State of rape cases in India
The heinous act of rape is the most talked about crime in India. According to a report released by NCRB in 2018 around 91 rapes were reported daily meaning 1 rape every 15 minutes. The number of crimes against women and specifically rape is on rise. The conviction rate in rape cases is lamentably low at 27.2 per cent which indicates towards faulty justice system.
Introduction to the case
The case, which is discussed here pertains to Union Territory, Chandigarh v. Amit Kumar @Rachu & Others, where the High Court has made a flaw in delivering the judgement.
In a ruling in Union Territory, Chandigarh v. Amit Kumar @Rachu & Others, the High Court of Punjab and Haryana made a ridiculous statement by declining to issue Leave to Appeal against an acquittal in a rape case. This was due to the court’s decision that because the assaulted victims had no wounds. It was noted in the Medical examination that there existed no bodily injury on any part of the prosecutrix. The medical Expert had testified by saying no injury was observed. Thereby, concluding that she was a consenting party to the sexual intercourse.
Previously held cases on similar facts, decisions and rationale behind them
This was not the first case where absence of injury was ascribed as no offense of rape, rather the judgement is in deviation with the Apex Court’s established stand in In Vijay @ Chinee v. State of Madhya Pradesh. The court within this judgement ruled that rape sufferer should not be viewed as accomplices furthermore, the person in question statements, if judged to be credible and truthful, doesn’t really need confirmation. The offender may be charged based solely on the sufferer’s statements
In case of Rajinder @ Raju vs State Of H.P rationale put behind the judgement was, an accused can be convicted for rape as absence of injuries cannot be inferred as evidence of consent.
The Apex Court overturned the Allahabad High Court’s decision held in State Of U.P vs Chhoteylal. According to Allahabad court, hardly any internally or externally injuries were discovered on the sufferer, also she indulged into sex often. As a result, exonerated the suspect of rape allegations, whereas the apex Court overruled the verdict. It is unwise to Imply that any unconsented intercourse with woman would result in harm to the victims exterior or vital organs. The absence of lesions on the prosecutrix’s body is indeed not likely to refute her proof. In Dastagir Sab and Anr v. State of Karnataka, it was decided that impairment to the sufferers internal or external organs isn’t a necessary condition for proving a rape allegation. The omission of injuries is just not the only criterion for concluding occurrence of the crime.
Apart from this, the Justice Verma committee was formed for broadening the horizon of the rape laws. It helped in formulation of the Criminal amendment act 2013, where ‘consent’, is defined as “an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent.
In the case Wahid Khan vs. State of M.P, the Supreme Court made reference to Medical Jurisprudence and Toxicology postulating that sexual intercourse is the smallest penetration of the vulva by the penis, with or without semen emission. There is a high plausibility that rape is committed without any injury to the body. Also, in Balwant Singh And Ors. vs State Of Punjab the observation was made regarding the contention that The omission of any damage on the prosecutrix’s back or any other part of her body invalidates the appellants’ rape claim against her since the prosecutrix was anticipated to make defiance, implying and resulting in some harm on her body, notably behind. The judgement ruled that this claim lacks validity. As a result, the court was of the understanding that whenever there is resistance, injury is not compulsory. Thusly, it can be understood that the accused under the offence of rape where no injuries were visible and the absence of which were not considered as evidence of consent and can be convicted.
Section 114A of the Evidence Act also draws significance to the context. According to section 114A of the Indian Evidence Act, if the act of sexual intercourse is proven the query comes up if it was without the permission of the sufferer purported to be being raped and she indicates in her testimony before the Court that she didn’t give consent, the Court will presume that there existed no consent.
Consent in rape: Word Consent here is a disputable topic
In Words and Phrases, Permanent Edition, (Volume 8A) at pages 205-206, few American decisions wherein the word ‘consent’ has been considered and explained with regard to the law of rape have been referred. One such case is ” People v. McIlvain”.
“In order to establish “rape,” there ought not to be complete struggle, and the victim who is raped might not oppose to the extent of being battered into torpor, and in the event that she opposes to an extent and situation arises that opposition would be useless or until her obstruction is crushed forcibly or savagery, ensuing acquiescence isn’t “consent.”
It is not essential for there to be total insertion of the penis with the release of fluid and disrupting the hymen to establish rape. Penetration, however slight, is sufficient. It has also been a view of the court in Rafiq v. State of U.P Only a substantial perforation of the penis into the labia majora, vulva, or pudenda, with or without the discharge of fluid, is sufficient to establish rape in eyes of the law. Given the criteria of the offence, it is extremely likely that the offence was performed, and no bruises happened, although it is critical to recognise that it isn’t generally plausible for the sufferer to demonstrate defiance. It cannot be said that if they would have resisted, consequences would be suffering injuries. In this case the court relied more on medical examination rather focusing on the consent part. The fact that she was involved in a sexual intercourse, showed no resistance or had no injuries does not imply she gave consent to the act.
Whenever a rape victim or an offender is taken to a doctor, sole evidence necessary for investigation is gathered. The most of specialists are unaware (if there exists clear and significant visible injuries) that the medication of concealed injuries is necessary (not obviously visible) Injuries, prevention for and diagnosis of sexual diseases, contraceptive guidance, and psychiatric evaluation and therapy are all elements of their professional responsibilities, in addition to evidence acquisition and not simply medically evaluating the sufferer or suspect body. Need of the hour is specific legislation in this area, which sets guidelines about examination of the rape victim and letting decide the honourable court to decide whether resistance was offered or not and just not observing the explicit injuries on the bodies.
Rape is a heinous crime that has a severe psychological impact on the person. It is anything but an offence that tests the women’s poise and leaves such a deep scar on their personalities that they begin to feel disdainful and hateful of their own bodies. Hence a balance and reasonable perspective is the least expected. In the flawed order passed by the respected High Court, nucleus of the decision was absence of injury which means absence of resistance and connotes presence of consent. Thus, the court acquitted all the accused of the charges of rape. If assumed that absence of injury means consent, then the heinous act of rape will never be proved because the judicial system itself has given a key to escape the charges.