nobody registers the birth of his or her children in the villages.

* In urban areas the municipal birth certificates can, in many cases, be falsified for a consideration.

* The FSL test for determination of age can give an error of +/- 2 years and is therefore unreliable.

* Most prosecutors do not know how to prove the age. They are not trained and therefore they may be incompetent

2. Corroboration

* In rape cases there is almost always no corroboration, no independent eyewitnesses.

3. Delays

a. In Medical Reports and also reports from the Forensic Labs.

* There are too few Forensic laboratories in the country. The reports are forwarded to the courts after three to six months.

* There is a great delay in forwarding the semen samples to the FSL laboratories. As a result the samples are very often putrefied and of no use for the case.

* The judiciary therefore has to rely on the statement of the prosecutrix and circumstantial evidence. This can sometimes lead to incorrect judgements _ The guilty could be acquitted or an innocent person can be convicted.

b. In Trial

* There is an inordinate delay in these cases. Sometimes the charge itself is not framed for well over one year, and in some cases even three years. For the innocent accused this is highly traumatic.

* There is no stipulated time frame within which the investigation and trial must be completed.

* In many cases the trial is conducted over a period of two to five years. During this time the alleged rapist and accused, if he is innocent, he has already served almost the full sentence.

* There is no compensation awarded to the accused, based on the economic status of the innocent accused for the time spent in judicial custody on acquittal on a charge of rape after the due process of law. The quantum of compensation to be awarded also needs to be defined and updated from time to time.

* There is no accountability for the Investigating Officer, or the Prosecutor or the magistrate, or the judge for lapses in procedure, delays, and the guilty rapist has to be released on account of insufficient evidence produced by the prosecution. There is almost no punishment for poor investigation or framing an innocent person for a crime he has not committed.

* Sections 177, 181 or 182 IPC are not invoked and punishment is not awarded to the complainant for making a false complaint and giving false statements in court.

* The IO is not charged and punished under sections 177, 181, or 182 IPC, as appropriate for making a false case against the accused.

c. Poor or no Training of IOs, the Prosecutors and the Judiciary

* The IOs, the prosecutors and even the judiciary are not trained in collecting evidence, in following procedures, in documentation, in prosecution and in trial.

* They have had almost no exposure and sensitisation on gender issues, which is essential for investigation, prosecution and trial of rape cases.

* There is no time frame laid out for the duration of the trial.

The working papers given to each participant had details of over 43 cases where the accused had been acquitted giving the details for acquittal by the courts _ (Supreme Court, High Court, Sessions Courts). Once the participants were convinced that the rape related laws were indeed abused / misapplied or misused by many people. The question arose _ What can be done to stop this?

The participants were divided into three groups to examine from three viewpoints and see what recommendations for further action emerged. The three groups were:

1. The advocacy group

2. The legal group

3. The media group

After deliberations for two hours the groups came up with many recommendations for further action.

Summary of Recommendations

General Recommendations

1. A team of NGO psychologists and social workers should be attached to each major police station (district level). They should be used for examination of, both, the rape victim and the alleged rapist for mental behaviour assessment. In the western countries it helps to determine whether a case is a genuine or false.

2. The Number of FSL labs must be increased significantly _ at least one per State.

3. Prior to conviction, the police or media should not disclose the name of the accused.

4. The role of the media should be restricted in rape cases especially when it starts playing the role of the judiciary. This can be very damaging to the case and especially to the alleged accused.

5. Some volunteer NGOs or an appropriate government agency should be appointed

to study the practical difficulties of the Investigating Officers, their working conditions -- their difficulties, no vehicles for making investigations at night, no compensation for using public transport, their long and continuous working hours, (14 to 18) and whether the work assigned to them is realistically possible to be executed within the time allotted. They should then make suitable, practical and feasible recommendations. The government should implement these.

6. A study must be made of the Prosecution and the judiciary--what action is taken when the prosecution witnesses repeatedly fail to turn up or turn hostile especially where VIPs or their immediate families are involved. Some very stern measures need to be taken by the Apex Court to prevent a travesty of justice taking place.
7. A report should be made and circulated to the Apex Court, the High Courts and NGOs working in this field.

8. There should be networking of NGOs who are willing to assist.

Awareness and Media

9. Efforts should be made by NGOs, the Media and advocacy groups to create awareness in the lower income groups about their legal rights and the action to be taken by them in cases of rape so that evidence is not lost and the culprit is booked before the evidence gets tampered.

10. Workshops and street plays should be arranged by NGOs at the grass root level

on legal literacy. Small booklets on need-based questions of the people should

be made and distributed for the semi literates and the literates in very simple
language.
11. Documentaries and plays based on actual cases should be shown on the TV channels together with a small debate what should have done by the various people and agencies. This would be the most potent tool for legal literacy and for learning in such cases.
12. Websites should be created by NGOs on Legal issues and options available

to the common man. These can be in the form of Questions and answers,

with option for the public to express their views through the mailbox on the
web sites.
13. A PIL or a Common Cause litigation with a hundred or more actual cases asking for compensation for the acquitted accused (victims of false complaints of rape) should be taken up. These cases can be collected through networking with NGOs working on these issues.
14. NGOs should be supported financially for providing free legal aid at Community Based Counselling Centres and for legal literacy to the lower income groups.

15. The government should sponsor or design separate training workshops for Judges, Doctors, and the prosecutors and the police, sensitising them to gender issues, the trauma of the rape victim and appropriate ways of handling such cases so that the rape victim does not get intimidated and withdraw from the case because she can not face the brutality all over again.

16. The Law Commission should carry out a periodic review of the present laws related to rape.

Legal Recommendations

A. Police, Prosecutors and Judiciary and Accountability

17. The Investigating agencies should have the necessary infrastructure to fulfil their role fairly, and quickly. Their requirement of transport especially required for investigations at night must be catered for. Other essentially required facilities should also be made available.

18. Lady IOs, Prosecutors and Judges should be appointed for dealing with rape cases.

19. Preferably there should be a woman investigation officer in rape cases because the victim will be freer and clearer in giving her statement. Ideally they should be assisted by a doctor, a psychologist and a counsellor,

20. The Investigating Officers dealing with rape cases must have specialised training in investigation of rape cases. They must also be given adequate legal knowledge for handling these cases.

21. The state must be accountable and take responsibility for the lapses in investigation, especially in cases of false accusation and discharge of the accused. The informant and the srate must compensate the accused adequately. This should happen automatically and be part of the order discharging or acquitting the accused without his having to apply for it.

22. If the accused is in custody, the trial should be concluded within 6 months. If it does not conclude within this time, the accused must be granted bail forthwith, automatically.

23. In every Police Station, the police officer above the rank of ASI should be especially trained to investigate the matter of Rape cases. They should also be given sensitisation training on Gender issues.

24. If the accused is proved innocent and acquitted by the trial court or a real

culprit is acquitted due to lapses in investigation, the Investigating Officer

should be personally held liable for dereliction of duty and awarded
appropriate punishment as specified in the succeeding paragraph apart from suspending him.
25. The judges should take punitive action under sections 177, 181, or 182 IPC as appropriate against the informant or the police officer for making false statements/ case against the accused, leading to arrest, judicial custody and tremendous trauma and anxiety, both to the accused and his family.
B. Laboratories and Medical and Accountability

26. The case property should be sealed and sent to the Forensic Science Laboratory within 24 hours of the commission of the crime. The FSL test results must be given within a mandatory period laid down, within 7 to 10 days

27. In the hospitals, Doctors should be especially trained to prepare the MLC

report in accordance with the law and as per the basic principles of Medical jurisprudence.

28. The Doctors, who conduct the medical examination, should be personally examined in the court to prove the MLC in the court. A substitute representative from the hospital should not be accepted.
29. The Doctors should be held responsible if there is any dereliction of duty and incompetence and also for falsifying reports, (if and where applicable), and punished as appropriate.

Conclusion

There is ample evidence that many prosecutrix and their families are abusing rape

related sections of the Indian Penal Code. The police also misapply these laws quite

often. Many times the lawyers advise their clients to invoke section 376 for bringing
their opponent to the negotiating table and give in to the threat of blackmail. Some
drastic changes are required in the society and some easier and fairer forms of
negotiations should be available to prevent abuse/misuse and misapplication of the
rape related laws.
Finally this workshop is only the first of a series. We will need to collect much more data and only after analysis, would we be in a position to approach the Law Commission with the data to support a request for a review of the rape related laws. However a very good beginning has been made for this process.

Is Section 376 IPC Being

ABUSED?

A

REPORT BY AAG

AIDS AWARENESS GROUP

119, Himayun Pur (G.F.), Safdarjang Enclave,

New Delhi-110029*Phone: 6187953/54

Contents

1. Acknowledgement iii

2. Preface iv

3. Review 1

4. How Women Became Powerful 4

5. The Major Loopholes Responsible for Mis-Use of Law 6

6. Reasons Responsible For Mis-Use of Law 13

7. Cases of Alleged Rape Taken up by AAG 18

8. Conclusion 24

9. Annexures (1-9) 25

10. List of Participants 37

11. Report on the Workshop and Recommendations 39

Acknowledgement

We are very grateful to Mr. Jess Boye Moeller, the Charge d'Affair for his support and encouragement and for making time to attend part of the workshop despite his very busy schedule. We are also very grateful to Mr. Peter Ellehoj, the new First Secretary, Development for making the effort to spend some time at the workshop.

This project was made possible thanks to the financial support and guidance provided

by the Royal Danish Embassy, and particularly the help given by Ms Tine Lyngholm,

First Secretary. She encouraged us greatly and particularly supported our software development for documentation of Jail data. Without this documentation our research would not have been half as successful.
The AIDS AWARENESS GROUP (AAG) acknowledges the contribution of Mr. R.Gopal (Advocate) for over all guidance of the research effort by AAG's researchers, and his scholarly assistance in writing the report on the misuse of rape related laws;
Mr. R.K.Thakur (Advocate) for taking up the rape cases in courts on behalf of AAG

and recording their details; Ms. Upma Shrivastava and Ms. Shanti Som (both Advocates) for researching, compiling and collecting the data and writing different portions
of the report.
We gratefully acknowledge the contribution of Ms. Richa Bhasin for her excellent editing of the report. Our very special thanks are due to Dr. (Ms) Malvika Karlekar
for her brilliant suggestions for making the paper a blend of professionalism

and also giving it the NGO outlook. The final report was completely rewritten {incorporating all of Dr. (Ms) Malvika's suggestions}, edited and proof read by Elizabeth and Siddhartha.
Our grateful thanks are also due to Mr. Deepak Sharma for his assistance in data entry and formatting the documents.

Preface

The idea for this research originated from the work started in Tihar Jail in 1996, when we (Elizabeth and Siddhartha) started providing free legal aid to prisoners in dire need of help. Some of them had no money to hire lawyers; some had no contacts in Delhi to help them, others had no one to stand as surety so that they could get out on bail which was already allowed by the court. When we started taking up cases at random, we found many cases where a person who was charged under section 376 (Rape), was actually legally married to the girl he was alleged to have raped, and there was no

rape. Since the couple had married without parental consent, the bride's father

had filed a case of rape against the husband, in anger, claiming that his daughter
was less than 16 years of age and that the husband had abducted the girl and
forcibly married her against her wishes. We then decided that the effectiveness of
the rape law vis-a- vis the ground reality required close scrutiny to determine
whether or not the law was being abused.
We are very strongly of the view that a real rapist should be punished after the due process of law. But we are equally interested in ensuring that an innocent person is not charged for rape and incarcerated in jail for the crime he has not committed. This research was undertaken to see whether the rape related laws were actually being abused; and if they were, then what could be done to prevent abuse of these laws without harming the interest of the actual victims of rape.
The result of the study is presented in the pages that follow.