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Published : October 24, 2012 | Author : Chanduilnu
Category : Criminal law | Total Views : 49210 | Rating :

Chandrashekhar Sharma Pursuing 5year B.com.LL.B.(Hons.)Insitute of Law,NIrma University email: chanduilnu@legalserviceindia.com

A case study need on capital punishment in context of Rape

In India, these days, rape cases are found in daily news. We can see many cases like these in trains in Mumbai in front of everyone and no one coming for help instead. National capital Delhi has become the most unsafe place for girls where one rape happens almost every day. In other parts of the country too, this cases are very common like in UP and Bihar and in most of the cases, the accused get bailed because of having good social power. Our police department, due to their weakness and corrupted minds, fail to rescue these girls. Putting to rest the controversy over whether a person charged with rape and murdering his victim should be sentenced to the extreme penalty of death; the Supreme Court has ruled that in such a rarest of rare case an accused can’t be given the capital sentence but life term till the end of his life. This ruling has given a new thrust to the raging debate on compulsorily giving the extreme sentence of death to a rapist. But conscious of the consequences of such a legislation that could lead to serious ramifications, it is argued that the victim could lose the life too after khaving suffered the worst kind of brutality.Rape is committed by a person, he has intercourse with a women against her will or without her consent .The frequency of crime against women ,the inadequacy of the law of rape manifested in number of judgments and the strong protests by social activists ,jurist and judges and scholarship general and women organization in particular, against the failure of law to protect victim of rape. Death for rapist has become a familiar theme in parliament whenever the matter comes up for discussion in the week of large –scale rapes taking place in the country .The existing penal provision of rape under sec. 376, IPC would reveal that punishment may extent up to life imprisonment with section minimum imprisonment for 7year and sub section (2) Imprisonment for 10years with custodial rape and rape with a pregnant women. Since the legislature has already taken adequate measures, there is hardly any justification for death punishment the debate on capital punishment has been running over the past so many decades, but yet nothing concrete is coming up. Many may be satisfied with the present legislation on giving of capital punishment but to many of us it’s still not serving the purpose that it is deemed to serve. Is it actually working as a deterrent to crime? Which as far as our understanding goes is increasing day by day. History is evidence to the fact that capital punishment has never acted and would never act as deterrence to crime. In a land Mark Judgment Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment to the doer only because he has money to meet out whatever expenditure might come in defending his case. Be it by influencing or so to say compensating the families of those killed or hiring an efficient lawyer to prove the case in their favour. Talk about so many politicians engrossed from top to bottom in so many corrupt t activities known to everyone still go out of the Court smiling.

Statement of Problem
Now a days in India Rape is become the most heinous crime in the country. Due to this reason even the Indian Judiciary in great chaos. Some of the famous jurists and the social organisation working for the benefit of women have a view that to make the crime less active in the country the Judiciary must make the amendment in the punishment of rape and make capital punishment in the cases of rape. But in the mean while Judiciary have their own reasoning which state that if they make the capital punishment is the punishment in the cases of rape. Sometimes it will take the undue advantage of the other party. The problem is that how to decide the rarest of rarest in certain cases. Now researcher would analyse the all relevant aspect related to making capitals punishment in cases of rape.

(1) To know the relevancy of death penalty in case of rape.
(2) To examine the reasoning of rarest of rare in case of death penalty provided in rape.
(3) To enquire about the views of different jurist and social organisation regarding death penalty in Rape cases.

“Death penalty is an essence in the cases of Rape in India”.

Scope and Limitation

In this research project the Researcher cover all the aspects related with the need of death penalty in Rape cases in India. So researcher would cover all the area which states the need of the punishment in Indian Cases. With the help of different case law the researcher would find out the need of death penalty in Indian Cases.

Research methodology
Doctrinal methodology was adopted for this research. It will involve secondary data such as various Articles, Books and Journal etc.

Research Questions
(1) Whether death penalty is essential in the case of rape in Indian judiciary?
(2) What is the approach of Indian society on the issue of death penalty as the punishment in rape case?

Review of Literature

K.D Gaur , Criminal Law and Cases 4th edition The introduction of the project and some idea behind the making of statement of problem has taken from this book .As this book briefly discuss all the relevant points which are related with the need of death penalty in the case of rape in India.

Rakesh Bhatnagar, Supreme Court rules out death penalty for rape and murder accused, DNA, published: Monday, Feb 27, 2012, accessed on 28th July 2012. This article states the problem why the death penalty is not enter taint as a punishment in the rape cases in India. It also covers the current scenario of Indian Society on the issue of capital punishment in rape cases.

2.1 Law relating to rape- origin of:-
It is said that the present day’s law relating to rape has its origin in 1736 in Britain, when Sir Mathew Hale in his Hisoria Placitorium Coronae, or in other words, History of the Pleas of the Crown, presented common law rape doctrines which are immediately noticed to be hostile to the interests of women as one of the requirements was to inform the jury during the trail that the rape charges were easy to bring but difficult to defend.

2.1 Social Context:-
Rape is a gender –specific offence which can only be committed by men of all rapes. The victims may be women, other men or children. Around 90% of rapes are by people known to the victim. Over 90% of all rapes are against women. For these reasons, the victim or complainant of rape will be referred to here as female. This is not to under –estimate the prevalence or trauma male rape.

2.2 Rape-Meaning of.
Rape is the most heinous and inhuman offence. It is the barbarism of the worst order. Rape or Rapt is when a man hath carnal knowledge of a woman by force and against her will, or .Rape is the carnal knowledge of any woman, above the age of particular years, against her will.

Rape is the act of physically forcing a woman to have sexual intercourse that is forced upon.

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

First:-Against her will.

Secondly: - Without her consent.

Thirdly: - With her consent. When her consent has been obtained by putting her or nay person in whom she is interested in 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 of 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 under stance the nature and consequence 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.
Explanation: - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

2.3 Rape Theory:-
Rape was narrowly identified as theft of virginity until the thirteenth century, deriving from the Latin derivation of the word meaning to seize or carry off. In ancient times, raiding tribes would seize and carry off not only goods, cattle and other spoils of war but also women. The rationale of the offence was the protection of a man’s proprietorial right to control access to his wife or daughters. From theft of virginity it evolved to an offence against the will of the victim and this required evidence of force or resistance, as it still does in most American states. In the mid twentieth century rape became “the protection of woman’s discretion by proscribing coitus contrary to her wisher’ or, in other words, non –consensual sexual intercourse.

Some other theories about rape emerged too. Positive economic theory in the 1990s asserted on the basis of bio-economic principles of that sexual practice and norms were rational in the economist’s sense, males being sex seekers and females, sex-providers. Rape was a substitute for consensual sex rather than a manifestation of male hostility towards women.

2.4 Rape and Law:-
The alarming frequency of crime against women, the inadequacy of the law of rape manifested in a number of judgements and the strong protests by social activist, jurists , judges and scholars in general and women organisation in particular, against the failure of law to protect victims of rape ultimately led the Parliament in 1983 to extensively amend the law of rape vide Criminal (Amendment Act, 43 of 1983) so as to make the law more realistic. By the Amendment Act, the word “Sexual Offence” was substituted in place of “rape” .Section 375 and 376, IPC were extensively amended and ss 375,376 were incorporated for punishing those who molest a woman under their custody or rape. Sexual intercourse with wife under a decree of judicial separation has been also made punishable.

2.5 Rape – Right to Life:-
Rape is a crime against basic human rights, and is also violative of victim’s most cherished of fundamental rights, namely, right to life contained in Article 21. High Court observed that cases need to be dealt with sternly and severely.

2.6 Basis of Rape:-
Hidden behind rape is the idea that the women are property . In the act of rape, a woman is treated as an object to be possessed, a medium through which the men exert their masculinity, their superiority and their dominance.

The basis of rape is attack or attempt on the chastity of a female. This is because high value is attached to female chastity in all counties at all times. This indicated the bond and security of all social virtues and happiness. The definition of rape in Indian Penal Code under Section 375 is clumsy to remember and describe. Its basis is unlawful and carnal knowledge of a woman by force and against her will. The carnal knowledge is constituted by the penetration in the female genitals by the male organ. The law does not require complete penetration, even attempt is sufficient. The rupture of the hymen is not necessary evidence. For purpose of law, the facts of force, the resistance and absence of consent are legally essential to constitute the offence.

2.7 Rape and threat on minor girl:-
The materials on record disclose that the respondent taking advantage of the absence of his wife as also nay elderly person in the house, under the threat with the help of knife to the prosecutrix committed the most hated offence of rape on her. It is to be noted that the prosecutrix had been the family member of the respondent form her childhood, besides being his close relation i.e., niece of his wife. All these factors, and once it is established that it was a rape committed on a minor child, and that too by the person who was supposed to and required under the law to afford protection to the prosecutrix from all such ravishing acts minimum prescribed under the provisions of Section 376, of IPC, the learned Assistant Session Judge, Pune, clearly erred in observing that the ends of justice would meet if the accused was to be penalised of sentence of one year with fine of Rupees 1,000/-. In fact it has clearly resulted in miscarriage of justice and the same needs to be quashed and set-aside.

2.8 Minimum Mandatory sentence:
In the year 1983 the provisions of Section 376, IPC were amended and a provision was made for minimum sentence with a proviso that the Court may, for adequate and special reason, impose sentence of imprisonment for a term of less than seven years. In the instant case, there seems no adequate and special reason to reduce the minimum sentence prescribed under Section 376, IPC .

The Court has, normally, no discretion was not obvious of certain very exceptional situations and hence to meet such extremely rare contingencies it made a departure from, the said strict rule by conferring discretion on the Court subject to two conditions. One is that reasons should be “adequate and special reasons” and the other is that such reasons should be mentioned in the Judgement.

2.9 Should Death Sentence be Accorded for Rape :-
Death for rapist has become a familiar theme in Parliament whenever the matter comes up for discussion in the wake of large-scale rapes taking place in the country. Public opinion also favours such a step. It is presumed that the solutions range from death to castration and whipping for such a heinous crime against the society.

The existing penal provisions for rape under s376, IPC would reveal that punishment may extent up to life imprisonment with minimum of seven years under sub-s(1) to s376 and a minimum of ten years of imprisonment in case of custodial rape or rape on a pregnant woman, or on a child under 12 years of age or in case of gang rape, etc. under sub-s(2) to s376, IPC respectively.

Since the legislature has already taken adequate measures, there is hardly any justification for death punishment, which, in fact, might be retrogressive, instead of having any deterrent effect. It might even bring down the rate of conviction further. A judge would prefer to acquit an accused of rape instead of sentencing him to death. At the same time, death sentence for rape may be questioned as unconstitutional Art.21 of the Constitution, as in case of United States in Ehrlich Anthony Cooker, in which Georgia’s death penalty statutes which authorised capital punishment for rape, was declared unconstitutional by the US Supreme Court .The Court upheld that the defendant’s death sentence violated the prohibition against cruel and unusual punishment under the English and Fourteenth Amendment to the US Constitution.

Case Study:-
1. Tukarram v. State of Maharashtra, In this case a young girl Mathura, she was working in the defendant’s house. They decided to marry. The brother of Mathura lodged a complaint with the police that Nushi (landlord) and her brother kidnapped Mathura. The police constable Babu Rao called both the parties to the police station and obtained statements of Ashok and Mathura. It was about 10.30 p.m. and Tukaram and Ganpat, two constables, were present in the police station. While the parties were leaving the police station Tukaram told Mathura to wait and asked the rest to leave. Where he had a sexual intercourse with Mathura. Since, Tukaram was drunk, he could not do the act but went away after doing indecent gestures.

The Session Court pronounced that there was a sexual intercourse but this was not rape. Mathura, the court said, submitted to the police voluntarily and she had lied there after that she was raped. The High Court and Supreme Court also presume Mathura’s consent so they acquitted the constables.

2. In Bhai Singh v. State of Rajasthan, for raping a Harijan girl of 7 by a boy of 18, the court sentenced him for 5 years imprisonment only. It decision given on the ground of that the boy was only 18years of age.

3. Bijoy Kumar Mohapatra v. State of Orissa, in this case a girl studying in S.K.D.A. Women’s College, Rourkela was gang raped by 4 men. The HC of Orissa held that since the age of the girl was between 18 and 20, the question whether she had consented did not arise. “Consent must be voluntarily .A mere inevitable compulsion, queiscnece,non-resistence or passive giving in when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be consent. Consent on the part of a woman as a defence to all allegation of rape, requires voluntary participation after having fully exercised the choice between the resistance and assent”.

4. Sidheswaar Ganguly v. State of West Bengal, In this case it was held that the consent of the victim is immaterial when she happens to be less than sixteen years of age on date of the occurrence, i.e., 20 April 1954, when the accused was alleged to have had sexual intercourse with the girl. Though the ossification test (X-ray examination) is not a sure guide to determine age, in the absence of birth certificate the conclusion as to the age could be drawn from the fact and circumstance including physique of the person and examination.

Some Important Articles on Rape laws in India
# Sexual Harassment and Rape Laws in India
# Redefining the Rape Laws in India
# Rape Laws In India-Appropriate or not?
# A Woman Can't Rape Woman
# Rape law in India and World
# Capital Punishment for Rape. What justice are we taking about?
# Change in definition of Rape in India
# Marital Rape versus Conjugal Right
# "Rape”-Texual or Psychological: The need to change Section 375 of the IPC, 1860
# Dying Declaration by Rape Victims
# Need on capital punishment in the context of rape
# Women and Violence
# Women and Violence part-11
# Human Rights Violations-'An Anathema To Society'
# Subjugation of women rights lead to violation of human rights
# Crime Against Women & its Impact on Them
# Accomplice Evidence In Sexual Offences
# Eve teasing In India And Tortious Liabilities
# Rakesh Bhatnagar, Supreme Court rules out death penalty for rape and murder accused, DNA, published: Monday, Feb 27, 2012, accessed on 28th July 2012
# K.D Gaur, Criminal Law cases and Materials, Lexis Nexis Butterworts, 4th edition. India, New Delhi, 2005, p467-490
# Kataria R.P, Naqvi S.K.A. , Law Relating to Sexual Offences , Orient Publishing Company,New Edition 2011.
# Random House Dictionery of English Language.
# Janet Loveless, Criminal Law, Test, Cases, and Materials ,Oxford University press, First Edition 2008.
# Guar K D , Criminal Law Cases and Materials, LexisNexis Butterwords ,fourth edition.
# Kataria R.P, Naqvi S.K.A. , Law Relating to Sexual Offences , Orient Publishing Company, New Edition 2011.
# Dr. R.M. Jhala, Crime Investigation and Medical Science , Third Edition..
# State of Maharashtra v. Mohan Shah Karroo Janrao,2004 Cri LJ 3998.
# Kataria R.P, Naqvi S.K.A. , Law Relating to Sexual Offences , Orient Publishing Company, New Edition 2011.
# Guar K D , Criminal Law Cases and Materials, LexisNexis Butterwords ,fourth edition.
# AIR 1979 SCC 143:1979 SCC(Cri)381.
# 1984 Cri LJ 786.
# 1982 Cri LJ2162.
# AIR 1958 SC 143.A case study need on capital punishment in context of Rape.


Authors contact info - articles The  author can be reached at: chanduilnu@legalserviceindia.com

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