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Rape rulings, reasoning cause revulsion

Ashish Tripathi, New Delhi, DH News Service, Oct 12 2017, 0:31 IST

These two cases surely must be brought to the Supreme Court, where the victims will hopefully get justice.

Two recent judgements in rape cases -- one relating to a film producer and the other concerning three students from Jindal University -- have thrown judicial propriety and precedent to the winds. Both verdicts shamed the victims, in disregard to the Supreme Court's rulings in a number of other cases.

The apex court has time and again asked the courts to be sensitive and responsive to the plight of the female victim, as rape is the worst form of oppression of a woman, who suffers humiliation, feelings of disgust, tremendous embarrassment, shame, trauma, all of which become lifelong emotional scars.

In the case lodged by a US researcher against Bollywood producer Mahmood Farooqui, the Delhi High Court on September 25 made an elaborate discussion on “myriad circumstances, surrounding a consent” to acquit him. The court said, “It may not necessarily always mean yes in case of yes or no in case of no.”

It looked into the circumstances and past conduct between the accused and the victim to conclude “an expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape”. The single judge bench went on to add, “Instances of a woman’s behaviour are not unknown when a feeble 'no' may mean a 'yes'”.

Similarly, in another case pertaining to the repeated sexual assault on an MBA student of Jindal University, the Punjab and Haryana High Court's division bench on September 13 suspended the sentence of the three accused students and granted them bail. It found the victim's testimony offered an “alternate conclusion of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters.”

Though she claimed her seniors had obtained her explicit pictures on WhatsApp to exploit her, the court said, “careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and voyeuristic mind”.

The HC's reasonings in both the cases invited revulsion as they went against the very basics for examining a rape case in detriment to the rights of the victim. It has already been held in a number of rulings that under Section 114-A of the Indian Evidence Act, 1872, “if the prosecutrix deposes that she did not give her consent, then the court shall presume that she did not, in fact, give such consent”. Section 90 of the Indian Penal Code also stated “a consent is not to be treated as such, if it is given by a person under fear of injury, or under a misconception of fact”.

In Kaini Rajan vs State of Kerala (2013), the Supreme Court held that “consent is stated to be an act of reason coupled with deliberation and it denotes an active will in the mind of a person to permit the doing of an act complained of”.

In State of UP vs Chhoteylal in 2014, the Supreme Court said, “In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations.” It also held that a woman who is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice.

In State of HP v Mango Ram, a three-judge bench of the apex court, while dealing with the aspect of ‘consent' in the offence of rape, said, “Consent, for the purpose of Section 375 (rape), requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance (and) assent.”

In Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, the top court said, “In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury”.

Dealing with a case pertaining to eve-teasing of a rape victim by the accused, the apex court in April this year posed a query as to why women in this country cannot be allowed to live in peace and lead a life that is empowered with dignity and freedom. “She has a right to life and is entitled to love according to her choice. No one can compel a woman to love. She has the absolute right to reject,” it said.

The acquittal of Farooqui in the US scholar rape case and the suspension of sentence and bail for students in Haryana could have happened even otherwise, if the judicial conscience found it to be so, but the reasonings cited in the two cases are not justifiable. These cases surely must be brought to the Supreme Court, where the victims will hopefully get justice.

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