In this blog post, I am making suggestions for the trial of rape cases in India suggesting measures that can be taken to expedite the rape/sexual assault proceedings and, more importantly, the measures that can be taken to bring in the certainty of results reflected in the larger number of genuine convictions.

Assumptions

1. The amendments in the IPC expanding the definition of rape to include sexual assault and making the offense gender neutral, along with consequential amendments in procedural laws including the law of evidence, are acceptable.
2. The long delays in the trial of rape/sexual assault cases make the victims amenable to compromise including the marriage with the perpetrators.
3. The criminal trial per se is offensive and injurious to the dignity of the victims, irrespective whether it is held in-camera or not.
4. The public prosecutors, in general, fail to protect the victims from needlessly offensive, annoying, insulting, scandalous, indecent and/or unreasonable questions from the defence counsels.
5. A large number of false, trivial, and/or motivated rape/sexual assault cases are filed, reflected in the large number of acquittals.
6. The laws with respect to conviction on the basis of sole testimony of the victim, the irrelevance of the general “immoral” character of the victims, the irrelevance of the past instances of sexual transactions between the victim and the offender, etc., are desirable.
7. The sexual assault cases can be tried independently irrespective of the commission of other crimes in the same transaction.

Suggestions

Special Fast Track Courts and In-Camera Trial

The need for fast track courts and in-camera trials is obvious. I don’t need to even elaborate on it, so I won’t.

Forensic Evidence

The forensic evidence, though not necessary, is always desirable in rape/sexual assault cases. The rape/sexual assault cases, which are, by their very nature, devoid of independent eye-witnesses require corroboration by forensic evidence. However, there is a catch. People may start creating videos of their sexual acts just to produce them in evidence, which obviously is a serious concern. I don’t know how to take care of this problem, but the need for forensic evidence can’t be understated.

Private Prosecution

Rape/sexual assaults are undoubtedly personal attacks. A sexual attack on a woman is considered as an attack on her “izzat” (honour, prestige, dignity, respect, etc) linked to her modesty and virginity. Thus the public conscience gets invloved. But, in a gender neutral law regime, there is no occasion for attaching a false value to a woman’s sexual identity. And thus there is also no occasion for imposing a duty on the state to protect a woman’s “izzat”.

However, there is a definite need to provide state support in the form of legal help. As far as the collection of evidence is concerned, the state support is required more in terms of forensic testing than in the collection of evidence per se. As per the statistics, the perpetrator is known to the victim in 92 percent of cases. Even when the perpetrator is unknown, an enquiry can be conducted u/s 202 CrPC to identify the perpetrator. And since the sole testimony of the victim is enough to convict an accused, there is hardly any requirement of corroborative evidence except the forensic evidence.

Ideally, a victim should approach the magistrate concerned, who should immediately take the cognizance u/s 190 (a) CrPC. Thereafter he should examine the victim and his/her witnesses s u/s 200 CrPC. The magistrate taking cognizance should have the power to issue commissions, and, if the need be, he should issue commissions for the medical examination of the victim at this stage itself. Thereafter, the magistrate should immediately commit the case to the designated fast track court, where further proceedings, including those under section 202 CrPC, should take place.

One big benefit of private prosecutions in rape/sexualt assault cases would be the balancing of positions, where the prosecution counsel can and will take relevant objections at the time of cross-examination of the victim. This lack of proper cross-examination is one of the main reasons for the low conviction rates in rape/sexual assault cases.

Scientific Techniques

The supreme court has, more or less, put to rest the question of admissibility of evidence obtained from scientific techniques like narco analysis, brain mapping, polygraph, etc. It has been held that the evidence from these techniques is completely inadmissible if obtained involuntarily, and admissible only u/s 27, the Indian Evidence Act, if obtained voluntarily. Section 27, Indian Evidence Act, applies only in the case of accused persons, not in the case of a witness. Thus, the evidence of a witness obtained through scientific techniques is completely inadmissible.

However, I feel, there can be no better use of scientific techniques than in rape/sexual assault cases. It can not be doubted that there is a great likelihood of and a strong motivation to file false cases. In a gender neutral law regime, the motivation would increase further for obvious reasons. Thus, it becomes necessary to test the veracity of the victims’ testimony. I think a compromise can be made. The voluntary scientific testing can be allowed, and the negative inferences can be drawn in suitable cases for refusal to volunteer for scientific tests.

Compensation Suits

The said special fast track courts conducting the trial of rape cases in India should have the power to conduct parallel civil trials for compensation in all cases of rape/sexual assault, irrespective whether a suit has been filed or not. The issues should be framed suo-moto on the basis of the facts of the case, and the evidence should be allowed on the basis of the same. The fast track court should also impose appropriate costs u/s 35 CPC, 35A CPC, 35B CPC and 151CPCin the course of the trial. The civil trial should, in all cases, end along with the criminal trial. This, though not sufficient, may take care of at least some loss of dignity of the victims.

Collateral Issue: Criminal Law Amendment Bill

I will forward my arguments with the help of a hypothetical case of a sexual assault victim:

Mr. X, went to watch the late night show of the “T” film with Ms. Y on Z day. After the show, Mr. X went to the residential apartment of Ms. Y. They started fondling each other sexually, and, in the process, took off their clothes. Ms. Y engaged in fellatio with Mr. X, as a result of which, Mr. X’s penis erected. At this point, Ms. Y held the erected penis in her hand and tried forcing it in her vagina, to which, Mr. X said NO; however, she didn’t stop and successfully forced him to enter into her vagina.

Under the assumptions made by me above, the above testimony per se, if proved, should lead to conviction. So, the only chance available to the defence is either to successfully attack the credibility of the victim or to create doubts by leading evidence in rebuttal. However, an interesting situation would arise when Ms. Y also files a similar complaint against Mr. X arising from the same transaction. Can the two trials be clubbed together in such a case? If yes, who should lead the evidence first? If not, should the other trial be stayed till the decision in the first trial? And should the decision in the first trial, if leading to conviction, act as res judicata in the second trial? I think these questions have not been answered in the Criminal Law (Amendment) Bill introduced in the parliament.

© 2012 Ankur Mutreja