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Published : October 24, 2012 | Author : gunjanjhamb409
Category : Criminal law | Total Views : 4624 | Rating :

  
gunjanjhamb409
Gunjan Jhamb 4th year law student pursuing B.A.L.L.B (hons.) from Institute of Law, Nirma University.
 

Introduction and Research Problem
"The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.”- By Kiran Bedi., Joint Commissioner, Special Branch

Rape is, forcible seizure, or the ravishment of a woman without her consent, by force fear or fraud. It involves coercive non consensual sexual intercourse with a woman. Rape is the most gruesome and barbaric act perpetrated upon woman. It is gross violation of her bodily integrity and honor. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. The Supreme Court of India has aptly described it as ‘deathless shame and the gravest crime against human dignity’. Rape is not merely a physical assault but is destructive of the whole personality of the victim. It shatters the entire social fabric, destroys the poise of the milieu and ruins the harmony of the atmosphere. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis.

It is a crime against basic human rights one is entitled to and a clear violation of the Right to Life enshrined in Article 21 of our Constitution. To truly understand and analyze the laws relating to rape and other sexual offences, identify the glaring loopholes if any and deliberate on desired changes in the law, we need to treat Rape as a crime against the entire society and not solely against the women victims.

Supreme Court has given a clear picture of trauma which a rape victim suffers due to commission of this offence. The court observed that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of whole personality of victim.

On the second side of the coin where Rape is a very personal and distressing experience, and as Holmes (2009: 244) states, “one of the most despicable crimes that may be committed against a human being”.

The main aim of this dissertation is to establish whether false claims of rape made by women affect the workings of the criminal justice system or danger to the society at large.

The reporting of women making false accusations of rape to police is becoming more widespread, However, as yet, there is no systematically collated official statistics on the incidence of false allegations in rape as compared with non-sexual allegations.

False rape allegations are surprisingly common, not as common as genuine ones, but every false allegation of rape has an adverse reaction for genuine rape and other crime victims. This is why wilfully false allegations are treated so seriously by both the police and the courts. False rape allegations can also have devastating effects on the lives of innocent people, not only men.

A far more serious false rape allegation was reported last month by The Times Of India; this

case prompted some strong words from the judge:

"Such alleged (fake) victims of rape are potentially dangerous to the society in the sense that from tomorrow onwards the general public as well as the courts will start disbelieving the version given by even the real victims of rape".

Objective
There are certain which researcher would like to highlight are as follows:-
· The basic objective behind carrying out this research project is to analyze cases with respect to the offence of rape.
· To analyze and put forth the after effects of rape (including physiological and social) which the victim of rape faces after the sickening act has been committed.
· To explore the views and opinions of various professionals working within the field of rape and false implications made by women and the extinct of its threat to the society and criminal justice system.
· The views of professionals relating to false allegations of rape made by women and also the notoriety of injustice being done to men and to genuine rape claims.

Area of Research
· The researcher in this current Non-Doctrinal research limits the scope of the subject till the provision which are been laid in the theories of the criminology regarding the topic and also related Cases of the Hon’ble Apex Court. No comparative analysis with foreign laws has been undertaken.

· On the point that Judgement given by Gujarat High Court is legally justified and what are the views of the professionals in regard to the view of Rape as two side of coin has been considered..

Research Methodology
· The Current research is a Non-Doctrinal research due to which the researcher referred various book on Criminology and referred cases which are related with the topic.
· The researcher also made research on the topic on the internet and other data sources an outcome of which was various articles and journals.

Chapter II: - Rape : Two sides of the same coin
An increased sensitivity towards the plight of the victims is particularly noticeable in the landmark case of State of Punjab v Gurmit Singh. The case raised a very pertinent question that why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion. The court, while appreciating the evidence of prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement upon which to base the conviction of the accused. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and to an extent is even more reliable.

In TukaRam v. State of Maharashtra
The Mathura rape case, however, brought about a change. It acted as an eye opener to the hitherto judicial trend of barbarism and despotism. The judiciary, realizing its follies, modified its tone and the nineties saw the emergence of an activist institution furthering the cause of women.

It defined ‘consent’ in clear and explicit terms, so as to rule out the possibility of passive submission be interpreted as consent. It played an important role in the realization of the need to sensitize the law as well as the attitude of the Judiciary towards such cases to avoid the victim of the crime from being victimized again by the Court and the loopholes in the law.

The case came for hearing on 1st June, 1974 in the session court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was habituated to sexual intercourse, her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.

The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

In Vishaka Vs. State of Rajasthan and others sexual harassment was identified as a separate illegal behavior. The critical factor in sexual harassment is the unwelcomeness of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered.

As observed by Krishna Iyer, J.

"When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry."

Child rape is the most horrible kind of child abuse and such occurrences have shown a significant upward trend in the country recently. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet the Courts do not consider this rape.

The vulnerability of a child abuse is not only because of physical defenselessness but also due to trust and dependency relationships with old persons. Obedience and authority are also significant factor since most of the offenders happen to be the persons closely known to the child in many instance the abuse if of incestuous nature. Once commenced, the abuse generally continues for long durations of time. It may begin with "affectionate" touching which may eventually rise in course of time to a much more serious level. The continuation of abuse is primarily due to the fear of the offender; it could be even due to the emotional bond the child may have with the offender. The perception that no one might give any credence to her story if the matter was reported to the parents or other also acts as a strong deterrent from disclosing the truth.

3.2.1 Effects of the Abuse
Some of the usual effects on the child victim, which have been identified, are as follows:
1. "Keeping the secret" proofs to be too heavy a burden affecting the healthy emotional, mental and physical development of the child.
2. A deep sense of loneliness and isolation giving rise to a feeling of "being different" from other children manifesting symptoms of depression, anxiety and withdrawal.
3. The child suffers from maladjustment and difficulties in studies in school.
4. The effects on teenagers may include drug abuse, eating disorders, suicidal feelings or suicidal attempts and running away from home.

Low self-esteem and problems with various relationships including parenting the children may be some of the long-term negative effects.

“Lady who cooks up Rape”
“In the 20th century.' False Accusations became a reflection of a unique condition of women'”

Indication to False Implication
Of the many controversies surrounding the crime of rape, no more thorny issue arises than that dealing with false allegations, Generally, this issue is couched in terms of unfounded rape. However, we are not addressing that concept here since unfounded rape is not usually the equivalent of false allegation, in spite of widespread usage to that effect.

There is ample evidence, frequently ignored, that in practice, unfounded rape can and does mean many things, with false allegation being only one of them, and sometimes the least of them. Other factors that are typically responsible for unfounded declarations are victim's late reporting to the police, lack of corroborating evidence, lack of cooperation by the victim and/or witnesses, reporting in the wrong jurisdiction, discrepancies in the victim's story, wrong address given by the victim, victim's drunkenness, victim's drug usage, victim's being thought a prostitute, victim's uncertainty of events, victim's belligerence. In sum, the foregoing largely represent those conditions that could seriously frustrate efforts to arrest and/or convict the offender.

False rape charges have probably been in existence as long as the concept of rape. However, in the 20th century, medical jurisprudence saw a new development that enabled false allegations to be viewed as a singular instance of gender-related lying, something quite different in nature from the false accusations of robbery or burglary that were made by men.

In short, false rape accusations became a reflection of a unique condition of women. This new development was the masochistic nature of woman doctrine, a perspective that assumed women had a subconscious desire for rape, as evidenced by their rape fantasies and that neurotic individuals would convert their fantasies into actual beliefs and memory falsification.

In the legal literature, pseudologia phantastica became the authoritative scientific label for the condition responsible for false rape reporting (Grablewski, 1958; Juliver, 1960). Pseudologia phantastica was described as a "Delusional state in which the complainant truly believes that she had been raped although no rape, and perhaps no sexual contact of any kind, had taken place. Since she firmly believes this non-fact, her story is unshakable" (Bessmer, 1984).

Methods of bringing false charges of rape:
False charges of rape may also be brought in many cases. It is not uncomon in India. The methods adopted are as follows:
1. Chillies may be introduced in the vagina of the female child by the child's parents.
2. The geitals may be injured, in the case of children by their parents.
3. Blunt instrument or thumb may be intorduced into the vagina of the child by the parents to cause injuries.
4. Sometimes the clothes are stained with starch so that it will simulate seminal stains.
5. Some females may lacerate or injure their private parts and smear their clothes with blood so that the condition may resemle rape

Plea of false Implication due to previous enmity:

When previous enmity is alleged in rape cases court should see evidence with great circumspection.

it was alleged by prosecutrix that she was raped for about half an hour by the appllant and she could not raise an alaram because of her gagging during this period. When appllent fled away she raised an alaram and witnesses saw him fleeing. Husband of complainant was admittedly sleeping inside room with his ill mother while the prosecutirx was sleeping outside the veranda where occurence had taken place. None of the neighbouring house inmates came out on hearing hulla. Complaint was lodged after a week. Prosecutrix had been examined medically neither she narrated the incident to mukhia and villagers etc. Appellant was entitled to be acquitted as factum of rape was doubtful.

Reports of False Implications by Women:

Mewat sees rise in false cases of rape,

CHANDIGARH: The Mewat district in Haryana, where Muslims are in majority and which is also one of the most backward areas of the state, has witnessed a surge in false cases of rapes and molestation, allegedly for settling personal scores.

According to Mewat superintendent of police, Pankaj Nain, police have so far cancelled 32 false FIRs of rape in the last five years while investigations into 19 other cases were presently on. In most cancelled cases, the complainants were Muslim women.

· Lady who cooks up rape
PANCHKULA: A fake 'rape victim' is on the prowl in Panchkula. In what would be a wake up call for men, the woman - in her 50s - comes in various avatars, sometimes as maid servant or a fruit seller only to woo men and slap false rape charges if she fails to extort money.

The order of the Punjab and Haryana high court, pronounced on December 7, 2010, in one of the rape cases that the woman had filed against a Chandigarh cop, stated, "She admitted that 52 complaints were filed by her, including the application given to the SSP."

Conclusion

Rape is an expression of domination, power and aggression; a serious violation of dignity and freedom of a person.

The societal attitude towards rape and its victims must change. To achieve this goal, social worker and organizations must make sincere, intensive efforts and organize educative programmes, mass awareness camps, and advertisements to change the societal values.

It is not the sole task of one sector of society, but of every individual, to cooperate with the criminal justice system, to protest against this inhumanity called rape.

The existing trend has been to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either section 377 or 354 of the Indian Penal Code and not as sexual offence under section 375/376 of Indian Penal Code.

It has been found that offences such as sexual abuse of minor children and women by penetration other than penal/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victim is in no manner less than the trauma of penile/vaginal penetration under section 375/376, have been treated as offence falling under section 354 of Indian Penal Code as outraging the modesty of a women or under section 377, IPC as unnatural offences.

That is wholly irrational and erroneous. The offence of rape should take within its fold all the forms of sexual violence.

Contrary to it False accusations can be viewed as the impulsive and desperate gestures of women simply attempting to alleviate understandable conditions of personal and social distress and that, as an aggregate, labels connoting pathology. A

At first glance, false rape allegation seems to be a rather extreme gesture to satisfy alibi, revenge, or attention needs Practitioners in the mental health and legal professions, however, will readily recognize that these false rape reports are not really exceptional exaggerations in light of what people rather commonly do in order to satisfy these same needs in other contexts No evidence exists to suggest that something unique or defective is in the female condition that prompts such behavior. Rather, something biological, legal, and cultural would seem to make false rape allegations inevitable. If rape were a commonplace victimization experience of men, if men could experience the anxiety of possible pregnancy from illicit affairs, if men had a cultural base that would support their confidence in using rape accusations punitively, and if men could feel secure that victimization could elicit attention and syrnpathy, then men also would be making false rape accusations.
~~~~~~~~~~
# AIR 1996 SC 1393
# AIR 1979 SC 185.
# AIR ,1997 S.C 3011
# Siddique Ahmed ‘Criminology’, Eastern Book Company, 5th edition, pg.453-455.
# MacDonald, 1971; Brownmiller, 1975
# Ramchit Rajbhar v. State of W.B, 1992 Cri LJ 371 (Cal)
# Hiralal Mirdha v. State of Bihar, 2007 Cri LJ 3077 (Jhar)
# Manveer Saini, TNN Jun 13, 2012, 02.24AM IST
# Hina Rohatki, TNN Feb 18, 2012, 06.27AM IST

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




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