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Chapter III

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Offences against women:
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Sensitivity, Modesty and Sex
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105
Offences against women: Sensitivity, Modesty and Sex
Women have been depicted in the most respectable and aesthetic manner on
the one hand, on the other they have also been victim of indecent, vulgar and
obscene depictions. This contrast is difficult to balance especially where women
are treated as goods to promote sales. The terms obscene, indecent or vulgar are
difficult to define as they are intricately linked to the moral values in a society.
The test of obscenity is whether the tendency of the matter, charged with
obscenity, is to deprave and corrupt those whole minds are open to such immoral

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influence and into whose hands a publication of this sort may fall, if it does, the
matter falls within the purview of obscenity.

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2(A) (i) Obscenity- Provision relating to obscenity have been included in section
292-294 of the Indian Penal Code, 1980. They deal with sale, hire, distribution,
public exhibition, circulation, import, export or advertisement etc. of many matter
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which is obscene. Section 292 and 293 IPC were amended in 1969 to mate the
existing laws more definite in Explaining the term obscenity. In order to make the
law relating to publication of obscene matters deterrent, the section provided
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enhance punishment.
According to Section 292 of Indian Penal Code.74
[(a) For the purpose of sub-section (2) book, Pamphlet, Writing, Drawing,
painting, representation, figure or any other object, shall be deemed to be obscene
if it is lascivious or appeals to the prurient interest or if it effect, or (where it
comprises two or more distinct items the effect of any one of its item is if taken as
a whole, such as to tend to deprave and corrupt person who are likely, having
regard to all relevant circumstances, to read, are or hear the matter contained or
embodied in it.75 [(2)] whoever-

74
Ins. By Act 36 of 1969, S.2
75
S. 292 was renumbered as sub-section (2) of that section by S.2
106
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation, or for purposes of sale, hire, distribution, public exhibition or
circulation, makes produces or has in possession any obscene book, pamphlet,
paper, drawing, painting representation or figure or any other obscene object,
whatsoever or
(b) Imports, exports or convey any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object will be sold, let
to hire, distributed or publicity exhibited or in any manner put into circulation or.

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(c) Take part in or receives profits from any business in the course of which he

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knows or has reason to believe that any such obscene objects are, for any of the
purpose aforesaid, made, produced, purchased kept imported, exported, conveyed,
publicly exhibited or in any manner put into circulation.
(d) Advertises or makes known by any means whatsoever that any person is
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engaged or is ready to engage in any act which is an offence under this section or
that any such obscene object can be procured from or through any person or
(e) Offers or attempts to do any act which is an offence under this section shall be
punished76 (On first conviction with imprisonment of either description for a term
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which may extend to two years, and with fine which may extend to two thousand
rupees, and in the event of a second or subsequent conviction, with imprisonment
of either description for a term which may extend to five years, and also with fine
which may extend to five thousand rupees)
(Exception77 This section does not extend to-
(a) Any book, pamphlet paper, writing, drawing, painting, representation or
figure-
(i)The publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet paper, writing,

76
Subs. By Act 36 of 1969, S.2
77
Subs by S.2
107
 drawing, painting, representation of figure in the interest of science,
literature, art of learning or other objects of general concern, or
(ii) Which is kept or used bonafide for religious purposes;
(b) Any representation, sculptured, engraved painting or otherwise represented
on or in
(i)Any ancient monument with the meaning of the Ancient Monuments
and Archeological sites and Remains Act, 1958 or
(ii) Any temple or on any car used for the conveyance of idols or kept or

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used for any religious purposes]

young person- According to this section

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Sec 293 of the Indian Penal Code provides for Sale, etc of obscene objects to

Whosoever sells, lets to hire, distributes, exhibits or circulates to any

person under the age of twenty years any such obscene object as is referred to in
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the last preceding section, or offers or attempts to do so, shall be punished. 78 (on
first conviction with imprisonment of either description for a term which may
extend to three years, and with fine which may extend to two thousand rupees and
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in the event of a second or subsequent conviction, with imprisonment of either

description for a term which may extend to Seven years, and also with fine which
may extend to five thousand rupees.
Section 294 of the Indian Penal Code makes provision for obscene acts and
songs. This section reads as follows:
Whosoever to annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any
public place.
Shall be punished with imprisonment of either description for a term which may
extend to three months or with fine or with both

78
Sub. By IPC (Amendment ) Act, 1969 S.2
108
 The law relating to obscenity in India grew out of English Law which made
the courts guardian of public morals. But need to protect society against the
potential harm that may flow from obscene material and to ensure respect for
freedom of expression have to be balanced with free flow of information. The law
relating to obscenity is laid down in section 292 IPC.
The Supreme Court in Ranjit D.Udeshi V. State of Maharastra79, observed
the test of obscenity laid down by Cockburn, CJ80 should not be discarded. It held
that the test of obscenity to adopt in India is that obscenity without a

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preponderating social purpose or profit can not have the constitutional protection

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of free speech and expression and it is obscenity in treating sex in a manner
appealing to the carnal desire of human nature as having that tendency. The
obscene matter in a book must be consideration by itself and separately to find out
whether it is so gross and its obscenity so decided that it is likely to deprave and
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corrupt those whose minds are open to influences of this sort and into whose hands
the book is likely to fall. It was further observed in this Case that merely treating
with sex and nudity in art and literature can not be regarded as evidence of nudity
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or obscenity without something more. It was held that where obscenity and art are
mixed art must be so preponderating as to push the obscenity into the shadows or
the obscenity is so trivial and insignificant that it can have no effect and may be
overlooked. When treatment of sex becomes offensive to public decency and
morality is judged by the prevailing standards of morality in that society, then only
the work may be regarded as an obscene production.
In Chandra Kant Kalyan Das Kakodkar Case81. It was held that in
considering the question of obscenity of a publication what the court has to see is
whether a class, and not an isolated case into whose hands the book, article or story
falls, suffers in its moral outlook or becomes depraved by reading it or might have

79
AIR 1965 Sc 881
80
In Flicklin Case (1868) R3 QB. 360
81
AIR 1970 SC 1390
109
impure and lecherous thoughts aroused in their minds. What types of books can be
said to be obscene within the meaning of the section
The Supreme Court in Samaresh Bose V. Amal Mitra82 provided certain
guidelines;
In our opinion in judging the question of obscenity the judge in the first
place should try to place himself in the position of the author and from the new
point of author the judge should try to understand what is it that the author seeks to
convey and what the author conveys has any literary and artistic value. The judge

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should thereafter place himself in the position of a reader of every age group in

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whose hands the book is likely to fall and try to appreciate what kind of possible
influence the book is likely to have on the minds of reader. The judge should
thereafter apply his judicial mind dispassionately to decide whether the book in
question can be said to be obscene within the meaning of the section by an
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objective assessment of the book as a whole and also of the passages complained
of as obscene separately.
In Neelam Mahajan Singh V. Commissioner off Police83 on the question of
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the balance between freedom of speech and expression and public decency it was
held:
We need not to attempt to bowdlerize all literate and thus rob speech and
expression. A balance should be maintained between freedom of speech and
expression and public decency and morality but when the latters is substantially
transgressed the former must give way:
In Promilla Kapur V. Yash Bhasin84 The question as regards to a writer
made research of the subject of call girl, the Delhi High Court examined the book
entitled Indian Call Girls. The court felt there was nothing wrong if a sociologist
made a research on the subject of call girls in order to know the reasons as to how

82
1996 Cr LJ 24
83
1996 Cr LJ 2725 (Cal)
84
1989 Cr. LJ 1241 (Del)
110
and why girls enter this profession. On the question of telecasting a documentary
film on television, the Supreme Court held In D.G. Doordarshan V. Anand
Patwardhan.85 That the Case was related to the documentary film Father, son and
Holy War which the doordarshan decided not to telecast. This film won many
National and International awards in Israel, Japan and Canada. The court directing
Doordarshan to telecast film held.
In our opinion the respondent has a right to convey his perception on the
oppression of women, flawed understanding of manhood and evils of communal

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violence through documentary film produced by him: The freedom of expression

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which is constitutionally protected can not be held to ransom on a mere fall of a
hat. The films in its entirely has a serious message to convey and is relevant in
present text. Doordarshan being a state controlled agency funded by public funds
could not have denied access to screen the respondents documentary except on
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specified valid grounds.
2(A) To prevent the Indecent representation of women in numerous form Indecent
Representation of Women (Prohibition) Act, 1986 was passed by the
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parliament. The object of the Act was to prohibit indecent representation of women
through advertisements or in publications, writing, painting, figures or in any other
matter.
Section 2 (C) of the Indian Representation of women (Prohibition) Act
defines Indecent Representation of Women as follows: Indecent representation of
women means the depiction in any manner of the figure of a women, her form or
body or any part thereof in such a way as to have the effect of being indecent or
derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the
public morality or morals.

85
AIR 2006 SC 3346
111
 Section 3 of the Act prohibits publishing or causing to public or arrange or
take part in the publication of exhibition of any advertisement which contains
indecent representation of women.
Section 4 if the Act prohibits production, causing to be produced, selling,
distribution circulation or sending by post any book pamphlet, paper, slide, film,
writing, drawing, painting, photographic representation which contains indecent
representation.
This section shall not apply to;

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(1) publication justified on ground of public good;

(a)
(b)
Ancient monument .
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(2) publication kept or used bonafide for religious purposes;
(3) any representation, sculpture, engraved or painted in any

Temple, idols or used for religious purposes.

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(c) Any film in respect of which the cinematography Act applies.
Section 6 of the Act provides for penalty as follows. any person who
contravenes the provision of Sec. 3 or section 4 of the act shall be punishable on
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first conviction with imprisonment of either description for a term which may
extend to two years and two thousand rupees and on subsequent conviction for a
term not less than six months but which may extend to five years and with a fine
not less than ten thousand rupees extending to one lakh rupees.
In the case of offence is committed by the company, provisions are made in section
7 of the Act According to section 7 every person who at the time offence was
committed, was in charge of, and was responsible to, the company, shall be
deemed to be guilty of the offences and liable to be proceeded against and
punished accordingly86 but any such person if he proves that offence was
committed without his knowledge or that he had exercised the diligence to prevent
it shall not be liable.

86
Sec 7 (1) Indecent Representation of Women (Prohibition) Act, 1986
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 But if it proved that the offence has been committed by the company with
consent or connivance of or neglect on the part of any director, manager, secretary
or other officer of the company such person shall be proceed against and punished
accordingly.87
The offence under section 8 are cognizable and bailable
Section 5 of the Act, grants the power to any Gazetted officer authorized by
a State Government to enter and search any place,88 seize any advertisement or any
book, pamphlet, paper, writing etc89 and also examine any record, register,

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document or any other material found.90 Entry into a dwelling house can only be
granted with a search warrant.
2 (B) Offences against Modesty

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The word modesty has not been defined anywhere in the code. The
dictionary meanings of the word modesty is a state of being free from undue
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familiarities Outrage means an act of extreme violence and cruelty usually the
courts go by the popular meaning and assert that males should observe some sense
of propriety of behavior in their relations with women. Explaining this the court
In Surender Nath V. State of MP.91 It was held that pushing the bell bottom pant or
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chadar down than what is normally required is an indecent behavior.

2 (B) (i) Insult to Modesty
Section 509 of the Indian Penal Code applies to all women. Law presumes
them to be modest unless proved otherwise sending letter to a nurse containing
indecent gestures and lewd and filthy suggestions is culpable under Section 509
IPC Explaining Insult to Modesty the Court held In Tarak Das Gupta V. State92
that the accused, a university graduate, wrote a letter containing indecent overtures

87
Sec 7 (2)
88
Sec. 5 (1) (a)
89
Sec 5(1) (b)
90
Sc. 5(1) (C)
91
1982 Cr LJ (M.P.HC Notes) 10 (2)
92
AIR 1926 Bomb. 159
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and posted it in an envelope addressed to a English Nurse with whom he was not
acquainted. It was held that the accused intended to insult the modesty of the nurse;
and that the letter though enclosed in an envelope was an object which was
exhibited to the nurse on whose address it was posted.
By differentiating Insult to modesty and outraging the modesty the court In
Bankey V. State of U.P.93 the accused entered the apartment of a lady, Caught hold
of her and removed her garments, it was held that he had intruded upon her
privacy. This section does not require any element of criminal force or assault

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which is an essential element of an offence under section 354 IPC. Section 509

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applies to cases which are an insult to the modesty of a woman while in Section
354 the modesty is intended to be outraged. Both these section seems to overlap
each other to some extent but they are different. Assault is an essential ingredient
of Section 354 IPC, it also includes gestures which is an element of Section. 354
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proof of intention is essential. In Ramadas V. State of M.P.94 while attempting to
snatch a gold ornament lying in the neck of the lady the accused had put his hand
on her breast. When once he was unsuccessful he repeated the act, it can be
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presumed that he had full knowledge that his hand would come in contact with the
breast of the lady and her modesty would be outraged. The second repeated
attempt of putting the hand on the breast conclusively proves the intention of the
accused though the primary object may be to snatch the chain. The accused was
punished because knowledge is sufficient to hold the accused guilty of outrages the
modesty, the magistrate committed an error in ignoring this serious and vital aspect
of law. The High Court set aside the acquittal and rejected the request for leniency
holding that leniency in sex offences results in putting a premium and endangering
the modesty of the weaker sex.

93
AIR 1961 All. 131
94
1982 Cr. LR 36
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(B) (ii) Outraging the Modesty
Section 354 of the Indian Penal Code provides for outraging the modesty
According to this section whoever assaults or uses criminal force on any women,
intending to outrage or knowing it to be likely that he will thereby, outrage her
modesty, shall be punished with imprisonment or either description for a term
which may extend to two years, or with fine, or with both. In Andhara Pradesh, the
punishment shall not be less than five years but which may extend to seven years
and shall also be liable to fine.

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Pointing out on the gestures the court

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In State of Kerala V. Hamsu95 held that the accused who beckoned the
prosecution by winking his eyes in public and caught hold of her arm was guilty of
outraging her modesty and can punished accordingly. Even gestures when they are
made with the intention of outraging the modesty of a woman attract the section
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354 of the IPC.
In State V, Hetram96 a girl of about 15 years of age was coming from her
mothers place. The accused suddenly appeared from a lane he dragged her towards
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the other side of the lane, and took her to a secluded spot, it was held sufficient to
book the accused under Sec 354 IPC.
Womans modesty is her sex97 whoever uses criminal force with an intent to
outrage it commits an offence under section 354 IPC.98
The intention of the accused is the crux, no conviction can be based on
surmises, guesses or conjectures in the absence of any evidence. IN Jagmal Singh
V. State99 the court held that since the intention of the offender could not be proved
it was held that the appellant was wrongly convicted, so on appeal the conviction
was set aside unless the culpable intention is proved, mere touching the belly of a

95
1988 (2) Crimes 161
96
1982 Cr L.J. (Raj) 522
97
1975 Cr.L.J. (Cut.) 236
98
Sate of Punjab V. Major Singh AIR 1967 Sc. 67
99
1980 Cr L.J 9 (Raj.) 446
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woman in a public bus can not be called a deliberate act of outraging the modesty
of a woman within the meaning of this section.
Touching the belly of a girl is not culpable if it is not intentional Merely
putting the hand on the belly of girl cannot be construed to indicate that the
accused was using criminal force for the purpose of committing this offence or
causing injury or annoyance. It may be an attempt to draw the attention of the
girl100 In Ram Das V. State of West Bengal101 though the assault was there but the
intention to outrage the modesty could not be proved. The High Court upheld the

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acquittal while agreeing that the conduct of the accused was reprehensible as he
had tried to chase the girl.

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So far as the offence under section 354 IPC was concerned the allegations are not
sufficient to fulfill the necessary ingredient.
Referring to the Age of victim the Rajasthan High Court
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In State V. Vijay Singh102 it was held that section 10 IPC rules out any
consideration of the age of the victim for the determination of the guilt of the
accused. In State of Punjab V. Major Singh103 a female child of seven and half
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months was considered to be a woman under section 354 of IPC. The accused had
walked into the room where the child was sleeping and committed an indecent
assault on her. He was held to have committed the offence, under this section as he
had outraged and intended to outrage, whatever modesty the little victim was
culpable of. If the woman is a consenting party there can not be any outraging of
her modesty104 when any act, forbidden under these sections is done to a woman or
is done in her presence, irrespective of the fact that she had developed enough
understanding to appreciate the nature of the act, or to realize that it is offensive to
decent female behavior or sense of propriety, it is crime.

100
1982 Cr LJ 10
101
AIR 1954 SC 711
102
297 (Raj) Cr C (297)
103
AIR 1967 SC 63
104
Sadanand 1972 Cr LJ 65A (Assam)
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Sexual Harassment as Work Place:
Sexual harassment at the work place is a problem not only in India but is a
universal problem. Each incident of sexual harassment at place of work results in
the violation of the Fundamental right to Gender Equality and the Right of life and
liberty guaranteed by the Constitution of India. In 1993 at the ILO Seminar held at
manila, sexual harassment of women at work place was recognized as a form of
gender discrimination against women.
While explaining the term sexual harassment the Supreme Court In Apparel

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export promotion council V.A.K. Chopra 105. observed:

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Sexual harassment is a form of sex discrimination projected through
unwelcome sexual advances, request for sexual favoures and other verbal or
physical conduct with sexual overtones, whether directly or by implication,
particularly when submission to or rejection of such a conduct by the female
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employee and unreasonable interfering with her work performance and had the
effect of creating an intimidating or hostile working environment for her
The Convention on the Elimination of All forms of Discrimination Against
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Women, 1979. (CEDAW) and the Beijing declaration which directs all state parties
to take appropriate measures to prevent discrimination of all forms against women
besides taking steps to protect the honour and dignity of women in loud and clear.
The International Covenant on Economic and Cultural Rights contain several
provisions particularly for women, Article 7 of the covenant recognizes her right to
fair conditions of work and reflects that women shall not be subjected to sexual
harassment at the place of work which may vitiate working environment. These
International instruments cast an obligation on the Indian State of gender sensitize
its laws and the courts are under an obligation to see that the message of the
international instruments is not allowed to be drowned.

105
AIR 1999 SC 625
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 Is Sexual harassment of women at place of work has been recognized as an
infringement of the fundamental right of a woman under article 19 (1) (g) of the
Constitution of India to practice any profession or to carry out any occupation,
trade or business
Women have to workout at home, sometimes with family members or alone.
It has been found, when they are working alone, there is possibility of being sexual
harassment by male employee, employer or any other stranger at working place.
To meet out with such circumstances there was no specific law to deal with the

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problem with the increasing awareness and emphasis on gender injustice, and also

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be increasing effort to guard against such problem, a question was raised before the
Honble Supreme Court in the form of writ petition for the enforcement of the
fundamental rights of working women under Article 14, 19 and 21 of the
Constitution in 1997.
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During the 1990 in a brutal gang rape at the working place involved a
Rajasthan State Government employee who tried to prevent child marriage as a
part of her duties as a worker of women Development Programme. The feudal
patriarchies who were enraged by her (in their words a lonely women from a
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poor and potter community) guts decided to teach her a lesson and raped her
repeatedly.106 After an extremely humiliating legal battle in Rajasthan High Court
the rape survivor did not get justice and the rapists- educated and upper caste
affluent men- were allowed to go free. This enraged a womens rights group
called VISHAKHA that filed a Public Interest Litigation in the Supreme Court of
India asking the court to give certain directions regarding the sexual harassment
that women face at the work place.107
The aim of filing the Public Interest Litigation was to focus and to draw
attention towards this societal aberration and finding suitable methods for

106
Samhita (2001): The Politics of silence, Kolkatta
107
Combat Law: The human rights magazine, special on violence against women, Sept- Oct. (2003)
118
realization of the true concept of gender equality and too to prevent sexual
harassment of the working women in all work places through judicial process; to
fill the vacuum in existing legislation. In the absence of specific legislation there
felt urgency for safeguards by an effective alternative mechanism to fulfill this
demand and urgent social need.
The Honble Supreme Court has evolved a principal by fixing duties of the
employer to protect women workers at working place. The court held in Vishakha
V. State of Rajasthan108 that It shall be the duty of the employer or any other

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responsible person in work places or other institution to prevent or detect the

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commission of acts or sexual harassment by taking all steps required
The court also has laid down the guidelines under Article 141 of the
Constitution to prevent Sexual Harassment of working women in the place of their
work until legislation is enacted for the purpose.
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Definition of Sexual Harassment given by the Supreme Court
The Supreme Court in Vishakha Case has defined sexual harassment. The
court opined that sexual harassment includes such unwelcome sexual determined
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behavior (whether directly or by implication) as

(i)Physical Contracts and advances;
(ii) A demand or request for sexual favours;
(iii) Sexually coloured remarks;
(iv) Showing pornography;
(v) Any other unwelcome physical verbal or non-verbal conduct of a
sexual nature
Where any of these acts is committed in circumstances where under the
victim of such conduct has a reasonable apprehension that in relation to the
victims employment or work whether she is drawing salary, honorarium or

108
AIR 1977 SC 3011
119
voluntary, whether in Government , Public or private enterprises such conduct can
be humiliating and may constitute a health and safety problem.
Guidelines issued by the Supreme Court in Vishakha Case
The Supreme Court has laid down the following guidelines under Article
141 of the Constitution to prevent sexual harassment of working women in the
place of their work until legislation is enacted for the purpose.
It is necessary and expedient for employers in work places as well as other
responsible persons or institution to observe certain guidelines in insure the

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prevention of sexual harassment.

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It shall be the duty of the employer or any other responsible person in work
places or other institution to prevent or direct the commission of acts of sexual
harassment by taking all steps required.
These guidelines will not prejudice any rights available under the Protection
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of Human Rights Act, 1993
(a) Preventive Steps- All employers, persons incharge of work place,
whether in the public or private sector, should take appropriate steps to
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prevent sexual harassment without prejudice to the generality of her

obligation: he should take the following steps-
(i) Express prohibition of sexual harassment at work place, should
be notified, published and circulated in appropriate ways.
(ii) The Rules/ Regulations of the government and public sector
bodies relating to conduct and discipline should include Rules/
Regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
(iii) As regards private employers, steps should be taken to include
the aforesaid prohibitions in the standing orders under the
Industrial Employment (Standing orders) Act, 1946

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 (iv) Appropriate work conditions should be provided in respect of
work, leisure, health and hygiene to further ensure that there is
no hostile environment towards women at work place and no
employee woman should have reasonable grounds to believe
that she is disadvantaged in connection with her employment.
(b) Criminal Proceeding- Where such conduct amounts to specific offence
under the IPC or under any other law, the employer shall initiate
appropriate action in accordance with law by making a complaint with

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appropriate authority.
(c)

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Disciplinary Action- Where such conducts amounts to misconduct in
employment as defined by the relevant service rules, appropriate
disciplinary action should be initiated by the employer in accordance
with those rules.
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(d) Complaint Mechanism- Whether or not such conduct constitutes an
offence under law or a breach of the service rules, an appropriate
complaint mechanism should be created in the employers organization
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for redress of the complaint made by the victim. Such complaint

Mechanism should ensure time bound treatment of the complaints.
(e) Complaints Committee- The Complaint mechanism should be adequate
to provide, where necessary, a complaints committee, a social counsellor
or other support service, including the maintenance of confidentiality.
The complaints Committee should be headed by a woman and not less
than half of its member should be women. Further to prevent the
possibility of any undue pressure or influence from senior levels, such
complaints committee should involve a third party, either NGO or other
body who is familiar with the issue of sexual harassment.

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 (f) Workers Initiative- Employees should be allowed to raise issues of
sexual harassment at workers meeting and in other appropriate forum
and it should be affirmatively discussed in Employer- Employee meeting.
(g) Awareness- Awareness of the right of female employees in this regard
should be created in particular by prominently notifying the guidelines in
a suitable manner.
(h) Third Party Harassment- Where Sexual harassment occurs as a result
of an act or omission by any third party or outsider the employer and

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person in charge will take all steps necessary and reasonable to assist the

(i)

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affected person in terms of support and preventive action.
Duties of Government- The Central/ State Government are requested to
consider adopting suitable measures including legislation to ensure that
the guidelines laid down by this order are also observed by the employers
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in private sectors.
(j) These Guidelines are enforceable as law till legislation is enacted-
The Honble Supreme Court held that these guidelines and norms would
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be strictly observed in all works places for the preservation and

enforcement of the right to gender equality of the working women. These
directions would be binding and enforceable in law until suitable
legislation is enacted to occupy the field.
Efficacy of Guidelines issued in Vishakha Case
Though the Supreme Court issued the guidelines in Vishakha Case in 1997
against the sexual harassment of women at the place of work. Fourteen years have
been passed but the cases of sexual harassment are on increase and sometimes we
read see or listen that more violent harassment, often with impunity. It reveals from
the report of NCRB that 219 cases were reported from vijayawada city of the total
cases (1366) reported from 35 Mega Cities during 2010. Though there is slight
decline of these cases in comparison to 2009 but the problem does not seems to be
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in control. The reason behind the increasing number of cases of sexual harassment
reveals from the study that the majority of women are ignorant of the judgment in
the Vishakha Case passed in 1997. The Supreme Court not only defines sexual
harassment at work place but also issued guidelines to prevent it. A study of
National women commission (NCW) has shown that 60% of working women are
still not aware of these guidelines. It has been found in number of cases that
inquiry is being set up into the conduct of the complainants instead of taking action
against perpetrator. If a woman files a complaint of sexual harassment, that results

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in the isolation of the woman both by the employer and colleagues.

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Whenever a complaint is made by the victim of sexual harassment, the
response of the employer is of great resistance. The employer or the institution
gangs up against the complainant and shields the accused. The victim is pressured
to withdraw the complaint, either by persuasion or by threats. The institution
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attempts to close the complaint at the stage of preliminary inquiry itself often
witnesses who are mostly employees, are threatened to keep quiet.109
The Supreme Court held the objectives and functions of the judiciary include
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the following:
(a) To ensure that all person are able to live securely under the rule of law.
(b) To promote, within the proper limits of the judicial function, the
observance and the attainment of human right; and to administer the law
impartially among persons and between persons and the state.
Thus an exercise of this kind by the court in now well settled practice which
has taken firm roots in our constitutional Jurisprudence. In Arati Durgaram
Gavandi V.M.D. Tata Metaliks Limited (decided on 16-10-2008)110 a question was
raised before the Bombay High Court whether such conduct constitute an offence
under law or a breach of service rules,. The court held that it is necessary and

109
www.uttaranchalpolice.com
110
Manu/ Mh/ 0936/ 2008
123
expedient for employers in work places as well as other responsible persons or
institutions to observe certain guidelines to ensure the prevention of sexual
harassment of women. In Vishakha Case, the Supreme Court held that gender
equality includes protection from sexual harassment and the right to work with
dignity, which is universally recognized basic human right.
Research had been carried out by several organization on sexual harassment
at work place. A survey by Shakshi111 a voluntary organization (Delhi) throws up
some worrying data, by revealing that;

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80% of the respondents feel sexual harassment exists.
49% had encountered sexual harassment
41% had experienced sexual harassment

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53% women and men did not have equal opportunities.
53% were treated unfairly by supervisors employers and co-workers.
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58% had not heard of the Supreme Courts directive in 1997.
Only 20% of organization had implemented the Vishakha guidelines.
Keeping in View this problem, the Government of India requested the
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National Commission for women in India to draft the legislation. A number of

issues were raised regarding the New draft; ultimately a Draft Committee was set
up to make a fresh Draft Several Womens organizations were part on this
committee. Particular concern whilst working out the draft, has been to include the
unorganized sector and to incorporate the provisions of the labour laws. The Bill
introduced in Parliament was known as the Sexual Harassment of women (SHW)
at the workplace (Prevention and Redressal) Bill 2004 but the Bill could not be
passed by Parliament. Later on in 2007, again Bill was introduced before the
parliament after making necessary modifications but not in yet passed.

111
Article by Praveen Dalal, 2003: Infochangundia.org Nov. 2005
124
 Now as protection of women against sexual harassment at the work place
Act 2010 have been passed which is first ever attempt to institute law against
sexual harassment at the work place, the culprits will be punished accordingly.
Incidents of molestation during 2003-2010
Years No of Cases Reported
2003 32939
2004 34567
2005 34175

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2006 36617
2007
2008
2009
2010 la 38734
40413
38711
39893
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Source. NCRB
The causes of sexual harassment of women are myriad one cannot point any
single factor.
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Unfortunately in some cases, accusations of sexual harassment have been

cooked up to empress particular men but by and large such charges by women are
genuine yet it has become the most common way to create doubts on every
allegation. This is one of the greatest difficulties that is encountered in punishing
such case. For the boys it may be just for fun but only the girl why has been
harassed at the hands of the eve-teasers knows the mixed feeling of anger, disgust,
shame and humiliation that erupt every time she is molested or harassed.
The proposal to introduce a special cadre of police force to travel in buses
and to man other sensitive places has been on the cards.
Most of these incidents are not reported by the people concerned because no
one wants trouble in his time. It is the best way to avoid trouble. The law against
sexual harassment underlines the failure of earlier efforts to curb this growing
125
crime but the increasing number of incidents most to which are not reported makes
the doubt the success of the protective laws.
Personal safety and protecting the honour is another reason for not reporting
the crime. It is very difficult to know whether the Eve-teaser is just a causal
offences or belongs to a organized group, it is very difficult to get away from his
clutches after reporting . He takes it as matter of prestige and make the life of the
culprit hell.
3 (C) Sexual offences

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(1) Rape:

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Supreme Court of India while showing its concern over most heinous crime
rape observed Rape is a crime not only against the person of a woman, it is a
crime against the entire society. It destroys the entire psychology of a woman and
pusher her into deep emotional crisis Rapes is therefore the most hated crime. It is
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a crime against basic human rights and is violative of the victims most cherished
rights, namely right of life which includes right to live with human dignity
contained in Article 21112 Rape for a woman is deathless shame and must be dealt
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with as a gravest against human dignity, it is violation with violence on the private
person of a woman.
Every animal on the earth is attracted by the opposite sex; it is not limited to
human binges. Looking into the necessity of the sex human specie has recognized
intercourse between spouses through the marriage. The concept of marriage was
introduced with two objectives namely-
(i) To legitimize the sexual intercourse between two opposite sexes and
(ii) To legitimize the paternity of child born during wedlock. Besides it
intercourse with a woman against her will and without consent in an
offences across the world.

112
Bodhistava V. Ms Subhadra Chakroborty (1996) 1 SCC 490
126
 Rape in most heinous crime committed against women by men. It is virtually
a living death for a women yet the victims of forcible sexual intercourse is treated
as an accomplice in a society which values chastity as the most important attribute
of women hood and does not hesitate to test it by subjecting the women to the
ordeal by first without causing a ripple amongst the out lookers.113 It was perhaps
due to callous attitude towards rape and a general contempt for women that this
crime attained alarming proportions. It could no longer be contained in the closet
in which it had been hidden. In 1979 the judgment of Mathura rape case114

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snowballed with a mass movement with activists across the country demanding a

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new and more just law on Rape. 8 March, 1980 the International Womens Day
was observed as Anti rape laws day by womens groups all over the country. These
groups tried to break down the existing mythic regarding rape in the society
through leaflets posters and public meetings. Legal experts, including women
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wrote an open letter to the Chief Justice condemning the judgment which snuffs
out all aspirants for protection of human rights of million of Mathuras and
demanded re-opening of the case.
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The response of the government was prompt. A Law Commission was set up
to study the demands of various sections of the society regarding changes in the
outdated rape laws which had existed in the IPC since 1860 and was against he
Indian Culture and cloths.
In the penal laws of all countries sexual offences against women occupy a
significant place and out of all the crimes, the one which seeks the conscience, and
shakes its roots, and the most heinous is rape.
Of late crime against women in general and rape in particular is on the
increase. Rape is not merely a physical assault. It is often destructive of the
whole personality of the victim. A murder destroys the physical body of the victim,

113
Reference to the episode in Ramanayana: Ram had subjected Sita to this test, to prove her virginity during her
captivity in Lanka.
114
Tukaram and others V. State of Maharastra AIR 1979 SC 185
127
a rapist degrades the very soul of the helpless female. The courts therefore
shoulder a greater responsibility while trying an accused on charges of rape.115
According to the National crime Records, which reflect the social
degeneration almost 75% of rapists are married men who have sex regularly at
home.116 Women do not feel safe in cities: therefore of every ten rapists are either
friends or relatives of the victims.117 According to WHO every 54 minutes a
woman is raped in India.118 Whereas as per CDWS study. 42 women are raped in
India every 35 minutes.119 More disturbing than the above statistics is the grim

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scene of unreported cases. On atrocities against women, it was found that for every

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reported rape case, as many as 68 rapes went unreported120

Incidents of Rape cases during 2005 to 2010

Crime head
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Rape 2005 2006 2007 2008 2009 2010
18359 19348 20737 21467 21397 22172
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Age-Group wise victims of Rape Cases during 2010

Up to 10-14 14-18 18-30 30-50 Above Total
10 years years years years years 50 years victims
541 1345 3491 12650 3743 135 21925
Source- NCRB
An increasing trend in cases of rape-has been observing during 2005-2010
an increase of 6.2% in 2010 over 2009 however, incidents of rape has marginally
declaimed during 2009 as compared to 2008. These cases reported an increase of
115
State of Punjab V. Gurmit Singh (1996) 2 SCC 384
116
Reported in India Today; Sep 9 2002
117
Survey by team C. Voter, a private research group in Delhi
118
According to a survey to a study done by WHO
119
Study done by Centre for Development of Womens studies.
120
Field survey conducted in 2006 by Institute of Development and Communication (IDC ) on atrocities against
women.
128
5.4% in 2006 over 2005 an increase of 7.2% in 2007 over 2006. An increase of
3.5% in 2008 over 2007 and a decline of 0.3% in 2009 over 2008. Madhya Pradesh
has reported the highest number of rape cases (3135) accounting for 14.1% of total
such cases reported in the country However Mizoram has reported the highest
crime rate 9.1 as compared to National average 1.9
Rape Victims
These were 22172 reported Rape cases in the country in 2010 1827 of total
victims of Rape were girls under 15 years of age of while 3376 were teenaged girls

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(15-18) 12558 were women in the age group of 18-30 years. 3728 victims were in

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the age group of 30-50 years while 135 were over 50 years while 135 were over 50
years of age (The details are given in table 5.3)
Offenders were known to the victims in as may as 21566 (95.4%) cases
Parents/ close family members were involved in 288 out of 21556 cases. Relatives
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were involved in 1344 out of 21556 cases. Neighbors were in involved in 7816 out
21556 cases other known persons were involved in 12118 out of 21556 cases. In
the National Capital Delhi 568 cases of rape were registered in 2011.
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Rape is an act of violence expressed through sexual means. Studies suggest

that the crime is committed to relieve aggressive energies against the person
towards whom the respect has an awe and retaliatory violence is directed against
women- where they act as an object for displacement of aggression.121
What is rape-
Gary Scanlan and Christopher Ryan define rape as; Rape means insofar
as the law is concerned the slightest degree of penetration by the male sexual organ
of the female sexual organ (which) will be sufficient to constitute intercourse
without anything more occurring.122

121
Dr. Ashok Bhemani Sexual abuse of girl child.
122
Introduction to Criminal Law p. 208
129
 In English law Sec 1 of the Sexual Offences (Amendment) Act 1976 gave
statutory force to the definition formulates by the House of lords in Director of
Public Prosecution V. Morgan.123
This section provides that a man commits the actus reus of rape if he has
unlawful intercourse with a woman who at the time of intercourse does not consent
to it. The intercourse must be per vaginum. The absence of womans consent is an
essential feature of actus reus of rape. As to intercourse section 44 of the Sexual
Offences Act, 1956 provides that on the trial of any offence under this Act, it is

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necessary to prove sexual intercourse (whether natural or unnatural it shall not be

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necessary to prove completion of the intercourse by the emission of seed but the
intercourse shall be deemed complete upon proof of penetration only.
The Indian Law on rape evolved entirely on the basis of common law.
Rape Under Indian Penal code.
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Section 375 and 376, 376-A to 376-D IPC are related with the rape Section 375
and 376 have been substantially changed by Criminal law (Amendment) Act, 1983
which also introduced several new sections namely 376-A to 376-D. These
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sections were introduced to stop sexual abuse of women in custody care and
control by various categories of persons, which though not amounting to rape were
nevertheless considered highly reprehensible.
According to Section 375 of Indian Penal Code
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 descriptions
Firstly- Against her will
Secondary- 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 fear of death or of hurt.

123
(1976) AC 182: (1975) 2. All E.R. 347
130
Fourthly- With her consent, when the man knows that he is 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.
Fiftly- 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..
Sixtly- With or without her consent, when she is under sixteen years of age.

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Explanation- penetration is sufficient to constitute the sexual intercourse necessary
to the offence of rape.

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Exception- Sexual intercourse by a man with his own five, the wife not being
under fifteen years of age is not rape.
Section 376 of Indian Penal Code provides for the punishment of rape.
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(i) Whosoever, except in the cases provided for the 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
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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 court may for adequate and special reason to be mentioned in
the judgment impose a sentence of imprisonment for a term of less than seven
years.
(ii) Whoever:
(a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed, or
(ii) In the premises of any station house whether or not situated in police
station to which he is appointed or
131
 (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 is 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 a woman or childrens institution takes being advantage of his

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official position and commits rape an any inmate of such jail remand

(d)

(e) la
home place or institutions or
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
Commits rape on a woman knowing her to be pregnant or
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(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
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less than ten years but which may be for life and shall be liable to fine
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment impose a sentence of either description for a term of
less than ten years.
Explanation- 1 Where a woman in 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 and childrens institution means an institution whether
called an orphanage or a home for neglected women or children or a widow home
or by any other name, which is established and maintained for the reception and
care of women or children.

132
Explanation 3- Hospital means the precints of the hospital and includes the
precints of any institution for the reception and treatment of person during
convalescence or of person requiring medical attention or rehabilitation.
The law Commission of India has recommended that the offence of rape
under section 375 shall be substituted with the offence of Sexual assault by
including all kinds of penetration in vagina anus or urethra of another whether by
part of human body or by an object.124
The Honble Supreme Court did not adopt the definition of rape

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recommended by law commission and held that, the definition of rape can not be

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enlarged to include all forms of penetration but the words sexual intercourse
occurring in the definition of rape restricted only to case of penis- vagina
penetration. The dictionary meaning of the word sexual intercourse is also
heterosexual intercourse involving penetration of vagina by penis.125
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While explaining the term sexual intercourse it was held by the Kerala
High Court
In State of Kerala V. Kundumkara Govindam126 that the crux of offence
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under section 376 IPC is rape and it postulate of sexual intercourse. The word
intercourse means sexual connection. It may be defined as mutual frequent action
by members of independent organization. By a metaphor, the word Intercourse like
the word commerce is applied to the relation of sexes. In intercourse there is
temporary visitation of one organization by a member of another organization for
certain clearly defined and limited objects. The primary object of the visiting
organization is to obtain euphoria by means of a detend of the nerves consequent
on the sexual crisis. This Kerala decision explaining the word penetration states
that it means or through. It has also been held in Ghanshyam Misra V. State127 and

124 nd
172 Law Commission Report on the Review of Rape Law March, 2000
125
Sakshi V. Union of India AIR 2004 SC 3566
126
1969 CriLJ 818
127
1957 Cr LJ 469
133
Nathu Ram V. State of Haryana128. Supreme Court went a step forward and held in
Madan Lal V. State of J&k129 that if an accused strips a girl and then forcibly rubs
his organ on the private part of the girl but fails to penetrate the same into her
private part, it is difficult for the court to hold that it was a case of merely assault
under section 354 IPC and not an attempt to commit rape In facts and
circumstances of the instant case the offence was clearly established and the High
Court rightly convicted him under section 376 read with section 511, IPC.
Whether in the absence of any injury on the prosecutrix indicate consent of

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prosecutrix.
Absence of injury-

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In Pratap MisraV. State of Orissa130 and Laiq singh V. State of UP,131 the
Supreme Court delivered a judgment which went unnoticed and did not cause any
ripples amongst the various NGOs In both cases women were raped and the
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accused were acquitted by the Supreme Court after consecutive convictions in two
subordinate courts on the ground that absence of any injury on the prosecutrix
indicates consent of the prosecutrix.
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In 1978 the Supreme Court again pronounced another like judgment against
a conviction of the Bombay High Court under section 375 IPC and acquitted the
accused In Tuka Ram V. State of Maharastra132 popularly known as the Mathura
Trial Here, the Session Judge found the evidence insufficient to convict the
accused. The Bombay High Court reversed the finding and sentenced the accused
to rigorous imprisonment.
The Supreme Court reversed the decision of Bombay High Court and held
the accused not guilty on three grounds:

128
(1994) 1 SCC 491
129
(1997) 7 SCC 677
130
(1977) 3 SCC 41
131
(1970) 2 SCC 561
132
(1979) 2 SCC 143
134
 (i) There were no injuries shown by the medical report and thus stiff resistance
having been put by the girl is false. The alleged intercourse was a peaceful
affair
(ii) The court disbelieved the testimony that she had raised alarm.
(iii) The court held that under section 375 IPC only fear of death or hurt can
vitiate consent for sexual intercourse. There was no such finding recorded and
therefore since the girl was habituated to sexual intercourse there was consent.
The time the judgment was not accepted silently. There was marked protests

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and it was highlighted that, firstly there was inadequate laws to protect women

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who are victims of rape and secondly, there were no enough legal safeguards to
protect women who are summoned to a police station. The case piloted the
voice for amendment in the existing penal provision to make them more
effective in providing justice to the victim.
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After the much criticized Mathura Trial the Supreme Court decision in Rafiq
V. State of U.P.133 resulted in the conviction of the accused despite non existence of
any injury on the victim who was raped while she was sleeping. Explaining the
ratio in Pratap Mishra V. State of Orissa134 the Supreme Court pointed out.
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For the thing, Pratap Misra case laid no inflexible axiom of law on either
point Indeed from place to place, form age to age from varying life styles and
behavioural complexes, inferences from a given set of facts, oral and
circumstantial may have to be drawn not with dead uniformity but realistic
diversity lest rigidity in the shape of rule of law in this area be introduced through
a new type of precendial tyranny.
Whether the woman of easy virtue are not protected by section 375

133
(1980) 4 SCC 262
134
(1977) 3 SCC 41
135
 In the Matura Trial135 one of the reasons for the judgment was the Mathura
was a person of easy virtue and therefore the happenings were with her consent. In
an open letter to the then chief justice it was said.136
It may be said that in strict law, the accused was charged with rape on the
third component of description of rape, In the case the issue before the court was
simply whether the act was committed with her consent, or under fear of deaths or
hurt? But still the question whether there was consent was quite relevant; indeed, it
was crucial from the facts of the case, all that is established is submission, and not

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consent, could not their lordship have extended their analysis of consent in a

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manner truly protective of the dignity and right of Mathura? One suspects that the
court gathered an impression from Mathuras liaison with her loves that she was a
person of easy virtue. Is the taboo against premarital sex so strong as to provide a
license to the Indian Police to rape young girls? or to make them submit to their
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desires in police station.137
In Prem Chand V. State of Haryana138 the Supreme Court reduced the
minimum sentences of 10 years for rape to 5 years on account of the conduct of the
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raped girl. The raped girl was a woman of easy virtue. This decision caused an
agitation, and a movement by womans organization led to gross criticism of the
Supreme Court and resulted in the filing of a review petition. Though the review
petition did not succeed the Supreme Court tried to clarify its position. It said;
We have neither characterized the victim Suman Rani as a woman of
questionable character and easy virtue nor made any reference to her character or
reputation in any part of our judgment but used the expression conduct in the
lexicographical meaning for the limited purpose of showing as to how Suman Rani
has behaved or conduced herself in not telling anyone for 5 days about the sexual

135
(1979) 2 SCC 143
136
By Upendra Baxi, Vasudha D Kalkar and Lotika Sarkar against the judgment.
137
Vasudha Dhagambar, Law Power and Justice
138
1989 Supp (1) SCC 286
136
assault perpetrated on her. In the end Supreme Court observed; we would like to
express that this court is second to move in upholding the decency and dignity of
womanhood and we have not expressed any view in our judgment that character,
reputation or status of a raped victim is a relevant factor for consideration by the
court, while awarding sentence to a rapist
Supreme Courts decision in State of Maharastra V. Madhukar N.
Mardicor139 was appreciated, as the court responded to the voice of women
activist.

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The Supreme Court in this case, laid down that even a prostitute has a right

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to privacy The unchastity of a woman does not make her open to any and every
person to violate her person as and when he wishes. She is entitled to protect her
person if there is an attempt to violate it against her wish. She is equally entitled to
the protection of law. Therefore, merely because she is a woman of easy virtue, her
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evidence can not be thrown overboard. At the most the officer called upon to
evaluate her evidence would be required to administer caution unto himself before
accepting her evidence. In the circumstances of the case however there was
sufficient corroboration of the fact of a police inspectors attempt to bend her by
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force to submission which evidence was generated by the inspectors unsuccessful

bid to camouflage the incident into a prohibition raid
Prosecutrix was not having good character and was a girl of easy virtue, the
Supreme Court in State of U.P. V. Pappu140 held that it is no ground for acquittal of
the accused. The Supreme Court observed that:
Even assuming that the victim was previously accustomed to sexual
intercourse that is not a determination question. On the contrary the question which
was required to be adjudicated was, did the accused commit rape on the victim on
the occasion complained of ? Even if it is hypothetically accepted that the victim

139
(1991) 1 SCC 57
140
(2005) 3 SCC 594
137
had lost her virginity earlier it did not and can not in law give license to an person
to rape her. It is the accused who was on trial and not the victim. Even if the victim
in a given case has been promiscuous in her sexual behavior earlier. She has a right
to refuse to submit herself to sexual intercourse to anyone and everyone because
she is not vulnerable object to prey for being sexually assaulted by anyone and
everyone
Is corroboration of testimony necessary
Corroboration may be essential in the backdrop of the social ecology of the

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western world. It is wholly unnecessary to import the concept on a turn key basis

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and transplant it on the Indian Soil regardless of the altogether different
atmosphere, attitudes mores and social responses of the Indian society 141.
The Supreme Court in Rameshwar V. State of Rajasthan142 and also in
Sridheswar V. State of Bengal143 has held that a woman who has been raped is not
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an accomplice. If she was ravished she is victim of the rape and if she has
consented, there is no rape. The true rule of prudence requires that, in every case,
the advisability of corroboration should be present in the mind of judge and that
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must be indicated in the judgment.

Explaining Further in State of Rajasthan V. Noore Khan144, it was laid down
that there is no rule of law that testimony of a rape victim cannot be acted upon
without corroboration in material particular. Here testimony has to be appreciated
on the principle or probabilities just as the testimony of any other witness a high
degree of probability having been shown to exist in view of the subject matter of a
criminal charge.
In Rafiq V. State of U.P. 145, Krishna Iyer, J said:

141
1952 SCR 377
142
1952 SCR 377
143
AIR 1958 SC 143
144
(2000) 5 SCC 30
145
1980 Cr Lj 1344 (SC)
138
 When no woman of honour will accuse another of rape since she sacrifices
thereby what is dearest to her she cannot cling to a fossil formula and insist on
corroborative evidence, even if taken as a whole, the case spoken to by victim
strikes a judicial mind as probable-----when a woman is ravished what is inflicted
is not merely physical injury but the deep sense of some deathless
shame..judicial response to human rights can not be blunted by legal begarty
The observance made by the Supreme Court in various cases is not without a
word of caution as is evident from Dilip V. State of M.P.146

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It is well settled that sole testimony of the prosecutrix could be acted upon

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and made the basis of conviction without being corroborated in material
particulars. However, the rule about the admissibility of corroboration should not
be ignored by the courts in sexual offences
In Bhupender Sharma V. State of H.P.147 the court held that.
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To insist on corroboration except in the rarest of rare cases is to equate one
who is a victim of lust of another with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a woman that her claim of
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rape will not be believed unless it is corroborated in material particulars as in the

case of an accomplice to a crime why should the evidence of the girl or the woman
who complains of rape or sexual molestations be viewed with the aid of spectacles
filled with lenses tinged with doubt, disbelief or suspicion.
The Supreme Court again in Sri Narayana Saha V. State of Tripura148 held
that The evidence Act, 1872 nowhere says that her evidence can not be accepted
unless corroborated. If the prosecutrix is an adult of full understanding, the court is
entitled to base a conviction on her evidence unless the same is shown to be infirm
and not trustworthy. Non corroboration by medical evidence and minor
discrepancies in her evidence which was recorded seven years after occurrence

146
(2001) 9 SCC 452
147
(2003) 8 SCC 217
148
(2004) 7 SCC, 775
139
would be of no consequence. Further as in this case, the victim being a married
woman, possibility of falsely implicating accused person is ruled out.
Some drastic changes in the protective laws were brought to provide special
privilege to the victim of rape.
Criminal law (Amendment) Act, 1983 introduced further improvement in
law relating to sexual offences, for the benefit of the victim. This is found in the
provision of section 228 A IPC, Section 327 (2) Cr. P.C. and 114 A evidence Act.
Section 228 A IPC protects the honour of sexually victimized women. It

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makes it possible for them to depose in court without any fear of social ostracism.

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Section 114 A of the Evidence Act raises a presumption of absence of consent in
cases of custodial rape, rape on pregnant women, rape on minor and gang rape, just
on the evidence of ravished women.
The inquiry into a trial of rape shall be conducted in camera as per section
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327 (2) Cr P.C. The discretion to allow any particular person to have access to the
proceedings of the court, rests with the presiding judge. The court can do so on an
application of the person desiring to present at the proceedings when the
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proceeding are being held in camera it shall not be lawful for any person to print or
publish any matter relating to such proceedings, except with the previous
permission of the court. Any person who prints or publishes the name or any
matter which may make known the identity of any person against when on offence
of rape has been alleged or found to have been committed, shall be punished with
fine and imprisonment.
The Honble Supreme Court has observed that inspite of the amendment,
however it is seen that trial courts either are not conscious of the Amendment or
they do not realize its importance for, hardly does one come across a case where
the inquiry and trial of rape has been conducted by the court in Camera. Whereas,
the expression occurring under section 327 inquiring into and trial of rape shall

140
be conducted in Camera is not only significant but very important. It casts adultery
on the court to conduct the trial of rape case invariably in Camera.149
The Supreme Court issued some guidelines regarding Court in Camera. They
are as follows-
(1) Section 327 (2) of the code, imposes mandatory duty on the trial court to
conduct rape case in Camera
(2) Of permissible, preferably the cases of sexual assault on the females are
to be tried by the lady judges, wherever available.

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(3) The court should avoid disclosing the name of the prosecutrix in their

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order as for as possible to save further embarrassment to the victim of sex
crime. The anonymity of the victim of crime must be maintained as far as
possible. But, recently, the Supreme Court held that the name of victim
shall not be published even in the publication of the judgment of the
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courts.150
(4) The provisions of court in Camera shall in addition to the offences of
rape and illegal intercourse, would also be applied in inquiry or trial of an
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offence under section 354 and 377 of IPC.

(5) In holding trial of child sex abuse or rape-
(i) A screen or some such arrangements may be made where the victim or
witnesses (who may be equally vulnerable like the victim) do not see the
body or face of the accused.
(ii) The questions put in cross examination on behalf of the accused, in so
far as they relate directly to the incident should be given in writing to the
presiding officer of the court, who may put them to the victim or
witnesses in a language which is clear and is not embarrassing.

149
State of Punjab V. Gurmit Singh AIR 1996 SC 1393
150
Dinesh V. State of Rajasthan AIR 2006 SC 207
141
 (iii) The victim of rape or abused child, while giving testimony in court,
should be allowed sufficient break as and when require.
Amendment to Evidence Act relating to rape
Important amendments were also made in the Evidence Act with regard to
rape.
Section 114 A of the Indian Evidence Act, 1872 inserted by section 6 of
Criminal Amendment Act, 1983. In a prosecution for custodial rape, where sexual
intercourse by the accused is proved and the question is, whether, it was without

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the consent of the woman alleged to have been raped and she states before the

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court that she did not consent; the court shall presume that she did not consent. In a
prosecution of rape or attempt to rape, it shall not be permissible to put question in
cross examination of the prosecutrix as to her general immoral character:
On the recommendation of the 172nd report of law Commission section
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155 (4) which provided that a rape accused my show that the prosecutrix was of
generally immoral character was deleted: and under section 146 (3) a provision
was inserted by Indian Evidence (Amendment) Act, 2003.
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Certain important measures has been brought by,

The Code of Criminal Procedure (Amendment) Act, 2005
Medical examination of accused of rape- Section 53 A was inserted in the
code, by the Amendment, which provides that when a person is arrested on the
charge of committing an offence of rape or attempt to commit rape and thesre are
reasonable grounds for believing that an examination of his person will afford
evidence as to the commission of such offence, the police officer not below the
rank of sub inspector, shall send the accused to a Registered Medical Practitioner151
for medical examination. The report shall state all the reasons for each conclusion
arrived at, time of commencement and completion of the examination and this

151
Registered Medical Practitioner employed in a hospital sun by Govt or by a local authority and in the absence of
such practitioner with in the radius of Sixteen Kilometers from the place where the offence has been committed by
any other registered medical practitioner.
142
medical reports, without delay shall be forwarded to the investigating officer, who
shall forward it to the magistrate.
Where during the stage when an offence of committing rape or attempt to
commit rape is under investigation, it is proposes to get the person of such women,
examined by a medical expert, such examination must be conducted by the
Registered Medical; Practitioner, with the consent of the woman or of a person
competent to give such consent on her behalf and such woman shall be sent to such
registered medical practitioner, within 24 hours from the time of receiving the

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information relating to the commission of such offence.152 Absence of spermatozoa

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in vaginal swab and injuries on male organ and vagina, non rupture of hymen are
not sufficient to disbelieve the evidence of the prosecutrix.
It was held by Gujrat High Court that if the prosecutrix was a minor, her
testimony was reliable and trustworthy, her hymen was no ruptured and there as no
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injury on the victims private parts. The doctor opined that no rape was committed.
Despite this, the court believed the testimony of the prosecutrix by holding that
non rupture of hymen or absence of injury on the victims private parts did not
believe her testimony.153
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On the question of, the Testimony of prosecutrix in sexual offence Supreme

Court observed:
A prosecutrix of a sex offence can not be put on par with an accomplice. She
is in fact a victim of Crime. The evidence Act nowhere says that her evidence can
not be accepted unless it is corroborated in material particulars. The nature of
evidence required to lend assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of each case. If the totality of
the circumstances appearing on the record of the case discloses that the proecutirx

152
Section 164-A of CR. P.C. 1973
153
Mohd. Zuber Noormohamod Changwadia V. State of Gujrat, 1999 (4) GCD 2842
143
does not have a strong motive to falsely involve the person charged, the court
should ordinarily have no hesitation in accepting her evidence.154
The Amendment Act, 2008 has brought many transformations in procedural
law. The provisions relating to sexual offences are as follows-
The code of criminal procedure (Amendment) Act, 2008
A provisio has been inserted in section 26 of the code, which provides that
any offence under section 376 and section 376 A to 376 D of IPC shall be tried as
far as practicable by a court presided over by a woman.

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Another provisio is inserted in section 157 of the code, which provides

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further that in relation to an offence of rape, the recording of statement of the
victim shall be conducted at the residence of the victim or in the place of her
choice and as far as practicable by a woman police officer in the presence of her
parents or guardian or near relatives or social worker of the locality.
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A new clause ( 1A) has been inserted in section 173, which states that the
investigation in relation to rape of a child may be completed within three months
from the date on which the information was recorded by the officer incharge of the
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police station.
In the same section, it has also been inserted that as soon as the investigation
is completed, the officer in charge of the police station shall forward to a
magistrate empowered to take cognizance of the offence on a police report, a
report in the form prescribed by the State Government, stating whether the report
of medical examination of the women has been attached where investigation
relates to an offence under sections 376 A- 376 D of the IPC.
The offence punishable under section 354 of the IPC was compoundable
before the amendment with the permission of the court, before which any
prosecution for such offence was pending, by the woman assaulted to whom the

154
Karnel Singh V. State of M.P., AIR 1995 SC 2472
144
criminal force was used. But, the amendment has repealed such provision and
offence under section 354 is turned to be uncompoundable.
A proviso has been inserted is section 327 of the code, which provided that
in camera trial shall be conducted as far as practicable by a woman judge or
Magistrate and in the same section another proviso also has been inserted which
provides that the ban on printing or publication of trial proceedings in relation to
an offence of rape may be lifted, subject to maintaining confidentially of the name
and address of the parties.

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Gang Rape-

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Explanation 1 to section 376 (2) (g), IPC defined a specie of rape i.e. gang
rape. Where there were two persons involved, they were guilty of the offence of
committing gang rape.155
Can the conviction be set aside because the medical report did not indicate
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the number of persons who had raped. Answering this question in an appeal, in
Balwant Singh V. State of Punjab, Dutt J. Said.
We do not think that on medical examination it is possible to say about the
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number of person committing rape on a girl and accordingly in the report the lady
doctor has not expressed any opinion in this regard. The evidence of the
prosecutrix that all the appellants had committed rape on her is not inconsistent
with the medical report.
In Promod Mahto V. State of Bihar156 four persons forced entry into a house.
They were charged with raping a young unmarried girl. Medical evidence
supported the fact of rape. The conviction of all of them was upheld without it
being necessary, to show whether all of them or which of them participated in the
crime, Natrajan. J. said that:

155
Balwant Singh V. State of Punjab (1987 ) 2 SCC 27 and also Uttam V. State of Maharastra 1991 Cr LJ 1644 Bom.
156
1989 Supp (2) SCC: 672
145
 The explanation has been introduced by the legislature with a view of
effectively deal with the growing menace of gang rape. In such circumstances it is
not necessary that the prosecution should adduce clinching proof of a completed
act of rape by each one of the accused on the victim or on each one of the victims
where there are more than one in order to find the accused guilty of gang rape and
convict them under section 376 IPC.
In Pradeep Kumar V. Union Adm. Chandigarh157. It was laid down that to
bring the offence of rape in the category of gang rape it is necessary to prove-

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(i) that more than one person had acted in concert with common intention to
commit rape on victim.

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(ii) that more than one accused had acted in concert in commission of crime of rape
with pre-arranged plan, prior meeting of mind and with the element of participation
in action. It may also be in a plan formed suddenly at the time of commission of
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offence which is reflected by element of participation in action.
(iii) That in furtherance of such common intention one or more person of the group
actually committed offence of rape on victim or victims.
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In this case prosecutrix stated that accused reached spot after rape had been
committed. Mere presence of appellant accused at spot is insufficient to prove gang
rape.
Sentencing for rape.
Freidman in his law in changing society stated that
State of criminal law continues to be- as it should be- a decisive reflection
of social consciousness of society
Therefore in operating the sentencing system law should adopt the corrective
machinery or the deterrence based on factual matrix. Proportion between crime and
punishment is a goal respected in principle.

157
(2006) 10 SCC 608
146
 In Dhanamjoy chatterjee V. State of West Bengal158, the famous rape case,
court observed.
Shockingly large number of criminals go unpunished thereby increasingly,
encouraging, the criminals and in the ultimate making justice suffer by weakening
systems credibility. The imposition of appropriate punishment is the manner in
which court responds to societys cry for justice against criminal.
Should the rapist be punished with death sentence.
By the amendment of 1983, now the minimum punishment for ordinary rape

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is seven years imprisonment but a court for adequate and special reasons to be

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recoded can impose a sub-minimum sentence. This minimum rule however is not
applicable to rape of ones own wife aged below 12 years. For custodial rape, gang
rape and rape of a pregnant woman knowing about her pregnancy and the rape of a
girl below 12 it is obligatory to impose a sentence of ten years. The court has
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normally no discretion to award a sentence less than the said minimum.
Parliament was not obvious of certain very exceptional situations and hence,
to meet such extremely rare. Contingencies, it made a departure from the said strict
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rule by conferring discretion on courts;

(i) If there are adequate and special reasons.
(ii) such reasons should be mentioned in the judgment.
From the study of cases it has been seen that the court has favoured laws to
provide corporal punishment rather than the death sentence which is to be awarded
in the rarest of the rare cases. The court also considered that persons who are not
habitual offenders should not be converted into hardened criminals. The
sympathetic voice of the Supreme Court was heard in Phul Singh V. State of
Haryana.159 When it held:

158
(1994) 2 SCC, 220
159
(1979) 4 SCC 413
147
 Sentencing efficacy in cases of lust loaded criminality cannot be
simplistically assumed by award of long incarceration, for, often, that remedy
aggravates the malady. Punitive therapeutic measures must be more enlightened
than the blind strategy of person severity where all that happens is sex starvation,
brutalization, criminal companionship, Versatile vices through bio-environmental
pollution, dehumanized cell drilled under Zoological Conditions and emergence,
at the time of release of an embittered enemy of society and its values with an
indelible stigma as convict stamped on him. A potentially good person successfully

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processed into a hardened delinquent

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In this case the sentence of an accused convict, aged 22 and not a habitual
offender was reduced from four years to two years by the Supreme Court.
In Mohd chaman V. State (NCT of Delhi)160 the Crime in rape of child aged
more than one year by the appellant aged 30 years. In the process, injuries were
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inflicted upon the childs liver resulting in death. It was held that the crime
committed is undoubtedly serious and heinous and the conduct of the appellant is
reprehensible. It reveals a dirty and perverted mind of a human being who has no
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control over his carnal desires. But treating the case on the touchstone of the
guidelines in Bachan Singh V. State of Punjab161 and Macchi Singh V. State of
Punjab162 and balancing the aggravating and mitigating circumstances emerging
from the evidence on record, the case can not be called one of the rarest of rare
cases. The appellant can not be said to be such a dangerous person that to spare his
life will endanger to community. It can not be held that the circumstances of the
crime are such that there is no alternative but to impose the death sentence even
after according maximum weightage to the mitigating circumstance in favour of
the offender. The case is one in which a humanist approach should be taken. The

160
(2001) 2SCC 28
161
(1980) 2 SCC 684
162
(1983) 3 SCC 470
148
court set aside capital punishment and instead awarded rigorous imprisonment for
life.
Judicial Sensitivity
The sensitivity of the judiciary is reflected and pioneered by the following
statement of Krisxhna Iyer. J. in rafiq V. State of U.P.163
When no woman of honour will accuse another of rape since she sacrifices
thereby what is dearest to her we can not cling to a fossil formula and insist on
corroborative evidence, even if taken as a whole, the case spoken to by the victim

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strikes a judicial mind as probable---- when a woman is ravished what is inflicted

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is not merely physical injury but the deep sense of deathless shame------Judicial
response to human rights can not be blunted by legal bigotry
The case of Bodhisatwa V. Subhra Chocrovarty164 is an epitome of an
entirely new and revolutionary concept. In this case the accused entered into a false
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marriage with a woman and she became pregnant. He made her under go an
abortion but reported the same thing again. When she asked the accused to
maintain her, he disowned her on the graund that there was no marriage. The
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accused was prosecuted under sections 312, 420, 493, 496 and 498-A, IPC. The
court while refusing the appellants request to quash the prosecution case
expatiated on the existing rape laws. The court ruled that rape was not merely an
offence under the IPC, it was also a violation of a womans right to live with
dignity and personal freedom. Speaking on behalf of the court, Sagir Ahmad. J. ,
observed:
Rape is thus not only a crime against the person of a woman; it is a crime
against entire society. It destroys the entire psychology of a woman and pushes her
into emotional crisis it is a crime against basic human right and is also violative of
the victims most cherished of the fundamental Rights, namely, the right to life

163
(1980) 4SCC 262
164
(1996) 1SCC 490
149
contained in Article 21. To many feminist and psychiatrists rape is less a sexual
offence than act of aggression aimed at degrading and humiliating women
The Supreme court in yet another important judgment in Delhi Domestic
working womens forum V. Union of India.165
Suggested the formulation of a scheme for awarding compensation to rape
victims at the time of convicting a person found guilty of rape. The court suggested
that the criminal injuries compensation Board or the court should award
compensation to the victims by taking into account pain, suffering and shock as

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well as loss of earnings due to pregnancy and the expenses of child birth if it occur

(1)
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as a result of rape. The Supreme Court indicated the following broad parameters
for assisting rape victims.
The complainants of cases of sexual assault should be provided with
legal representation. It is important to have someone who is well
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acquainted with criminal justice system so that she may be made aware
of the proceedings of section 366 that deal with their nature, that is, to
prepare her for the proceedings, to prepare her case, to assist her in the
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police station and in the courts and to provide her with guidance e.g.
counseling or medical assistance.
(2) Since the victim of sexual assault might very well be in a distressed state
upon arrival at the police station, the guidance and support of a lawyer at
this state and whilst she was being questioned would be of great
assistance to her.
(3) The Police should be bound by duty to inform the victim of her right to
representation before any question were asked of her and that the police
report state the victim was so informed.

165
(1995) 1 SCC 14
150
 (4) A list of Advocates well versed in dealing with such cases should be kept
at the police station for victim who might not have a particular lawyer in
mind or whose lawyer was not available.
(5) The Advocate shall be appointed by the court, upon application by the
police at the earliest convenient moment, but in order to ensure that the
victim were questioned without undue delay, advocates would be
authorized to act at the police station before leave of the court was sought
or obtained.

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(6) In all trials related to rape cases, anonymity of the victim must be

(7)
maintained.

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It is necessary to set up a Criminal Injuries Compensation board under
the Directive Principles that are contained under Article 38 (1) of the
Constitution of India to compensate rape victim as they frequently incur
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substantial financial loss and are too traumatized to continue in
employment.
(8) Compensation should awarded to victim by the court on conviction of the
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offender or by the Criminal Injuries Compensation board whether or not

a conviction has taken place. The Board should take into account pain,
suffering and shock as well as loss of earnings due to pregnancy and
expenses of child birth of it is as a result of rape.
The Supreme Court directed the National commission for women to evolve such a
scheme so as to wipe the tears of such unfortunate victims.
Can a foreign victim of rape be awarded compensation
The Supreme Court held that a petition for compensation by a victim against
the government is maintainable even though the victim is not a citizen of India.166
A petition for compensation by the victim against the government is maintainable
under Article 22 (b) or 32 of the Constitution of India notwithstanding that a suit

166
Chairman Railway Board V. Chandrima Das (2000) 2 SCC 465
151
could be filed for damages in Civil Court . A sum of rupees ten lakh was awarded
as compensation to the victim even though she was not a citizen of India.
The Supreme Court held that: Relief can be granted to the victim not being
the citizen of India under public law as there was violation of fundamental right
firstly, on ground of domestic jurisprudence based on Constitutional provisions and
secondly on the ground of Human Right jurisprudence based on Universal
Declaration of Human Rights, 1948 which has international recognition as the
moral code of conduct having been adopted by the General Assembly of the United

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Nation.

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Extending the provisions of the Constitution to even foreigners, the court
said Even those who are not citizen of the country and come here merely as
tourists or in any other capacity will be entitled to the protection of their lives in
accordance with the constitutional provisions. They also have a right to life in
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this country. Thus they have a right to live so long as they are here with human
dignity. Just as the state is under an obligation to protect the life of every citizen in
this country, so also the State is under an obligation to protect the life of the
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persons who are not citizens.

Rape, thus is one of most inhuman and brutal forms of sexual aggression on
the dignity of a woman. Expressing the concern over the rising number of a
acquittals of those charged with rape, the Law Commission has suggested stringent
provisions in the Indian Penal Code, the Code of Criminal Procedure and the
Indian Evidence Act- besides enlarging the scope of provisions relating to rape
(Section 375, IPC) to cover even unnatural offences. It has sought, the deletion of
section 377 (unnatural offence) and its incorporation in the criminal law. Because
the legal circles feel that the rise in the acquittals is due to lacunae in the Cr. P.C.
and the Evidence Act, the commission has sought plugging of procedural
loopholes through requisite amendments.

152
 Regarding awarding death penalty to rapists, certain women activist feel that
all which has been gained over the years for justice to women would be lost if the
law is not amended to give death penalty. The acquittal rate would rise, increasing
the pressure on victims not to report this crime. To lesson the victims trauma the
commission feels that woman Judges should deal with rape cases and women
police officials should investigate such cases
(ii) Custodial Rape
Custodial rape is an aggravated form of rape. It is an assault by those who

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are supposed to be the guardians of the women concerned and are specially

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entrusted with her welfare and safe keeping. The Criminal Law (Amendment) Act,
1983 introduced new sections in the Indian Penal Code, namely, Sections 376-B to
376-D to stop sexual abuse of women in custody, care and control by various
categories of persons. In the cases of custodial rape the social power that men have
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over women gets intensified with legally sanctioned authority and power.
Custodial rape is also an instrument of political repression. Even the limited
supportive mechanism that exist for women becomes less effective when the rapist
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is a custodian.
It was held by the Supreme Court in Bharwada Bhonginbhai Hirjibhai V.
State of Gujrat167 that taking note of the fact that in India, unlike the accident, a
disclosure of rape is likely to ruin the prospect of the girls rehabilitation in a
society for all times to come and unless her story is painfully true, she would not
have taken such a grave risk merely to malign the accused. Moreover in cases of
rape, particularly custodial rape, it is very difficult to get any independent evidence
to corroborate the testimony of the prosecutrix
This kind of rape was made more punishable than rape committed by other
person not having any custody over the woman. This a based on the theory that If
protector himself eats the crops of field, then no one can protect those crops.

167
(1983) 3 SCC 753
153
Here a person in doing a double wrong; firstly he is omitting the duty to protect
the woman, and secondly committing the offence of the rape, so it is necessary to
give him severe punishment.
The Custodial rape is categorized by Sub section (a) to (d) of clause (2) of
the section 376. In this form, the offenders are such, who have to protect them by
law. These four kinds are Police officers, public servant in official advantage, any
staff of jail, remand [Observation/ special/ children] home etc and management or
one of the staff of a hospital. In all these circumstances, the victim is in the custody

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of these persons.

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(i) Police Officer- Whoever, being a police officer commits rape (I) within the
limits of the police station to which he is appointed: or (II) in the premise of any
station house, whether or not situated in the police station to which he is appointed:
or (III) on a woman under his custody or in the custody of a police officer
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subordinate to him.
(ii) Public Servant- Whoever, being a public servant takes advantage of his
official position and commits rape on a woman in the custody of such public
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servant or in the custody of a public servant subordinate to him.

(III) Member of management or staff of a jail remand (observation / special/
children/ shelter) home-
Whoever, being on the management or on the staff of a jail, remand
(observation) home or other place of custody established by or under any law for
the time being in force or of a womans or childrens institution takes advantage of
his official position and commits rape on any inmate of such jail, remand home,
place or institution or
(IV) Member of Management or staff of a hospital-
Whoever 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.

154
 The intimidative power of the above mentioned persons enables them to
isolate the woman. The more the isolation the lesser the chances of resistance a
fact used as evidence of consent later in the court. Single women, widows with
young children and women belonging to the lower strata of society who have to
eke out a living against all odds, become easy prey to custodial rape because they
are already deprived of the supportive mechanism. It was a Supreme Court
judgment in 1979168 that shocked people of their complacency and brought the
crime of custodial rape in the lime-light. The crime itself had taken place years

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before; on March 26, 1972, when a sixteen year old tribal girl who worked as a

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maid servant was brought to the police station on a complaint filed by her own
brother and was raped inside the police station while her relatives waited outside.
The Supreme Court took seven years before finally delivered its judgment. It
was with this judgment that the case explored into a Cause Celebre. Supreme Court
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acquitted the accused on the grounds that were appallingly sexist. Mathura said the
judge was not raped since she had previous sexual relations. There were no marks
on her body to show that she had resisted or put up a fight nor did she raise a cry,
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so it was proved that she consented.

When the decision came to the public there was an uproar. A mass
movement was started across the country demanding a new and more just law on
rape. In 1983 an amendment to the law was introduced in Parliament. But this
amendment has lift out a large number of persons who are also a custodial position
and commit rape on unsuspecting victims. In case of custodial rape the victim does
not resist because she is further over powered or over awed by the dominating
position of the rapist and finds herself totally helpless.

168
Tuka Ram and others V. State of Maharastra AIR 1979, SC 185
155
Rape By Protectors-
Rape by protectors of law grabbed the countrys collective consciousness
only in the 80s. It was due to the anguish of Mathura rape case that mass
supported was finally mobilized to fight hitherto unspoken crime but, all the public
indignation in the world evidently did not serve to deter the perverted elements
within the police force. Barely eight months after the uproar over the Mathura
judgment another police crime took place.
On June 18, 1980 (affair Maya Tyagi)169 few enraged policeman shot dead

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Ishwar and his friends, beat the six months pregnant Maya, stripped her naked and

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paraded her through the streets of Baghpat. At the ends of the ordeal Maya was
raped. In this case because of various legal wrangles that the trial took eight years
to be completed.
Delivering the judgment, the judge said;
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It reminds me of the primitive days of police raj where the people were at
the mercy of the despot. The gruesome killing and the beastly act which followed
were the handiwork of hungry wolves in the guise of the savior of the life and
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property of the people for the survival of the society it is essential to eliminate such
evils. The judgment of this case remains a landmark in judicial history; death
penalty for six policeman and life imprisonment for the remaining four. But most
shocking was the unrepentant attitude of the policemen sentenced: We are not
guilty. The judgment will not hold good in the High Court they said in unison after
the verdict no crime has been pin pointed-------now which policeman will touch
the criminals. This judgment raised new hopes and cheered the people. It
confirmed the observation of Justice A.N. Mulla who has described the policemen
as criminals in uniform. The jubilation over the judgment remained short lived.

169
National Herald, August 20, 1980 p. 3
156
 State of Maharastra V. Chandra Prakash Kewal Chand170 is an eloquent
example, where, after the amendment, if the prosecutrix alleges rape in custody
and states that she did not give consent, the court shall presume that she did not
consent. In this case, custodial rape was committed by a police officer in a hotel
within the limits of the jurisdiction of his own police station.
The question before the court was whether a crime committed by a person in
authority should be approached by the court in the same manner as in any other
case involving a private citizen. The infrastructure of our criminal investigation

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system recognizes and protects the right of a woman to decent and dignified

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treatment at the hands of investigating agencies. Misuse of power by them can not
be treated as an ordinary situation. In Ram Kumar V. State of Himachal Pradesh.
The prosecutrix and her husband were taken into custody by the police on the false
plea that she had been adducted. At the police station she was raped by a constable
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with the assistance of his colleague. The evidence of the prosecutrix was cogent
and reliable and local people had seen the prosecutirx being led to the police
station by the accused constable. It was held that conviction of the accused and
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punishment awarded to him was proper.

The prosecutrix in Karnel Singh V. State of M.P. was a poor labourer
working in a factory and was raped by the accused who was convicted by the lower
Courts. Against the conviction he appelled to the Supreme Court which, on the
evidence on record, found that there was no delay in filing the FIR. The rule that
evidence on victim must be corroborated had no application as the court found that
the porsecutrix could not be tested with same amount of suspicion as an
accomplice.
The presence of semen on the clothes and private parts gave full support to
the story narrated by the prosecutrix. Hence it was held that the appeal having no
merit, deserved dismissal and conviction needed no interference.

170
Vide Section 114-A. Evidence Act
157
 On the initiation of National Human Rights Commission, one head constable
from Tamil Nadu police was charged in 1995 for custodial rape and the State
Government had awarded compensation of Rs One Lakh for victim of rape. In
Many other cases also NHRC has taken initiatives and helped the victims. Many
NGOs are also helping the victim of rape in all corners of India.

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158