Archive for June, 2009

When she cries rape

June 18, 2009

When she cries rape

16 Jun 2009, 0000 hrs IST, ROSHNI K OLIVERA , TNN 
The questions being asked in Mumbai, in Bollywood, are not whether actor Shiney Ahuja did, as was reported, rape his 18-year-old domestic maid or had, as is suspected, consensual sex with her. The questions being asked are what happens to the man in such a case?
 How do the police distinguish between what was rape and consensual sex? Is it just the woman’s word against the man’s? What if she is lying? Or out to exploit and blackmail the man? Trap him into marrying her after what was just an affair but mutual agreement? And… further, what happens next? What is the sentence for rape? And can there be one for consensual sex between adults? Also, if (as in Shiney’s case) the man happens to be married and had consensual sex, is he only guilty of adultery? And if he is married and has committed rape, what kind of sentence does he face for the crime? Most Indian laws, framed during the colonial days of the British Raj, remain as grey as ever with prosecuting authorities struggling to get convictions while defence lawyers pick holes in the chargesheet. Even while the police muddle their way through the many ‘rape’ cases in their files, BT posed these questions to criminal law experts.

Can consensual sex be easily proved?
“In the case of rape, the evidence of the victim is enough,” says lawyer Satish Maneshinde. “Proving it wasn’t rape but consensual sex, is very difficult.” If there are no signs of aggression on the victim, it could indicate consensual sex, but that’s not sufficient as evidence. “To prove consensual sex, there should be evidence in the form of SMSes or telephonic calls which show there was an involvement. Even if the victim is known to be a prostitute or a condom was used, yet it’s not accepted as consensual sex,” says Maneshinde adding, “Where the victim is from a weak social and economical background or there’s an employer-employee angle, the tilt is always towards the victim.”

What amounts to rape?
According to Section 375 of the IPC, a man is said to commit “rape” when he has sexual intercourse with a woman… 1) Against her will 2) Without her consent 3) If her consent was obtained by putting her or any person she’s interested in under fear of death or of hurt 4) With her consent, when the man knows that he is not her husband, but she believes that he is the man she is lawfully married to 5) If consent was given under intoxication or unsound mind.
But change is the need of the hour. Lawyer Shrikant Bhat makes a point: “This section was drafted between 1833 to 1837. Times have changed, physiology hasn’t changed. So what requires to be changed is the interpretation. The word ‘consent’ or ‘against her will’ has to be interpreted such that one question is asked — whether the girl had the sexual desire during the period of physical intimacy (not necessarily intercourse). Lubrication of vagina would be one of the indications of sexual desire which medically can be found out. If the girl had a sexual desire then it’s not rape.”

Minor versus adult?
If the victim is a minor, then there’s no question of consent; it amounts to rape in any case, according to the IPC. When the victim is less than 16, it doesn’t matter whether the sexual act was carried out mutually or if the perpetrator and the victim were involved at one point.

What about adultery?
Whether it’s rape or consensual sex, what about adultery if the person is married? “Generally our system doesn’t take serious cognisance of adulterous activity. That’s because the aggrieved party, which is the wife, has not complained,” explains lawyer Majeed Memon. “There are two different aspects that come to the fore in the Shiney Ahuja case — 1) The exploitation of maids or aspiring actresses 2) You cannot rule out a conspiracy to falsely implicate a celebrity.”

Are men at a disadvantage in our system?
In matters of rape, men are always at a disadvantage in our system, feel experts. “That’s because they are considered the more aggressive of the two sexes,” says Maneshinde.

Bhat adds, “Section 114 A of the Evidence Act says, ‘If she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.’ An innocent man will be convicted on this presumption. Also, the previous sexual conduct of the girl cannot be brought on record in the inquiry or cross examination under the same Act.”


Dowry accused gangraped by Bhopal cops in custody

June 18, 2009

This letter is in response to the below mentioned news in Times of India.

Dowry accused gangraped by Bhopal cops in custody

6 Jun 2009, 0208 hrs IST, Suchandana Gupta, TNN


Dr. Manmohan Singh,

Prime Minister of India,

South Block, Raisana Hill,

New Delhi – 110001.


Subject:  Demand for a CBI Investigation in the case of alleged rape of an Old female Dowry Accused from Jamwada village in district Betul, Bhopal, M.P. and Immediate notification of “THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) BILL, 2008”


Respected Sir,

This is to bring to your kind attention that there is an alleged Gang rape of a woman accused in a dowry case as reported in the Times of India dated 06th of June 2009 titled “Dowry accused gangraped by Bhopal cops in custody”.

Sir, Indian Public has given you the mandate and this is the time to show commitment to women as per the promises in the manifesto of UPA. UPA government’s projection of their own initiatives to empower women and provide them safety and prosperity doesn’t end by just electing first woman speaker of Lok sabha or giving India its first woman president.

The real case has not started yet, but life of the poor old woman has got destroyed. The real question that arises after reading such the happenings of such horrific incidents is: “Why the notification of the “The Code of Criminal Procedure (Amendment) Bill, 2008” which could save innocent citizens from being jailed and fasten the process of investigation & trial of rape cases in the Gazette of India is on hold?”

I would request you sir to please order a CBI probe into the reported case as it is a sensitive case of harassment of a women accused in custody of police and against humanity. If the lawlessness in the state of Madhya Pradesh has been deteriorated to such an extent that the basic human rights and rights of an accused in custody, that too in just a family matter as envisaged in

  1. 1.      SHRI D.K. BASU VS STATE OF WEST BENGAL[1997] S.C.C. (crl) 92 And
  2. 2.      JOGINDER KUMAR Vs. STATE OF U.P. – 25/04/1994 (CITATION 1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662)


could not be protected, a serious and thorough probe by CBI is a must. The CBI must come out with a report into:


1. What was the need of arresting a female accused in case of dowry complaint (498a) when there had been on various occasions the Honb’le Supreme Court of India has instructed to practice caution while arresting the accused in cases of crime under section 498a of IPC. A thorough and complete report must immediately be sought from CBI to unearth the misuse of discretionary “powers of arrest” while there may not be a “need to arrest”.

I would like to draw attention of the Honb’le Prime Minister on the third report of the National Police Commission, which refers to the quality of arrest by the police in India. The report had mentioned that “power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified”.

It is to be noted that more than 1,23,497 women were arrested and most of them jailed in last 4 years under section 498a of IPC without investigation or credible evidence under the rule of UPA government. Surprisingly, statistics published by the National Crime Records Bureau in 2007, states that an overwhelming 94% of the individuals arrested under IPC Section 498A were found not guilty. This itself shows the enormous powers police used to enjoy.

Had the previous UPA govt. Notified the “The Code of Criminal Procedure (Amendment) Bill, 2008” in the Gazette of India, the life and modesty of the concerned old woman could have been saved. As in that case the Investigating officer must have to record the reasons for arresting her or he/she must have issued the accused woman a “Notice to appear as per the amended section 41 of CRPC. But the UPA govt. bowed down to the irrational demands and illegal protests of a handful of lawyers that too just in the courts of National capital Region of Delhi.


2. If the concerned female accused was arrested and produced in the local court, why the bail was not granted by the concerned Honb’le judge? The allegations against her would have been some “Dowry Harassment” and her custody must have been required just for the purpose of investigations in to the allegations of her daughter-in-law. Then why the learned Judge didn’t awarded her with a bail and secured her presence by way of a bail bond or surety? Was the lady a history sheeter or committed any heinous crime? Is this the price an old woman has to pay in the rule of UPA for being a mother of a man and marrying her son to a “legal terrorist”?


In all the lower courts in India especially in stated of Bihar, Madhya Pradesh, chhattisgarh U.P. etc. There is a strong nexus between judges, police and lawyers in bail matters for extorting money from the accused by threatening them to send them behind bars. In this nexus the lower court judges play important roles by flouting all the guidelines of the Honb’le Supreme court of India which has always and time to time pronounced in its judgments that “Bail is a rule and Jail is an exception” and that too in case of a female accused?


I again emphasise on the need of a CBI probe to unearth the scam between lower court judges, police and lawyers who all are sucking blood of poor accused for granting bail to them.

3. The rape of the old woman has alleged to be happened in the custody of non other than the police itself. Now when “Rakshak has become Bhakshak themselves”, nobody could imagine of a fair investigation and fast delivery of justice to the poor old rape victim. After a lot of deliberations when the “The Code of Criminal Procedure (Amendment) Bill, 2008” for the investigation and trial of rape cases and various safety measures has been passed by both the houses of parliament and the Honb’le president of India has already given her ascent to the bill, it is a shame on the part of the UPA government for causing unnecessary delay in notifying the “The Code of Criminal Procedure (Amendment) Bill, 2008”. The various sections of the bill provides for various new directions regarding the investigation of rape cases, like:

  • Recording of the statement of the victim at her own residence.
  • Rape investigation in a child rape case to be finished within 3 months
  • Confidentiality of the name and address of the parties.
  • Compensation and rehabilitation of  victims etc.

 National Commission for Women or Women and Child Development ministry is not going to do its duty and use its power to take suo motto cognizance of the crimes like reported above as no political angle could be given to the facts (unlike mangalore pub incidence) and no political milage could be obtained out of that. Elections are over !!

These landmark reforms in CrPC regarding the way police conducts itself will bridge the huge gap between police and the citizens. Till now, Indian police inherited unconditional power of arrest from police in British Raj, whose goal was to enforce fear in the minds of people of India. Indian police enjoyed the maximum powers to arrest people arbitrarily compared to many evolved democracies in the world.

India is a democracy which requires high concern of the life and liberty of its citizens. Regularization of process and introduction of accountability is a necessary ingredient of the requirement. Passing “The Code of Criminal Procedure (Amendment) Bill, 2008”, the Government of India will be implementing the above requirement in practicality.

All India Forgotten Women demand that the Government notify “The Code of Criminal Procedure (Amendment) Bill, 2008” in the Gazette of India at the earliest.