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Published : February 10, 2016 | Author : ROMA
Category : Criminal law | Total Views : 4538 | Rating :

  
ROMA
roma@legalserviceindia.com
 

Consequences of Prolonged Delays in Rape Trial

In a Society like India where cultural expectations and societal attitudes govern and determine pattern of relations and behavior, the incidence of rape becomes additionally critical. Instead of sympathy, victims of rape are invariably looked down upon. They tend to suffer a social stigma. Even their family members and relative tend to reject victims due to social pressure. Acceptability of victims becomes crucial in their homes and relationships. In the countryside victims are compelled to undergo a kind of purification. Reporting the matter to police is considered a daring act on the part of victim and their family members as this invariably results in bringing the matter to public which is perceived to cause social degradation and loss of public reputation of the family concerned This is the reason why cases of rape are the most under reported phenomenon in India. The situation does not change much even in urban areas. Victims and their family members are also reluctant to report the matter to the police as the whole enquiry by the police and prosecution place the victim to face embarrassing and uncomfortable volley of questions.

Sociological Impact In Society

The attitude toward rape changes over time and vary in different cultures. The view on male and female sexuality in one society at a certain period has always been and still is directly related to the attitude toward rape. When speaking about sexuality and rape, it is very important to consider the way men and women are portrayed in media, advertising, movies and music videos, in pornography and violent pornography. It is also important to remain critical toward myths of sexuality, such as that a man's sexual drive is an uncontrollable natural force, or that women say no but mean yes. When a woman has been raped it destroys her completely, she does not remain in a position to stand in a society, to face people people with an eye who after coming to know that she has been raped look differently as if she has murder someone. Not only is rehabilitation a problem, the society often looks at the victim from evil eyes. They have to heal doubly In most cases the family does not want take back the victim back as she has been raped and if she resumes back in the family, the reputation of the family will be at stake also on the plea that daughters in the family has got to be given in the marriage and as such they can’t take cack sexually exploited woman as they will be socially boycotted.

The fact remain that most of the victim remain unaccepted by the family members and community because she has been raped. An Indian girl at this stage is well aware about her reputation and consequences of admitting rape and is also aware of the fact of jeoparding the reputation of the entire family if the story is spread over in the society. And she knows the consequences of getting the match or life partner or getting her marriage in respectable family. What is required for the Social reintegration is that victim girl must be agreeable to go back to the family, she may be persuaded to go back to the family by counselling but at the same time the family must be counselled properly to accept her back without blaming her for anything . As the trauma, pain and suffering which she goes through, she needs her family more than anyone else. If family is not helping her then she will again be targeted by some other rapist. In case there is non acceptance of the victim by the family members than in that case the government may provide them shelter homes so that they can rehabilitate from the trauma and pain which they have gone through.

Physical And Psychological Impact

Some common physical injuries from a rape include pain, bruises, irritation and tenderness in the vaginal area, vaginal and anal bleeding, and sometimes tears in the vaginal-rectal area. If the victim has been thrown to the ground there may also be other injuries such as skin insults. The victim often suffers intense emotional reactions immediately after a rape. These can be described as personal crises where the victim relives the fear, agony or anxiety, mixed with emotional numbness. For most rape victims, the reactions begin days or weeks after the rape and decrease after two to six months. However, disturbing emotions combined with low self-respect and sexual dysfunction may last for a year or more for some.

No punishment can actually mitigate the sufferings of victims of rape. Victims suffer from depression As a result, they may also experience sleep disturbances and disorders. Sleep can be difficult for trauma victims to feel secure and unthreatened. Nightmares can result when an assault is replayed mentally and when there is a fear that it will reoccur. Nightmares typically involve feelings and emotions felt at the time of the assault or abuse, or immediately following, and can cause difficulty in falling sleep and staying asleep .

Insomnia can be described as difficulty falling asleep, difficulty staying asleep, or waking up too early. These periods of restlessness can last a few nights or become chronic and last several months, or even years. Reasons for insomnia are Life events which cause physical, emotional or mental pain. Anxiety about falling asleep, stress. Many victims who do not rehabilitate commits suicide another reason can be of prolong trail which makes victim to commit suicide. As again and again they have to appear in the court, have to answer the humiliating questions asked by the defense counsel and even if they answer those questions in end it amounts to an acquittal of an accused.

National Commission for Women emphasised on a system that should be evolved for ensuring relief and justice for rape victims. Expressing concern over increasing incidents of rape across the country including Rajasthan, the commission is of the opinion that both the Union and state governments must make efforts for speedy trial of rape cases and rehabilitation of the victims. Governments should make appropriate arrangements for immediate arrest of the accused, medical test and recording of statements of the victims within 24 to 36 hours of the case being reported, filing of challan in fast track court within seven days so as to ensure speedy justice to the victims. Trial of rape cases should be done in fast track courts and there should be separate special courts for rape trials only. Harping on the need for speedy trial, the commission said that Rape victims die every moment and they need relief and rehabilitation.The National Commission for Women has formulated the scheme after extensive consultation at the national level with all stake holders including NGOs, Under the scheme, the National Commission for Women had proposed that rape victims should be provided with interim assistance of Rs 20,000 preferably within 15 days to three weeks, to be disbursed by the district board after preliminary inquiry .

Conclusion And Suggestions
Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. Justice prides herself on being blind to everything but the truth yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favor the accused and challenge the veracity of the victim's allegation. Rape laws in India are antiquated, instances where justice has failed the victim because of interpretation of law, assessment of evidence, long delays at the trial and harsh and humiliating cross-examination of the victim are reported with alarming frequency. Though now rape is treated as a crime which infringes human rights as guaranteed under Art. 21 of the Constitution of India; The Right to Live but the rape laws are far from satisfactory. In several rape trials, the courts treats the women as the accused, thus playing even a darker role as perpetrators in preserving their oppression.

The rape laws in India are not sufficient to give the justice to the victims and this crime is taking place at alarming speed. The delay in justice relates to the delay in actual deliverance of justice or passing of the final order into the matter after the round up of the entire proceed­ings in full conformity of the prescribed procedures in respect thereof. In India, we find that the working of whole of the system is not satisfactory at all. As a result, there is an inordinate delay in the dis­posal of cases due to highly time consuming procedure. the system of law courts that we inherited from the British rulers has grown of age and needs modification, and these modifications should be such which suit our needs and convenience. The modifications should aim at shortening the period of proceedings of the court, amendment in the rules and regulations governing court proceedings and simplification of the procedures, so that people’s faith in the legal system may not finish. The rape trial run in a mockery, it takes ages to get it over, court are already flooded with so many cases as now a days people are in a habit of dragging their cases in the court.

The justice should reach to people soon so that there is no miscarriage of justice. Reasons for pending so much of cases in various courts can be lenient investigation by the police, examination and lack of protection of witness, lack of presiding officers, unnecessarily adjournments. They mainly contribute to the large pendency of criminal cases in the sub ordinate courts. Speedy trial of criminal cases should be recognised as a pressing need of the day. The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles. The mindset of the judiciary also needs to be improved by their education in gender sensitivity. The women’s tragedy is to face the compounding of gender and social injustice contrary to the constitutional promise to secure a social order in which justice, social, economic and political, shall inform all the institutions of national life’, and the State’s obligation ‘to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people.

In India, though about 80 percent of the rape cases are charge sheeted by the police, a large number of these cases ultimately end in acquittal because various factors like delayed reporting, unfavorable medical opinion, witnesses turning hostile. There is no specific limitation in which the trial must be completed, the longer the trial, the chances of acquittal of accused are more. Whatever be the type of crime, we try to control it by legally threatening the prospective criminal of dire consequences by way of punishment if that person commits a crime. The number of women stepping out of home for work throughout the country is increasing by the day, More women work in night shifts in urban areas than any time earlier. What is the government or the society doing to make these women safe? Both have responsibilities in this regard. That responsibiliy does not end with a decision on what is rape and the punishment a rapist should get. Setting up an efficient security system for women and constantly modifying them based on feedback from the society is an ongoing responsibility. Due to their vulnerabilities, women have always been insecure. With all our economic development, the age-old situation remains the same. It has to change

Suggestions

1. Police Reforms: Need to Sensitize

Accountability of institutions of justice delivery the police and the courts must accompany the demand for the appropriative laws. Accountability of police must start with a complaint procedure within the police service itself where a complaint can be lodged. Jurisdiction should not be an issue in all rape cases, a rape victim can file a complaint in any police station and later on that officer can transfer the complaint to the respective police station which has the jurisdiction to try that case.

Investigation shall be monitored by the DCP of the District concerned. Initial Special Reports, giving details of facts of the case, evidence available, instructions to Investigation Officers etc. shall be issued by gazetted officer within 72 hours of occurrence.

Investigation of the Rape case shall be conducted by a woman officer.

The victim should be handled with utmost sympathy and sensitivity. The behaviour towards women victim should be courteous.
No embarrassing or indecent questions should be put to her who is already under shock or trauma.

Proper account of the incident should be recorded in plain and simple language as early as possible in the informant’s own words.

Investigation Officer should visit in plain clothes to the victim’s house for ascertaining facts in the presence of her relatives or family members. Efforts should be made to get the statement of victim recorded Under Section 164 of Criminal Procedure Code at the earliest.

It shall be the foremost duty of the Investigation Officer to safeguard the scene of crime so that clues available at the scene of crime may not be disturbed. The inspection of scene of crime and picking up valuable clues from it play a vital role in the successful investigation and prosecution of a case.

The site plan of the place of occurrence is an important document. It shall be drawn correctively indicating distance among items found at the spot. The position of eyewitnesses, if any, must be shown. Collection and packing of evidence from spot should be done with utmost care and without loss of time by preparing proper seizure memo.

Charge sheet should be filed in the court within the limitation period that is 90 days after the arrest of the accused, as thereafter the accused may be let off on bail and may exert undue pressure on the victim and witnesses which will hamper successful prosecution.

Efforts should be made in basic training of the police and at advanced courses to re educate police and other officials in the treatment and handling of rape survivors. The legal process has to become more sensitive.

There is thus a need to sensitise police officials, All newly recruited officers should have a special sensitisation module in their training curriculum with particular focus on the malaise of victim-blaming and their role as facilitators of law and order and what all that entails. Cases involving sexual harassment often go unreported as police refuses to register them on grounds that the crime was committed in a different jurisdiction over which they have no authority and that the victim must get herself there to get the FIR registered. In such cases, the victim is unnecessarily harassed. It should be made mandatory by law for police officers in charge to register all complaints involving sexual harassment irrespective of the jurisdiction the same should fall under. Subsequently, the police must do the needful for the case to be registered in the correct jurisdiction and for the investigation to start without any delay.

2. Medical Reforms

India has no uniform format for compiling medical reports. This allows doctors in different parts to conduct examinations using differing or no standards wrongly conclude that the complaint is unsupported by medical evidence. When the evidence in many cases is inconclusive and it reach damaging conclusions unsupported by the evidence or even rely on outdated stereotypes about rape. High pendency and lack of judges in courts have also played a significant role in the collapse of the criminal justice system. Doctors who examine rape survivors receive little, if any, training on how to conduct a forensic examination and document evidence Unlike many other countries, India does not have a class of forensic nurses or specialized training programs in forensic examination for sexual offences for medical students.

1) It is seen that lady doctors in government hospitals hesitate to give frank medical opinion in rape cases for fear of appearing as a prosecution witness and then being subjected to embarrassing cross examination in the courts of law.

2) Medical examination is not done within the time and when the medical examination is not done reports are not submitted within the time period which further creates procedural delays.

3) Victims who approach health care providers directly often find that doctors are reluctant to examine and treat them unless they have already registered a police complaint, which can discourage or delay them from pursuing treatment.

4) Sometimes the doctor who has examined the victim turns hostile in the court and does not give the accurate statement in favour of the victim this make things worse and victim has to wait long for the justice to come in her way.

5) when forensic evidence is collected without delay, poor methods of collection, storage, and chain of custody of evidence, as well as processing delays, often either render it unusable or result in inconclusive information.

6) Victims are taken for medical examination, sometimes hours or delays, Hospitals entitled to take medico legal cases refuse or delay examination.

7) victim is treated in the most shabby manner by the doctors or medical staff; for lack of proper training.

8) The Medical Examination Report should only contain such information as is directly relevant to determining whether the incident of sexual assault took place, and to what degree.

9) As far as possible, the examination is to be conducted by a female medical officer.

10) The two-finger test should be discontinued or at the very least made optional.

11) Evidence so obtained must be stored safely, so as to prevent contamination of evidence.

12) The institution and continuation of a mandatory course on the basics of dealing with survivors of sexual violence, in particular the correct way to conduct medical examinations of such survivors, should be made a pre-requisite for a medical college to obtain accreditation from the Medical Council India.

13) Specialized training programmers should be instituted for medical professionals to sensitize them to the correct manner in proceeding with examinations of victims of sexual violence, without violating the victim’s dignity and privacy.

14) Such specialized training should be made mandatory for all such doctors who are authorized to conduct such medical examinations.

3. Stringent Punishment

India moved to combat widespread cases of rape, an issue which has galvanized public opinion and tarnished the country's international image. On April 4th, the Criminal Laws (Amendment) Act 2013 came into force. Having been adopted by legislators in the month of April. Among other measures, the new laws make the crime of rape punishable by death in some cases, especially if the woman is killed or permanently disabled. One of the most painful and lingering cases is that of the Mumbai nurse Aruna Shanbaug. Sodomised by a cleaner in the hospital where she worked, the 25-year-old was strangled with metal chains and left to die by her attacker, named Sohanlal Bharta Walmiki, on 27 November 1973. She was saved and survives, but barely so. For the past 39 years she has been lying in a hospital bed in a vegetative state, brain dead, unable to recognise anyone, unable to speak, unable to perform even the most basic of tasks. He was not even charged for raping her. Walmiki was given a light seven-year-sentence for robbery and attempted murder. In what can be described as a real travesty of justice, while a brain dead Aruna remains confined to a hospital room, her attacker roams free - out of jail and able to rebuild his life. This case shows the lacuna in the criminal justice system, where the victim is till in coma, where she is suffering every minute and the accused after committing a rape on her was held liable and was punished for just for 7 years and he was walked free. And it is the victim who suffers the entire life.

This new amendment act has a provision where death penalty is a punishment for the accused who kills the victim or put her in a vegetative state like this nurse Aruna Shanbaug( Died now) . Why criminal law amendment act has no retro respective effect if not in all cases but it must be allowed in special cases like this case of rape where the victim is suffering a lot. She has also filed a petition for the euthanasia in the Supreme Court of India, but it got dismissed as we have no law for the euthanasia.

4. Age of Juvenile be lowered to 16 Years

Another problem which is increasing in India is a crimes committed by the juveniles. Juvenile means a child who has not completed a age of 18 years. The juvenile justice act of 1986 where the age of juvenile was 16 years of age and this act got repealed and in 2000 the act came with the name The Juvenile justice care and protection act 2000 which says the age of juvenile is 18 years of age. Since then crimes are increasing and mainly committed by the juveniles. The sixth accused said to be the most brutal in the horrific gang rape of the 23 year old paramedical student in the national capital on Dec 16, 2012 is all likely to go scot free. The sixth accused has been declared as a juvenile by juvenile justice board, based on his school certificate. In the wake of the brutal gang rape and murder of the 23 year old student, there is a growing demand for lowering the age of juvenile from 18 to 16. Moreover, Justice JS Verma panel set up by the government to form strict laws against sexual assault on women also declined to reduce the age of juvenile offenders. The sixth suspect, listed as a 17 year old, will be tried in a juvenile court, where the maximum sentence would be three years in a reform facility. Age of juvenile must be reduced if not in all rape cases but in some exceptional cases.

Change in laws against heinous crimes like rape with provision of speedy trial and reducing juvenile age from 18 to 16 years in view of the spate of crimes being committed by youngsters must be there. People held on charge of rape should be meted out stringent punishment through speedy trial to instill fear among them. In one of the Bihar had successfully tested speedy trial in several cases including the one involving a foreigner rape victim. In that case judicial proceedings were completed in less than two months and culprits handed out punishment. The age of juvenile offenders to 16 from 18 at present in view of increasing number of crimes committed by youngsters must be reduced at soon as possible. It's a serious issue which needs to be revisited in view of increase in crimes being committed by youngsters. If age of voting can be reduced from 21 to 18, why can't we lower the age of juvenile from 18 to 16.

The juvenile age should be reduced because punishing him for just three years is inadequate. According to the law, if a person has knowledge of the crime and its consequences, he is mature enough to understand things. Punishment should be based on crime and not on age. These days children attain maturity at a very early age due to wide exposure. So there is no harm in reducing the juvenile age. Guilty should not be allowed to walk free after such a crime. Its high time the juvenile age is lowered. If the law does not deal with youngsters who are mature enough to commit ghastly crimes strictly, others in this age group will overcome fear of the law. Crime has to be nipped right in the bud or there will be more victims. Youngsters are either not aware of the consequences of committing a crime or they are not afraid of the law. Besides, there is a dire need for gender sensitization, so that boys learn to respect a woman. There should be more awareness and the education system should be changed so that everyone knows the consequences of a crime well in advance.

Also in India we have reformative theory where the accused who are put behind the bars are reformed in a presumption that after they being released they will be good law abiding citizens. But this reformative theory is futile in the present scenario, and hardly accused are reformed rather then they have hatred feeling and once they are out they repeat the offences.

Aruna Shanbaug Rape case 27th November 1973 (Maharashtra).




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