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Capital punishment for Rapists

The gang rape of a 24 years old MBA student in Noida recently, in broad day light, has shocked everybody. Once again it has opened the debate, whether if capital punishment is the solution to the problem. Woman’s rights groups have strenuously lobbied for capital punishment for rapists as they believe that death will be an effective deterrent for prospective rapists. A careful study is required before any such amendment in the law, one because there is the inherent danger of abuse and second because capital punishment being irreversible, courts will have to proceed with utmost caution.

Under the Indian Penal Code the punishment for rape is imprisonment for a minimum period of seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. Punishment for gang rape is rigorous imprisonment for a minimum period of ten years but which may be for life. As is evident, from plain reading of the above provision, punishment of rape is quite stringent, but sexual offences still occur routinely. The problem is not of inadequate punishment, but of improper implementation. A large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by the doctors, the law enforcement personnel and the cross examining defense attorneys. The fear has to be allayed from the mind of women so that if and when the crime is committed, the victim may promptly report the matter to the police and on a charge-sheet being submitted, the trial may proceed speedily.

Even the rape cases which are reported rarely reach their logical conclusion. The courts must, while evaluating evidence, remain sensitive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. Supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the victim, must not be allowed to throw out a otherwise reliable prosecution case. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitates looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim alone. The jurists have made an earnest effort to eradicate these shortcomings, for instance, insertion of section 114-A in the Indian Evidence Act by the amendment of 1983. This amendment was precipitated by the sensational acquittal in ‘Tukaram vs State of Maharashtra’ also known as the Mathura rape case. Before this amendment, burden of proving rape was on the prosecution, but after the amendment the burden of proving that the act had been consensual has shifted to the accused. In simple words, after the amendment, if the victim states that the said act had been done without her consent, then her word is taken for it, unless proved otherwise by the defense. Insertion of this provision has tilted the odds in favour of the prosecution.

Then, prolonged trial also adds to the harassment of the victim. The legal fraternity has responded to this problem by instituting fast track courts to try sexual offenders, like the trial of Biti Mohanti, son of former DGP of Orissa on the charges of rape of a foreign tourist, where the accused was tried and sentenced in a few weeks time. Another, positive step in this direction is the conduct of in-camera proceedings in cases of sexual offences.

Sexual offences against tourists and working women are on the increase. Immediate steps must be taken to improve their security. Women should be trained in self defense techniques, like the use of peppermint spray and shock guns. Police should be equipped with faster vehicles, so that they reach the crime scene promptly. Companies should frame rules which prohibit night shifts for women and if women are to work late night shifts, the companies should provide for safe transportation. Similarly, tourists on landing in India must be given an advisory on how to dress and behave in public.

Women’s rights groups will do well, if instead of indulging in rhetoric about stringent laws, they were to increase the awareness among common folk about the humiliation and suffering of a rape victim and by providing necessary financial and legal assistance to rape victims. The courts should also act with utmost sensitivity in such cases. The court should examine the broader probabilities of a case and not get swayed by minor contradictions. Stringent implementation and not death penalty is the need of the hour.

Compiled by Harkirat Ghuman (Advocate), Chandigarh.